State of Louisiana v. Dillon James Merritt

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-946
STATE OF LOUISIANA

VERSUS

DILLON JAMES MERRITT

**********
APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C3148A
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

**********
ARTHUR J. PLANCHARD
JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and
Arthur J. Planchard*, Judges.

AFFIRMED.

Thibodeaux, C.J., dissents in part and assigns written reasons.

Van Hardin Kyzar
District Attorney, 10th J.D.C.
P. O. Box 838
Natchitoches, LA 71458-0838
Counsel for Appellee:
State of Louisiana

Phyllis Elaine Mann
Post Office Box 705
Alexandria, LA 71309
Counsel for Defendant/Appellant:
Dillon James Merritt

*
Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

PLANCHARD, Judge1.

Defendant, Dillon James Merritt, was charged by amended bill of

information with four counts of cruelty to juveniles in violation of La.R.S. 14:93. A

jury trial commenced on September 17, 2002, and on September 19, 2002, the jury

found Defendant guilty as charged on all four counts. On November 18, 2002,

Defendant filed a motion for a new trial and a motion for post-verdict judgment of

acquittal. The trial court denied the motion for a new trial on November 19, 2002,

without written reasons. A hearing on Defendant’s motion for post-verdict judgment

of acquittal was held on November 27, 2002, at which time the trial court denied the

motion. On January 31, 2003, Defendant was sentenced to two years at hard labor

each on counts one and four, and seven years at hard labor each on counts two and

three. All the sentences were ordered to be served consecutively for a total term of

imprisonment of eighteen years at hard labor. Defendant’s motion to reconsider the

sentences filed on January 31, 2003, was subsequently denied without written reasons.

Defendant now appeals his convictions and sentences.

FACTS:

Defendant married the victim’s mother, K.R., in May 2001. At the time, the

victim, A.R., was two and one-half years old. On July 6, 2001, Defendant, while

holding the victim’s eyelids open, sprayed hair spray into her eyes, causing corneal

abrasions (count #1). Subsequently, on July 14, 2001, the Defendant twisted the

victim’s left leg in such a manner as to cause a spiral fracture of the lower tibia (count

#2). Then, on August 6, 2001, the Defendant pulled the victim’s right arm back in

such a manner as to fracture the bone of the upper arm (count #3). Following the latter

1
Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

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two incidents, the Defendant refused to allow the victim to receive medical attention,

thereby prolonging her pain and suffering from the injuries (count #4).

ASSIGNMENTS OF ERROR:

Defendant alleges six assignments of error. In assignments of error numbers

one, two, four and five Defendant contends the evidence was insufficient to convict

him of cruelty to juveniles as charged in the amended bill of information. Defendant’s

assignment of error number three alleges the trial court erred when it allowed the

admission of certain testimony of a child abuse expert which pertained primarily to the

injuries alleged in counts two and three. Finally, in assignment number six, Defendant

asserts his sentences are excessive under the circumstances, and that the trial court

erred when it ordered the sentences to be served consecutively.

We will address the sufficiency of the evidence first as to each of the four

counts; then address whether the trial court erred when it allowed the expert witnesses’

testimony and the alleged inadmissible statements’ application to the sufficiency of the

evidence as it pertains to counts two and three. Finally, we will address Defendant’s

allegation that the sentences are excessive.

ASSIGNMENTS OF ERROR NUMBER 1, 2, 4, and 5:

Defendant alleges that the evidence was not sufficient to sustain the verdicts of

cruelty to a juvenile on each count charged in the amended bill of information,

particularly since Defendant was convicted primarily on circumstantial evidence.

When sufficiency of the evidence is raised on appeal, this court has held:

When the issue of sufficiency of evidence is raised on appeal, the

critical inquiry of the reviewing court 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 proven

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beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, rehearing denied, 444 U.S. 890, 100 S.Ct. 195 (1979); State ex rel.

Graffagnino v. King, 436 So.2d 559, at 563 (La.1983); State v. Duncan,

420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981).

The role of the factfinder is to weigh the respective credibility of each

witness. Therefore, the appellate court should not second guess the

credibility determinations of the factfinder beyond the sufficiency

evaluations under the Jackson standard of review. See State ex rel.

Graffagnino, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228

(La.1983).

State v. Miller, 98-1873, p. 5 (La. App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ

denied, 99-3259 (La. 5/5/00), 761 So.2d 541.

Additionally, in State v. Ortiz, 96-1609, p. 12 (La. 10/21/97), 701 So.2d 922,

930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352 (1998), our supreme court stated:

When circumstantial evidence is used to prove the commission of the
offense, La.R.S. 15:438 requires that “assuming every fact to be proved
that the evidence tends to prove, in order to convict, it must exclude
every reasonable hypothesis of innocence.” This is not a purely separate
test to be applied when circumstantial evidence forms the basis of the
conviction; all evidence, both direct and circumstantial must be sufficient
to satisfy a rational juror that the defendant is guilty beyond a reasonable
doubt. State v. Porretto, 468 So.2d 1142 (La.1985).

See also State v. Rosiere, 488 So.2d 965(La.1986); State v. Matthews, 464 So.2d 298

(La.1985); and State v. Patterson, 295 So.2d 792 (La.1974).

Louisiana Revised Statutes 14:93(A), cruelty to juveniles, provides:

Cruelty to juveniles is the intentional or criminally negligent
mistreatment or neglect, by anyone over the age of seventeen, of any
child under the age of seventeen whereby unjustifiable pain or suffering

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is caused to said child. Lack of knowledge of the child’s age shall not be
a defense.

The term “intentional” in this case means a general criminal intent to cause a child

unjustifiable pain and suffering and “mistreatment” means abuse. State v. Porter, 99-

1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115.

The following are the undisputed facts established at trial:

A.R. was born December 18, 1998. A.R. was the second child of J.K.R. and

K.R. The couple divorced in May 2001, after being separated for several months. A

few days following the divorce proceedings, K.R. married the Defendant, and with

her two daughters moved into his house. Prior to K.R.’s marriage to the Defendant,

the custody arrangement between the children’s father and K.R. was that she had

physical custody of the children from Thursday afternoon to Sunday noon and the

children’s father had physical custody from Sunday noon to Thursday afternoon.

There was a provision in the custody agreement that K.R. was not supposed to spend

any nights with the Defendant when she had custody of the children. Following her

marriage to the Defendant, starting June 2001, the physical custody arrangement of the

children was changed so that from the first to the fifteenth of the month, K.R. had

physical custody and from the fifteenth to the end of the month, the children’s father

had physical custody of the girls.

On June 11, 2001, Defendant brought the victim to her mother and told her that

A.R. had fallen off her bed and hurt her foot. The child was limping and complained

of a hurt foot. The next day, K.R. took A.R. to see Doctor Garland Miller at DeSoto

Regional Family Medicine. A.R.’s right ankle was X-rayed but there was no notable

injury to the foot. The doctor diagnosed a sprained ankle. On June 16, 2001, after the

children went to their father’s home, D.R., the paternal grandmother, took A.R. to

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Natchitoches Parish Hospital because A.R. continued to limp. This time her left foot

was X-rayed, but there appeared to be no discernable problem.

