State of Louisiana v. Dominique Jackson

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-393

STATE OF LOUISIANA

VERSUS

DOMINIQUE JACKSON

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, DOCKET NO. 12-K-1544-A
HONORABLE JAMES P. DOHERTY, JR., DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of James T. Genovese, Shannon G. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Edward J. Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, Louisiana 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Dominique Jackson

Earl B. Taylor
District Attorney—Twenty-Seventh Judicial District
Jennifer M. Ardoin
Assistant District Attorney
Post Office Drawer 1968
Opelousas, Louisiana 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Dominique Jackson, was found guilty by

jury verdict of the second degree murder of Derrion Sam, a juvenile under the age

of twelve. He has appealed his conviction, alleging insufficiency of the evidence.

For the following reasons, we affirm Defendant’s conviction.

FACTS AND PROCEDURAL HISTORY

Two-year-old Derrion Sam died as a result of a transecting duodenal

perforation after being in the care of Defendant. Defendant was indicted for the

first degree murder of Derrion Sam, a juvenile under the age of twelve. The jury

returned a responsive verdict of second degree murder, a violation of La.R.S.

14:30.1. Defendant was sentenced to life imprisonment at hard labor without the

benefit of parole, probation, or suspension of sentence.

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 no

errors patent.

ASSIGNMENT OF ERROR

Defendant argues that the State failed to exclude every reasonable

hypothesis of innocence and that the circumstantial evidence was insufficient to

sustain a conviction for second degree murder.

Defendant argues in pertinent part (record references omitted):