On the morning of July 7, 2001, K.R. awoke to find the Defendant in the

bathroom rinsing out the victim’s eyes. He told her that A.R. had sprayed herself in

the face with hair spray. K.R. and Defendant took A.R. to the emergency room at

Sabine Medical Center. Because of a long wait, they did not stay, but bought a bottle

of Visine to put in her eyes. The next day, because A.R.’s eyes had become so painful

and swollen she could not open them, K.R. took her back to Sabine Medical Center

where A.R.’s examination revealed corneal abrasions in both eyes.

On the morning of August 6, 2001, the Defendant brought the victim to K.R.

and told her A.R. hurt her shoulder when she jumped off her bed. However, he

refused to allow K.R. to attend to the child. Later in the morning, K.R. called her

mother, Terry Matthews. Ms. Matthews went to the Defendant’s house and, after K.R.

and the Defendant began to argue, attempted to remove both of the girls from the

house. As Ms. Matthews was putting the children in the car the Defendant came out

and began to argue with her. Ms. Matthews left without the children. Later in the day,

Ms. Matthews called child protection services and the children were removed from the

house. A.R. was taken to the Sabine Medical Center Emergency Room where it was

discovered that, among other injuries, she had sustained a spiral fracture of the left leg

and a fractured right arm.

Count Number 1:

Count number one of the amended bill of information alleged that on July 6,

2001, Defendant caused the victim unjustifiable pain and suffering by spraying hair

spray into her eyes. In brief, Defendant argues that the State failed to prove that he

5

sprayed hair spray into A.R.’s eyes. The Defendant contends that the State did not

exclude the reasonable hypothesis that A.R. sprayed herself in the face.

The victim’s mother, K.R., testified she had physical custody of the children in

the first two weeks of July. Upon waking up one morning, she found the Defendant

rinsing A.R.’s eyes with water. He told her that A.R. had sprayed herself in the eyes

with K.R.’s hair spray. He said that he found the hair spray bottle on A.R.’s bed. K.R.

testified that it was a pump type of bottle of Finesse hair spray, not an aerosol. When

asked if the pump part of the bottle had an interlocking groove, K.R. answered, “No,

I don’t believe it had the groove but it’s still kind of difficult to push if you’re little.”

K.R. testified that it was her suggestion to take A.R. to the emergency room.

The Defendant argues that A.R. admitted she sprayed herself in the eyes. He

further argues that A.R.’s sister, H.R., also said A.R. sprayed herself. K.R. testified

that at the time of the incident both of the girls told her A.R. sprayed herself. However,

K.R. further testified that after the children were removed from the household they

began to tell her a different version of the incident:

A. Yes, now that I’m dealing with them. . .now that we are away
from Dillon, [A.R.] says a different (inaudible) of her story.

Q. Okay. She told you what happened didn’t she?

A. Yes. She’s actually told me that Dillon had held her eyes
opened and sprayed hair spray in them.

Although, other than K.R.’s testimony, there was no direct evidence presented

at trial that it was the Defendant who sprayed hair spray into A.R.’s eyes, we find that

it was reasonable for the jury to have inferred from the circumstances that the

Defendant committed the crime. In Porter, 761 So.2d 115, 123-24 (emphasis added),

this court held:

6

Circumstantial evidence consists of the proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience. State v. Guillory, 670
So.2d [301,] at 304, citing State v. Donahue, 572 So.2d 255 (La.App. 1
Cir.1990). The circumstantial evidence rule does not require the State to
exclude every possible theory of innocence, but only the reasonable
hypotheses of innocence. State v. Lilly, 468 So.2d 1154 (La.1985). In
circumstantial evidence cases, this court does not determine whether
another possible hypothesis suggested by a defendant could afford an
exculpatory explanation of the events. Rather, this court, evaluating the
evidence in the light most favorable to the prosecution, determines
whether the possible alternative hypothesis is sufficiently reasonable that
a rational juror could not have found proof of guilt beyond a reasonable
doubt under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). State v. Davis, 92-1623 (La.5/23/94); 637 So.2d
1012, certiorari denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359
(1994).

The jury heard testimony that all of the injuries Defendant was accused of

inflicting occurred during the time A.R. was in her mother’s custody and in the

Defendant’s home. The custody arrangement had been changed starting the first of

June. The victim lived in the Defendant’s house for three months, June, July, and

August; therefore, there were three periods of two week visitation, and in each period

A.R. suffered a painful injury. Each time it was the Defendant who discovered the

victim was injured, and each time the Defendant blamed the victim for causing her

own injury. The extent of A.R.’s injury to her eyes was substantiated by the records

from Sabine Medical Center. Moreover, K.R. testified that A.R. told her that the

Defendant sprayed her in the eyes with the hair spray. Defendant did not object to this

testimony. Furthermore, the jury heard convincing testimony of two doctors (argued

below) that the injuries to A.R.’s leg and shoulder were most likely caused by non-

accidental trauma, rather than by falling off her bed.

In evaluating the evidence in the light most favorable to the State, we find that

Defendant’s hypothesis was not sufficiently plausible under the circumstances that a

rational juror could have found the State failed to prove its case beyond a reasonable

7

doubt. The jury was reasonable when it discarded Defendant’s hypothesis that it was

A.R. who caused her own injury by spraying herself in the face with hair spray and

found the Defendant guilty beyond a reasonable doubt. This claim is without merit.

Count Numbers 2 and 3:

Count number two of the amended bill of information alleged that on July 14,

2001, the Defendant caused the victim unjustifiable pain and suffering by twisting her

left leg in a manner that resulted in a spiral fracture of her leg. Count number three

alleged that on August 6, 2001, Defendant caused the victim unjustifiable pain and

suffering when he twisted the victim’s right arm in such a manner as to result in

damage to her shoulder of such magnitude that surgery was required.

Doctor Geoffrey Collins, an orthopedic surgeon, saw A.R. the day following her

admission to the emergency room. He testified that on August 7, 2001, he was

contacted by Sabine Medical Center to see and treat the victim. Doctor Geoffrey

described A.R. when he first saw her as follows:

When she arrived there uh, immediately appeared to me that uh,
[A.R.] was not in overall good condition. Uh, she had what appeared to
be a blood clot in the square of her eye so the lateral aspect of her eye
was obliterated by blood. Uh, she had rashes behind both ears. Uh, she
had some scratches on her thigh. Uh, she was refusing to move her right
arm and uh, she was uh, very resistant to any motion or palpation of her
left lower leg.

Regarding the victim’s left leg, the doctor further stated:

Uh, the x-rays of her left lower leg indicated she had a long spiral
fracture of the uh, left tibia. Uh, that fracture did not appear to be new.
There was some bone formation there indicating that that [sic] fracture
uh, had been there for somewhere in the neighbor hood of two to four
weeks.

In regard to the shoulder injury, the doctor testified:

After we finished our exam we repeated the x-rays and uh, the x-
rays were uh consistent with a right proximal humerus growth plate
injury with displacement.

8

....

The right proximal humerus is the top of the arm bone right up at
the top. There’s a growth center there that gives you the length of your
arm and her injury was through that growth center at the top of the arm
right below the ball of the shoulder.

The doctor further testified:

Uh, I felt that uh, her basic diagnosis, her definitive diagnosis was
a right proximal humerus growth plate injury a left tibia fracture–two
injuries that occurred on different days. Uh, and I diagnosed her with one
or both of either being uh, poorly taken care of or abused based on the
nature of her leg injury and two injuries, significant injuries of various
ages.

The doctor performed immediate surgery inserting metal pins into the shaft of

the long bone and then into the ball joint of the shoulder in order to realign and affix

the growth plate. He also set and placed a permanent cast on the victim’s leg. When

asked if he had an opinion about the cause of the injuries, the doctor testified as

follows:

A. I think in my report uh, fairly clearly on 8-7 of 2001 impression
reads – my impression is that [A.R.] is clearly a product of neglect and
or abuse resulting in the left spiral tibial shaft fracture and a right
proximal humeral ficial injury. That was my impression of that visit.

Q. Under all the circumstances that you’re aware of uh, do these
injuries uh, appear to you to be consistent with child abuse?

A. Any time–they have two factors that make me think so. The
first is a very young child with a long bone spiral fracture is a major red
flag for abuse. On top of that, two injuries at different ages is a second
major red flag for abuse.

On cross-examination, the doctor stated that it is possible the injury could have

resulted by another mechanism other than abuse, such as the foot getting stuck in a

piece of furniture and fracturing as the child twisted somehow. The doctor further

speculated that there were two injuries to A.R.’s leg, one that occurred two to four

weeks prior to his seeing her and one that occurred more recently which was the cause

9

of the immediate pain she was experiencing during the examination. Moreover, the

doctor testified that it was highly unlikely the two injuries to A.R.’s leg would have

occurred in the same way, particularly from a fall from a high place such as a bunk

bed. He further stated that, generally, this type of fall would cause a buckle fracture

rather than a spiral fracture. With regard to the shoulder injury, the doctor testified

that the injury could have occurred if A.R. had fallen from the top of a bunk bed.

K.R. testified that the two girls slept together in a bunk bed. The bed was the

type that has a full size mattress on the bottom and a single mattress on the top bunk.

However, the bunk bed in the girls room had neither a mattress nor a platform for a

mattress on the top position, rather it had just a bar where a platform could be placed.

She further testified that although A.R.’s sister could climb to the top of the bunk bed,

A.R. could not.

Doctor Ann Springer, a pediatrician and an expert in the field of child abuse

medicine, testified she saw A.R. on August 15, 2001. Regarding the injuries to A.R.’s

leg and shoulder, Doctor Springer’s description of the injuries was essentially the same

as Doctor Collins’. Doctor Springer testified that during the examination she asked

A.R. what happen. When asked what A.R. told her, the doctor testified:

A. She said that uh, her right arm was lifted and pulled back hard
and she also said that her leg had been twisted.

Q. Did she give you any indication of how many times?

A. Twice on the leg.

Q. Did she tell you who had done this?

A. Yes.

Q. Who did she tell you had done it?

A. She said her stepfather.

10

It is this portion of Doctor Springer’s testimony that Defendant argues was

inadmissible pursuant to La.C.E. art. 803(4), whereas she was not the victim’s treating

physician. This assignment is addressed at length below.

The doctor testified that the two fractures, that of the shoulder and the leg,

required significant force to inflict, “comparable to an automobile accident.” She

testified that they were life-threatening injuries. She further testified that a strong

adult male could exert enough force to cause the fracture to A.R.’s leg. Finally, the

doctor testified that, in her opinion, there was no other reasonable hypothesis to

explain A.R.’s injuries other than that they were inflicted on purpose.

Finally, K.R. testified that A.R. told her that the Defendant hurt her. “‘Dillion

did my arm like this.’ And she bent her arm back.” The Defendant did not object to

this testimony.

Again, we find the evidence, both direct and circumstantial, was sufficient for

the jury to reasonably conclude that the Defendant caused the two above described

injuries. In State v. Lott, 535 So.2d 963 (La.App. 2 Cir. 1988), the second circuit

stated:

Exclusion of every reasonable hypothesis of innocence is a
component of the more comprehensive reasonable doubt standard, when
circumstantial evidence is used to convict. Thus, the circumstantial
evidence rule may not establish a stricter standard of review than the
more general Jackson v. Virginia formula; but, a hypothesis of innocence
that is sufficiently reasonable and sufficiently strong must necessarily
lead a rational factfinder to entertain a reasonable doubt about guilt. See
United States v. Bell, 678 F.2d 547 (5th Cir. 1982); State v. Sutton, supra
[426 So.2d 471(La. 1983)].

Id. at 966.

Defendant argues that the State did not exclude the reasonable hypothesis that

A.R. injured her leg and shoulder when she jumped or fell off the bed. When a case

involves circumstantial evidence, and the trier of fact reasonably rejects the

11

hypothesis, the defendant is guilty unless he can offer another hypothesis which would

raise a reasonable doubt. Considering the totality of the circumstances, we find the

evidence offered by the State was sufficient to rule out any theory of accidental injury.

At the time of the injuries, A.R. was two and one-half years old. Her mother testified

that A.R. could not have climbed to the top of the bunk bed. Doctor Collins testified

that while it was possible for a child to incur such injuries in a fall from the top of a

bunk bed, he opined that for both injuries to happen at the same time was highly

unlikely. Doctor Springer testified A.R. told her that her stepfather caused the injuries.

This testimony was corroborated by K.R., who testified A.R. told her the Defendant

sprayed hair spray in her eyes, and pulled her arm back. Moreover, the record

demonstrates that the Defendant exhibited a guilty state of mind when he and K.R.

followed A.R. to the hospital.

Joyce Reliford, a child protection investigator with the Department of Social

Services, Office of Community Services, was one of the social workers who went to

the Defendant’s house on August 6, 2001, and took custody of the children. She

transported A.R. to the emergency room, where the Defendant and K.R. arrived

shortly thereafter. Ms. Reliford testified the Defendant raised a ruckus at the hospital.

She said:

Frankly he was quite obnoxious and saying–well, he was saying
a lot of things like uh, there was nothing wrong with her when she left
the house. Y’all could have done something to her. You know, and
whose to say y’all didn’t hurt her and you know, things of that nature.
And uh, he sort of taunted the foster mother who was real excitable and
she was afraid.

K.R. testified:

When I was in the Emergency Room I had started calming down
because I knew the girls were there and the doctor was coming back and
forth and talking to me and everything so I started calming down. He
kept coming in the Emergency Room talking about act like you’re really

12

upset and act like you can’t talk and this, that and the other. And I kept
asking him why, you know, I’m fine. I’m talking to the doctor’s [sic] and
everything and then after um, they got me calmed down, Dillon–I wanted
to leave and just, you know, handle everything the right way and he kept
wanting me to go back in there and go into the hospital room and just
take [A.R.] So he kept on and kept on so I finally just went to the room
where the O.C.S. ladies were with the kids. And I went up to [A.R.] and
picked her up and uh, they told me, you know I couldn’t do that so–he
was throwing a fit at the hospital. The cops had to make him leave and
everything.

In light of the direct and circumstantial evidence offered by the State, the

hypothesis Defendant offered, that A.R. injured herself when she jumped or fell off

the bed, was not sufficiently strong enough to cause a rational factfinder to entertain

a reasonable doubt about Defendant’s guilt. Accordingly, these claims are without

merit.

Count Number 4:

Count number four of the amended bill of information alleged that on August

6, 2001, Defendant caused the victim unjustifiable pain and suffering by refusing to

allow her to receive necessary medical treatment. In brief, Defendant asserts that he

was not aware of the nature and extent of the injuries. Defendant supports this

assertion by pointing out that none of the other adults who came in contact with A.R.

on August 6, 2001, were aware of the nature and extent of the injuries. The Defendant

argues:

[K.R.], Terry Matthews, Deputy Polk, all testified that they could
have taken [A.R.] to get medical treatment on August 6, 2001, and that
they did not do so because they did not believe [A.R.] needed emergency
medical treatment.

Therefore, Defendant concludes it was reasonable that “this inexperienced stepfather,

who had only been married to the mother of these children for three months at the time

of A.R.’s injury, did not perceive the need to get immediate medical treatment for the

child.”

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In order to convict for cruelty to a juvenile by means of denying the child access

to medical care, the State had to prove that the Defendant had the general criminal

intent to cause A.R. unjustifiable pain or suffering, or alternatively, to show that the

Defendant’s conduct amounted to a gross deviation below the standard of care such

that it constituted criminally negligent mistreatment of the child. State v. Cortez, 96-

859 (La.App. 3 Cir. 12/18/96), 687 So.2d 515.

K.R. testified that although the Defendant brought her A.R. and told her A.R.

had hurt herself when she jumped off the bed, he refused to let her near the child. K.R.

testified that “I could tell the way that her arm looked something in her arm was broke

or something because [her] elbow was just flopping over.” K.R. told him she wanted

to examine A.R., that she thought A.R.’s “elbow or something was dislocated.”

Instead, the Defendant insisted on bathing A.R. K.R. stated that “I could see where

he wasn’t gonna let me get near her.” So she called her mother for help.

Terry Matthews, K.R.’s mother, testified that in late morning of August 6, 2001,

she received a call from her daughter. As a result of the call, Ms. Matthews

immediately went to the Defendant’s house. After she arrived, a fight ensued between

the Defendant and K.R. While they were arguing, Ms. Matthews found A.R. in bed.

She testified that she had seen A.R. the evening before, and that at that time she was

fine. She stated that she took A.R. in her arms and immediately noticed something

was wrong with her shoulder. Ms. Matthews testified she sat on the couch for a few

minutes with A.R. on her lap as the arguing continued, then she decided to take the

children back to her house. As she was getting into the car with the girls, Defendant

came out and demanded that she leave and not take the girls. She stated she argued

with the Defendant, but left without the girls after K.R. told her “‘Momma, I’m gonna

go ahead and stay and leave the kids here with me.’” Ms. Matthews testified that

14

although she knew there was a medical problem, she did not think it was an

emergency. She stated that if she had believed the medical problem was serious, she

would have called 911 as soon as she got home. However, a short time later, after she

spoke with Deputy Polk, Matthews called the Department of Social Services.

After Ms. Matthews left Defendant’s house, the Defendant called the police and

reported a domestic disturbance. Doryce Polk, a deputy with Natchitoches Parish

Sheriff’s Office, responded to the Defendant’s phone call. Deputy Polk testified that

when she arrived A.R. was sitting on the couch with her mother. She further testified

that as soon as she saw A.R. she knew something was wrong with the child. When she

asked if everything was okay, everyone responded in the affirmative, except for A.R.,

who started to cry and shook her head “no.” She stated K.R. told her that A.R. had

been crying all day. Deputy Polk’s immediate response was to ask the Defendant what

had he done to A.R. Deputy Polk admitted that had she thought the child was in

immediate danger she would have taken some action at the time. However, she

explained she was not called to the residence because of a problem with the children.

She testified that before she left, she asked again if everything was all right and this

time A.R. nodded her head “yes.” Defendant told the deputy he called because he did

not want Ms. Mathews to come to his house anymore. Deputy Polk went to Ms.

Matthews’ house. After talking to Ms. Matthews, she advised her to call social

services.

Defendant argues that after two police officers and two social workers arrived

at his house at approximately four o’clock in the afternoon, he did not refuse to give

A.R. to the social worker. Deputy Polk testified that Defendant answered “no” when

asked to give the child to the social worker, Joyce Reliford, but instead handed her to

her mother, who did hand A.R. over to the social workers. Ms. Reliford testified that

15

they were met with “great opposition, of course, but we were able to with law

enforcement assistance, get the two children out of the house.” She stated that the

Defendant “put up quite a verbal fight about us being there.”

Defendant relies on Cortez, 687 So.2d 515, to bolster his contention that there

was insufficient evidence to support a finding that he intentionally or negligently

withheld medical treatment. In Cortez, the defendant was found guilty of cruelty to

a juvenile for denying him access to medical treatment when, during a visit to a

pediatrician because of an ear infection, it was discovered the six-month-old boy had

a severely injured leg. This court overturned Cortez’s conviction.

In Cortez, this court found that evidence established the injury was such that it

did not require immediate treatment. Testimony established that the type of injury, or

its severity, may not have been noticed or diagnosed by the average care giver. The

treating physician testified that he would not have expected a parent to be able to

recognize or diagnose that type of injury. Id. This court stated:

In addition, Ms. Cortez could only be expected to seek treatment
appropriate to a condition when she is, or should be aware of the nature
or extent of the problem. As she had suspected, and for which she sought
treatment, Hayden was suffering from an ear infection. Therefore, it is
plausible, reasonable, and possible that this inexperienced mother
perceived Hayden’s irritability or discomfort to be related to that
condition.

Id. at 520.

In Cortez, the evidence showed that twenty-four percent “of these injuries occur

in children who sustain mild to moderate trauma, or in situations when the mechanism

of the injury is unclear. Furthermore, the textbook stated that while 50% of these

injuries stem from motor vehicle or pedestrian accidents, other causes include falls and

athletic injuries.” Id. at 521. This court found that in light of the fact the doctor

testified he had never seen this type of injury before, the speculation of the injury’s

16

genesis was not sufficient to exclude every reasonable hypothesis of Cortez’s

innocence.

Finally, in Cortez, this court stated:

First, the state’s case is replete with material inconsistencies. There are
inconsistencies presented by the doctors themselves regarding the
visibility of the injury or a parent’s ability to recognize this type of
injury. Second, there are no other signs indicating that this child may
have been abused, i.e. bruises, lacerations, bumps, or other trauma. There
was no testimony presented regarding the mother’s ill treatment of her
child, or her failure to provide adequate care. Furthermore, the evidence
shows that many people handled this baby throughout the time the injury
may have occurred. In fact, the evidence showed that the person who
spent the least amount of time with him during the period of injury was
Ms. Cortez. In addition, the evidence presented clearly shows that the
baby was not deprived of any medical treatment by the possible delay in
seeking treatment, of anywhere between one to ten days, as he did not
receive or require any emergency treatment, other than mild pain
medication, for the seven days he remained at Moosa and before being
transferred. Alarmingly, this court can find no other convictions brought
under this statute, offering such minimal acts and potentially justifiable
behavior on the part of a defendant, such as in the case sub judice.
(Emphasis in original).

Id. at 522.

In contrast, in the instant case, K.R., Ms. Matthews, and Deputy Polk all

testified they could immediately see that A.R. was in distress. Joyce Reliford and

Sandra Doolittle, social workers with the Department of Social Services, Office of

Community Services, both testified that they could see there was a problem with A.R.

as soon as they looked at her. Ms. Reliford testified that it was obvious from just

looking at A.R. that she was in pain. Defendant’s response to A.R.’s distress had been

to keep her away from her mother and to bathe her.

The two social workers took A.R. to emergency services where she received

a temporary cast on her leg and a sling for her arm. An appointment was arranged for

the next morning with an orthopedic surgeon, Doctor Geoffrey Collins. Doctor

Collins testified that A.R. had pain with any motion or palpation of her right shoulder

17

and “she did not allow full motion of that left knee secondary to pain below the knee

level.” Following the examination, A.R. was taken to the hospital where Doctor

Collins performed emergency surgery on her shoulder “to try and–and prevent any

significant damage to the growth cells of that growth plate.” Doctor Ann Springer

testified that A.R.’s injuries were potentially life threatening: “These kinds of injuries

require a significant force to inflict comparable to an automobile accident. . . .two

serious fractures; uh, fractures like this can uh, lead to fatal infection.”

While Defendant argues that none of the other adults who came into contact

with A.R. on August 6, 2002, thought that A.R. required emergency treatment,

whether or not the child’s injuries could be classified as requiring emergency treatment

is not an element of the offense; rather what had to be proven is that Defendant

intentionally or negligently and without justification prolonged A.R.’s pain and

suffering by refusing medical attention. The record clearly establishes that there was

sufficient evidence before the jury supporting its finding that the Defendant

unjustifiably prolonged A.R.’s suffering by first not allowing her mother to care for

her, by not allowing Ms. Matthews to take A.R. home, by telling Officer Polk that

A.R. was okay, and by initially refusing to allow the social workers to take A.R.

There was testimony that A.R. was crying most of the day and that she would not

move her arm. According to the testimony the injury occurred at approximately nine-

thirty in the morning and A.R. was not taken to the emergency room of the hospital

until after four o’clock in the afternoon.

Unlike Cortez, the facts in the instant case support a finding of general criminal

intent; they also support a finding of criminal negligence. Defendant was, as in all the

other injuries, the first to know A.R. was injured. It was immediately apparent to

every other adult that something was wrong with A.R. Doctor Collins testified as to

18

the pain A.R. suffered because of the fracture to her arm and leg bones, and that A.R.

refused to move her arm or her leg because of the pain. Accordingly, we find this

alleged error is without merit.

In sum, we find the circumstantial evidence, together with the direct evidence

of the injuries and the time periods over which the injuries occurred, evaluated in the

light most favorable to the prosecution, established Defendant’s guilt beyond a

reasonable doubt. Defendant’s hypothesis that the child injured herself in each case

was not sufficiently strong such that a reasonable juror could not have found proof of

guilt beyond a reasonable doubt. Moreover, the evidence was sufficient for the jury

to find that the Defendant intentionally or negligently withheld necessary medical

attention, thus unjustifiably prolonging A.R.’s pain and suffering. These assignments

are without merit.

19

ASSIGNMENT OF ERROR NUMBER 3:

For his third assignment of error, Defendant asserts that the statements made by

the victim to Doctor Ann Springer regarding who caused her injuries are inadmissible

under the circumstances of this case. Defendant argues that the statements are hearsay

statements and as such are expressly prohibited by La.Code Evid. art. 705(B) which

provides that “[i]n a criminal case, every expert witness must state the facts upon

which his opinion is based, provided, however, that with respect to evidence which

would otherwise be inadmissible such basis shall only be elicited on cross-

examination.”

Defendant asserts that without the inculpatory statements made by A.R. to

Doctor Springer, there was no direct evidence as to who caused the injuries alleged in

counts two and three. The Defendant asserts:

A defendant may only be convicted solely upon circumstantial
evidence where that evidence excludes every reasonable hypothesis of
innocence. La.R.S. 15:438. In incorporating the circumstantial evidence
rule with the Jackson standard of sufficiency, a court must determine
whether, viewing the admissible 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. State v. Quatrevingt, 93-1644 (La. 2/28/96), 670 So.2d
197; State v. Mitchell, 96-207 (La.App. 3 Cir. 10/9/96); 684 So.2d 6;
State v. Morris, 414 So.2d 320 (La. 1982). Absent the inadmissible
hearsay statements of [A.R.], a rational trier of fact could not reasonably
conclude that every reasonable hypothesis of innocence had been
excluded. (Emphasis in original).

Louisiana Code of Evidence Article 801(C) defines hearsay as “a statement,

other than one made by the declarant while testifying at the present trial or hearing,

offered in evidence to prove the truth of the matter asserted.” The Defendant asserts

that the trial court erroneously admitted the hearsay statements on the basis of an

exception provided by La. Code Evid. art. 803, which, in pertinent part, provides:

20

The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:

....

(4) Statements made for purposes of medical treatment and
medical diagnosis in connection with treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception
or general character of the cause or external source thereof insofar as
reasonably pertinent to treatment or diagnosis in connection with
treatment.

The Defendant argues that “[t]he hearsay statement[s] of [A.R.] to Dr. Ann Springer

do not meet the requirements of this exception,” in that Doctor Springer was not

A.R.’s treating physician, but instead was retained by the Office of Community

Service to do a forensic evaluation as to whether A.R. was a victim of child abuse.

Doctor Springer testified that during examination of the victim, conducted seven

days after the victim’s surgery on her shoulder, she asked A.R. what happened and

A.R. told her that her right arm was lifted and pulled backward and her leg had been

twisted, twice, by her stepfather. The trial court admitted the statements over the

objection of Defendant on the ground that the statements were made for the purpose

of medical treatment and medical diagnosis in connection with treatment.

Defendant relies heavily on State v. Lawrence, 98-348 (La.App. 4 Cir. 12/1/99),

752 So.2d 934, writ denied, 00-3 (La. 6/16/00), 764 So.2d 962, and State v. Coleman,

95-1890 (La.App. 4 Cir. 5/1/96), 673 So.2d 1283, writ denied, 97-42 (La. 10/31/97),

703 So.2d 11, to support his argument that Doctor Springer’s recitation of A.R.’s

statements was inadmissible.

The same expert witness, Doctor Katheryne A. Coffman, testified in both

Lawrence and Coleman and the facts surrounding the statements made by the victims

to Doctor Coffman were essentially identical in both cases. In both cases, the fourth

circuit found the statements made by the victims to Dr. Coffman were inadmissible as

21

hearsay and that La.Code Evid. art. 803(4) did not provide an exception to the hearsay

rule.

In Lawrence, the defendant was convicted of forcible rape of his twelve-year-

old stepdaughter. Doctor Coffman, an expert in pediatrics and child sexual abuse,

testified regarding statements made by the victim to her, which did not name the

defendant as her assailant, but described the sexual acts to which she was subjected.

The victim in Lawrence, was initially seen by her family doctor, Doctor Janet

Barnes, the day following the victim’s revelation that she had been raped. Doctor

Barnes examined her and treated her. Two weeks later, she was seen by Doctor

Coffman by arrangement of the investigating detective (in Coleman, it was not until

eighteen months later Doctor Coffman saw the victim). At trial, both doctors testified.

Each told the jury what the victim revealed to them regarding the rape. On appeal,

Lawrence argued that each doctor’s testimony was erroneously admitted which

contributed to the guilty verdict rendered in the case. He argued that “because neither

doctor testified that any medical treatment was prescribed as a result of their

interviews and exams, the hearsay exception of Article 803(4), under which they were

offered, did not apply.” Id. at 938.

In Lawrence, the fourth circuit found that the statements by Dr. Coffman were

hearsay and not subject to the exception provided by La.Code Evid. art. 803(4). In

contrast, the fourth circuit found that the statements submitted by the family doctor,

Doctor Barnes, were admissible. She saw the victim the following day, examined the

victim for injury and for sexually transmitted disease; additionally, the doctor referred

the victim to a therapist for psychological counseling. The fourth circuit concluded

that “[t]herefore, D.M’s statements made to Dr. Barnes regarding the assaults by Mr.

22

Lawrence were made for purposes of medical treatment and were thus properly

admitted under the hearsay exception of Article 803(4).” Id. at 941.

In the instant case, out of the presence of the jury, Doctor Springer, a

pediatrician and an expert on child abuse medicine, told the trial court that she was

contacted by the Natchitoches Parish Office of Community Services and asked to

provide a medical evaluation and render an expert opinion. She testified that her

examination consisted of the “usual history, physical exam, assessment of other

evidence such as laboratory values or x-rays.” She stated that she had found injuries

that had not been previously found by Doctor Collins, but that the injuries did not

require treatment. However, had the injuries needed treatment, she would have

provided the treatment. She stated she asked A.R. what happened, for the purpose of

further examination and treatment. She said it was important to know whether the

injuries she saw resulted “from some identifiable external cause or is it something

intrinsic to the child’s medical history and background.” The doctor further stated that

as a pediatrician, it is her “job to make an examination and direct the course of further

treatment as needed for the child’s health and well-being. Anything else I do is

secondary of important to that.” She stated that child abuse is a medical condition

which required treatment and had A.R. required additional treatment, she would have

been available to provide the treatment.

On cross-examination, Doctor Springer testified that the exam lasted thirty

minutes and that she never saw A.R. after the initial examination. She also stated that

at the time of the examination she had not received any of the previous X-rays, or lab

reports or doctor reports regarding A.R.’s condition and treatments. She stated that

except for the surgeon’s report, she had not received anything else up to the time of

trial. Finally, on cross-examination, Doctor Springer agreed that while the mechanism

23

of injury was important to her diagnosis and treatment, who pulled the child’s arm or

twisted her leg was not relevant to treatment.

In brief, Defendant argues that regardless of how Doctor Springer characterized

herself, she was not the child’s treating physician. Sandra Doolittle, a social worker

with the Office of Community Services, testified that the reason they sent A.R. to see

Doctor Springer was to obtain a forensic evaluation as to whether A.R. was a victim

of child abuse. While Doctor Springer claimed that as part of her evaluation of

possibly abused children she would compile the medical information to make sure

nothing was missing, she never made any effort “whatsoever to obtain the child’s

medical history and background in order to evaluate it as a cause of her injuries.”

Defendant asserts that “[A.R.] [sic] alleged statements to Dr. Springer on August 15,

2001, were not made for the purpose of diagnosis and treatment, they did not fall

within a firmly rooted exception to the hearsay rule, and they lacked the reliability that

is the linchpin of the hearsay exception.” A.R. did not testify at trial.

In State v. Ste. Marie, 97-168, pp. 8-9 (La.App. 3 Cir. 4/18/01), 801 So.2d 424,

431, this court noted the 1999 Author’s Notes regarding Article 803(4) exception to

the hearsay rule:

Without considering whether a statement by a child molestation victim
to a therapist-certified social worker might qualify as a statement for
“purposes of medical treatment and medical diagnosis in connection with
treatment,” the court in State v. Tucker, 619 So.2d 1072 (La.App. 1 Cir.
1993), held the admission of such testimony was inadmissible hearsay
and was reversible error. The authors agree with the result reached. The
statements for purposes of “medical treatment and medical diagnosis in
connection with treatment” should be given a narrow rather than
expansive interpretation, and a statement to a therapist social worker not
working under the direction of a physician should not be considered as
fitting within this exception.”

In the present case, the statements made by A.R. to Doctor Springer do not

qualify as statements necessary for the purpose of medical treatment and diagnosis in

24

connection with any treatment. Doctor Springer admitted that she was retained by the

Office of Community Services to evaluate A.R. and to determine whether the injuries

were a result of child abuse. Doctor Springer admitted that she did not treat the

injuries A.R. presented. She also admitted that who caused the injuries was not

pertinent to any treatment for the injuries.

Accordingly, the statements made by A.R. to Dr. Springer regarding who caused

her injuries were inadmissible pursuant to La.Code Evid. arts. 705(B) and 803(4), and

the trial court should not have permitted the statements to be repeated by Doctor

Springer at trial.

However, as in Lawrence and Coleman, the statements were admitted into

evidence and relayed to the jury. In Lawrence and Coleman, the admission of the

hearsay statements were determined to be harmless error. This court stated in State

v. Ste. Marie, 801 So.2d 424, 432, that “[t]he admission of inadmissible hearsay is

subject to the harmless error analysis, i.e., whether the verdict was surely

unattributable to the error.”

Thus we must determine if the erroneous admission of the statements was

harmless when viewed against the entire record and was there was sufficient

independent and uncontradicted evidence to sustain the conviction.

In determining that the erroneous admission of testimony does not
require reversal of a conviction, the reviewing court must be convinced
that the error was harmless beyond a reasonable doubt. State v. Hawkins,
96-0766, p. 5(La. 1/14/97), 688 So.2d 473, 478.

Factors to be considered . . . include “the importance of the
witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of
the prosecution’s case.” State v. Wille, 559 So.2d 1321,
1332 (La.1990)

25

State v. Lawrence, 752 So.2d at 943. See also State v. Barnes, 01-113 (La.App. 4 Cir.

11/7/01), 800 So.2d 1124, writ denied, 02-159 (La. 1/31/03), 836 So.2d 56.

As noted above, the fourth circuit in both Lawrence and Coleman, while finding

the statements made by the victims were inadmissible, went on to find that the

admission of each statement was harmless error. As noted by the Coleman court, “The

use of hearsay history of the case as told to the physician by the patient may be

admissible if received not to show the truth of the facts stated but only the basis for his

opinion, but all hearsay history not necessary to this diagnosis is inadmissible.”

Coleman, 673 So.2d at 1286, citing State v. Watley, 301 So.2d 332, 334 (La.1974).

Doctor Springer admitted the information of who caused the injuries was not

necessary for her to form the basis of her opinion that the injuries were of a non-

accidental origin. However, she discussed in depth the most likely mechanism that

caused the injuries was an intentional act. Doctor Collins, who was the physician who

made the original diagnosis and performed the surgery on A.R.’s shoulder and applied

the cast to A.R.’s leg, supported Doctor Springer’s contention. There were no

inconsistencies in the two doctors’ testimonies regarding the types of injuries, the

severity of the injuries, and the likely cause of the injuries. The defense had the

opportunity to cross-examine Doctor Springer and Doctor Collins at length.

Moreover, the State presented evidence that the injuries all occurred during the two

week periods A.R. was in custody of her mother and the Defendant. In the three, two

week periods A.R. lived with the Defendant, each time she received various injuries,

which were always discovered by the Defendant. Finally, K.R. testified at trial that

after A.R. was taken from the Defendant’s home, she told K.R. that the Defendant

caused her injuries, thus corroborating the inadmissible statements.

26

Considering the foregoing, we find the erroneously admitted hearsay statements

A.R. made to Doctor Springer as to who caused her injuries was harmless error. We

find that even without the hearsay statements, there was sufficient independent, direct

and circumstantial evidence to find the Defendant guilty of the crimes beyond a

reasonable doubt. Therefore, we conclude the guilty verdicts are attributable to

evidence other than the hearsay testimony of Doctor Springer. Accordingly, this

assignment does not support reversal of the Defendant’s conviction.

ASSIGNMENT OF ERROR NUMBER 6:

Defendant argues that his sentences, totaling eighteen years at hard labor, are

excessive because the trial court imposed the sentences to be served consecutively.

Defendant does not challenge any of the sentences separately. Defendant argues that

the sentences imposed on count two, three and four should have been imposed

concurrently because the offenses constituted part of a common scheme or plan, and

because he was a first-time felony offender.

Defendant was found guilty of four counts of cruelty to juveniles, violations of

La.R.S. 14:93, which provides for a term of imprisonment of not more than ten years,

with or without hard labor. Defendant was sentenced to two years at hard labor on

each of counts one and four and seven years at hard labor on each of counts two and

three, all sentences to be served consecutively, thus totaling eighteen years at hard

labor.

Louisiana Code of Criminal Procedure Article 883 (emphasis ours) provides,

in pertinent part, that “[i]f the defendant is convicted of two or more offenses based

on the same act or transaction, or constituting parts of a common scheme or plan, the

terms of imprisonment shall be served concurrently unless the court expressly directs

that some or all be served consecutively.”

27

“[I]n cases involving offenders without prior felony record, concurrent rather

than consecutive sentences should be imposed, particularly where the convictions arise

out of the same course of conduct. State v. Jacobs, 383 So.2d 342 (La.1980); State

v. Cox, 369 So.2d 118 (La.1979).” State v. Brown, 627 So.2d 192, 199-200 (La.App.

3 Cir. 1993), writ denied, 93-3101 (La. 3/18/94), 634 So.2d 850.

Imposition of consecutive sentences requires particular justification. State v.

Dunbar, 94-1492 (La.App. 3 Cir. 5/31/95), 657 So.2d 429. “[T]he trial court must

articulate particular justification for such a sentence beyond a mere articulation of the

standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1.” State v. Dempsey,

02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040.

Among the factors to be considered are the defendant's criminal history,
State v. Ortego, [382 So.2d 921, cert. denied, 449 U.S. 848, 101 S.Ct.
135, (1980)]; State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the
gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d
Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State
v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State
v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433
(La.1983); whether the defendant constitutes an unusual risk of danger to the public,
State v. Jett, 419 So.2d 844 (La.1982); the defendant's apparent disregard for the
property of others, State v. Parker, 503 So.2d 643 (La.App. 4th Cir.1987); the
potential for the defendant's rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983);
State v. Lighten, 516 So.2d 1266(La.App. 2d Cir.1987); and whether the defendant has
received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra.

State v. Coleman, 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-48, writ

denied, 00-1572 (La. 3/23/01), 787 So.2d 1010.

At the sentencing hearing, the trial court stated for the record:

The presentence report reveals that Mr. Merritt will turn thirty-six
(36) on May 22 of this year. He has been married three (3) times, with
two (2) children from the first marriage, one (1) from the second, and
none from the third.

....

Mr. Merritt’s criminal record indicates a hunting violation in 1995, a
simple battery conviction in 2000, a plea of guilty to simple battery on

28

April 11, 2001, a simple battery charge dated July 28, 2000...which is
pending, and an August 15, 2002, forgery and theft charge, which is
pending...all in Natchitoches Parish. He has a June 30, 2002, second
degree battery charge pending in Sabine Parish. The Court does not
consider the hunting violation, or the pending charges in sentencing
today. However, it is clear that the defendant has a criminal history of
crimes against the person that extends beyond his stepdaughter. The
May 2000 simple battery conviction was before this Judge. Mr. Merritt
was found guilty of beating his natural son, Zachary, with a coat hanger.
The April 2001 simple battery plea by him involved him battering his
girlfriend. By a judgment of the 11th Judicial District Court, signed
November 19, 2002, Mr. Merritt’s parental rights to the two (2) children
of his first marriage were terminated, apparently for failure to pay child
support for a period in excess of four (4) years, and for abuse and neglect
of the children. The Court has reviewed the sentencing guidelines set
forth in Code of Criminal Procedure Article 894.1, and has taken them
in to consideration in determining the appropriate sentence here. The
Court has reviewed Article 883 of the Code of Criminal Procedure
concerning sentencing when a defendant is convicted of two (2) or more
offenses. Where they are based on the same scheme or act, or constitute
part of a common scheme or plan, the terms of imprisonment shall be
concurrent, unless the Court expressly states otherwise. The Court has
considered the guidance provided by the Louisiana Supreme Court in
State v. Thomas, for the benefit of counsel, 719 So.2d 49, where it said,
“although Louisiana law favors concurrent sentences for crimes
committed as part of a single transaction, a trial judge retains discretion
to impose consecutive penalties on the basis of other factors, including
the offenders past criminality, violence in the charged crimes, or the risk
he or she poses to the general safety of the community.”

The trial court went on to discuss certain mitigating factors presented to the

court, and the Article 894.1 sentencing guidelines. As mitigating factors, the trial

court noted that Defendant does not have a prior felony record, that he lost his father,

that his mother is ill, that he has health problems, and that he has a good employment

record. The trial court then stated:

The Court placed particular weight on the following sentencing
guidelines found in Paragraph B of Article 894.1. [§] 2) He knew that the
victim was particularly vulnerable or incapable of resistance due to her
age. Number 12, he has been involved in other similar offenses to his
own son, and to his girlfriend. [§] 22) His conduct caused serious harm
to his stepdaughter. [§] 25) There were no grounds to excuse or justify
his conduct. [§] 29) The Court is of the opinion that his conduct is likely
to reoccur. [§] 30) I do not believe he will respond affirmatively to

29

probation because he has twice before been placed on probation for
violent offenses, including being sent to anger management to no avail.

....

Significantly, he does not express remorse for committing the crimes he
was found guilty of [sic]. He only needed to protect her from himself.
Mr. Merritt, I am imposing consecutive sentences because, first of all,
some of your offenses are not part of a common scheme of plan, and are
not part of the same act or transaction. Furthermore, because of your
prior history of violence to persons close to you, even though represented
by misdemeanor convictions, the terrible injuries to a two (2) year old
child here, and because the Court feels that you pose a risk to the general
safety of the community insofar as those you seem to enter in to
relationships with are concerned, consecutive and not concurrent
sentences are warranted.

In the case cited above by the trial court, State v. Thomas, 98-1144 (La.

10/9/98), 719 So.2d 49, the defendant, a first-time felony offender, was sentenced to

consecutive terms of imprisonment on three convictions, one of which was armed

robbery. The remaining two convictions were offenses which occurred during and

after the armed robbery. The supreme court affirmed the trial court’s imposition of

consecutive sentences, despite the fact the offenses were committed as a part of a

common scheme or plan. The supreme court noted:

Although Louisiana law favors concurrent sentences for crimes
committed as part of a single transaction (citation omitted), a trial judge
retains discretion to impose consecutive penalties on the basis of other
factors, including the offender’s past criminality, violence in the charged
crimes, or the risk he or she poses to the general safety of the community.

Id. at 49. The supreme court went on to state that “[e]ven granting the consecutive

nature of the penalties imposed on all three counts, the defendant’s total sentence

remains within the 35 to 50 year range this Court has found acceptable for first

offenders convicted of armed robbery.” Id. at 50.

In State v. Hilton, 99-1239 (La.App. 1 Cir. 3/31/00), 764 So.2d 1027, writ

denied, 00-958 (La. 4/9/01), 786 So.2d 113, the defendant received maximum

30

sentences for four convictions, which included indecent behavior with juveniles,

molestation of a juvenile, and cruelty to juveniles. Two of the sentences were ordered

to be served concurrently, but consecutively with the remaining two concurrent

sentences for a total term of imprisonment of seventeen and one half years. Hilton

alleged the sentences were excessive in light of the fact she was an abused person

herself and that she was a first time felony offender. The first circuit noted:

A sentence is excessive when it is grossly out of proportion to the
severity of the offense or nothing more than the needless and purposeless
imposition of pain and suffering. To determine whether a penalty is
grossly disproportionate to the crime, the court considers the punishment
and the crime in light of the harm to society and whether the penalty is
so disproportionate as to shock our sense of justice. A trial court is given
wide discretion in imposition of sentences within statutory limits, and the
sentence imposed by it should not be set aside as excessive in the absence
of manifest abuse of discretion.

Id. at 1037. See also State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461.

In Hilton, the trial court noted for the record the severity of the injuries she

inflicted on the children as “most atrocious acts I’ve ever seen.” The trial court noted

that the children were only four or five years of age. The first circuit noted: “It is

obvious that the judge found that defendant was the worst kind of offender and that

the offenses were the most serious.” Hilton, 764 So.2d at 1038. The first circuit

affirmed the trial court’s imposition of the maximum sentences and the consecutive

application of the sentences.

While we acknowledge defendant’s status as a first felony
offender, we believe that the reasons given by the trial court support the
sentences. Considering the circumstances of the instant offenses,
particularly the reprehensible nature of the crimes and the permanent
effect that the offenses will have on the children, we believe that the
defendant is one of the most egregious and blameworthy offenders.

Id.

31

In the present case, the offenses took place over a period of three months.

According to the amended bill of information, two of the offenses, Counts three and

four, took place on the same day, August 6, 2001. However, we find that those

offenses were neither based on the same act or transaction, nor constituted part of a

common scheme or plan. Rather, count four was committed by the Defendant in an

attempt to cover up the Defendant’s earlier abuse of the victim. We find it was not

part of a grand scheme, but a last minute attempt to avoid detection.

Accordingly, we find that the reasons given by the trial court support its

imposition of consecutive sentences, particularly in light of the severity of the injuries

suffered by the victim, and considering Defendant’s misdemeanor criminal history of

violence against other persons, including children. Furthermore, much discretion

should be afforded the trial court’s determination that consecutive sentences were

appropriate in this case. See Walker, 799 So.2d at 461. This assignment lacks merit.

DISPOSITION:

Accordingly, Defendant’s convictions and sentences are affirmed.

AFFIRMED.

32

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-946

STATE OF LOUISIANA

VERSUS

DILLON JAMES MERRITT

THIBODEAUX, C.J., dissenting in part.

The majority errs in affirming the Defendant’s convictions on Counts 2

and 4.

The Defendant was convicted of causing A.R. unjustifiable pain and

suffering by refusing to allow A.R. to receive necessary treatment. The tenuous

evidence in this record simply does nor support a conviction. K.R., the victim’s

mother, did not think the child needed emergency treatment. While the majority is

correct that emergency treatment is not an element of the offense, what is significant

is that the mother felt A.R.’s condition did not warrant medical attention. Deputy Polk

thought that A.R. was uninjured; the deputy did not observe any visible signs of

injuries or trauma. Ms. Matthews called the Department of Social Services only after

Deputy Polk advised her to stay away from the Merritt residence. One is left to

wonder why Ms. Matthews did not call the Department of Social Services before if

she felt that A.R. was in distress and in need of medical care. The likely inference, I

think, is clear. She was unhappy with being told to stay away from the Merritt

residence. She, therefore, initiated the call because of her discontent with being

excluded, not because of a genuine concern for the child’s welfare. The reasonable

thing to do, if she felt A.R. was in distress and pain, would have been to call for

assistance immediately upon leaving the Merritt residence.

While subsequent actions did indeed disclose the need for medical

attention, we cannot view this discovery in a vacuum. While hindsight is helpful, we

cannot convict on what was later discovered under these circumstances. As State v.

Cortez, 96-859 (La.App. 3 Cir. 12/18/96), 687 So.2d 515, 522, observed, “a bad

judgment call falls woefully short of equaling intentional mistreatment or criminal

negligence and, without more, does not give rise to a charge under this statute [La.R.S.

14:93]” because

[i]n order to prove criminally negligent mistreatment, the
state must show that [the defendant’s] conduct was so far
below that expected of a reasonably careful person that it
must be considered a gross deviation. The state attempted
to prove this through circumstantial evidence, which
requires the state to exclude all reasonable hypotheses of
innocence on the part of [the defendant].

Id. at 520.

The circumstantial evidence in this case does not rise to the level of

showing a “gross deviation” from a reasonably careful person’s conduct. The

majority was wrong in affirming this conviction.

With respect to Count 2, without the indisputably inadmissible hearsay

testimony, was there, as the majority observes, “sufficient, independent and

uncontradicted evidence to sustain a conviction” beyond a reasonable doubt? Was Dr.

Springer’s inadmissible testimony harmless such that a conviction on Count 2 which

charged that the Defendant inflicted A.R. unjustifiable pain and suffering by causing

a spiral fracture of the leg supported by sufficient independent evidence? No one saw

the Defendant injure A.R.’s leg at any time. A.R.’s sister was the only person in the

room with her on June 11, 2001, the date on which they were jumping around in bed

when A.R.’s sister claims she was hurt. Dr. Collins testified that A.R. was a product

2

of neglect and abuse which resulted in the leg injury. Dr. Collins did not, indeed he

could not, say from whom the injury occurred. Nor did the State rule out the

possibility of an accidental injury with the evidence presented. Once the testimony

of Dr. Springer is extricated from consideration, we are left with evidence that is

woefully insufficient to uphold a conviction. I cannot say that the guilty verdict on

Count 4 in this trial was surely unattributable to the error. See State v. Johnson, 94-

1379 (La. 11/27/95), 664 So.2d 94; Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct.

2078; La.Code Crim.P. art. 921.

I would reverse the convictions on Counts 2 and 4 and remand for the

imposition of concurrent sentences on Counts 1 and 3. See State v. Ste. Marie, 97-168

(La.App. 3 Cir. 4/18/01), 801 So.2d 424, writ denied, 02-1117 (La. 12/19/02), 835

So.2d 1288.

For the foregoing reasons, I respectfully dissent.

3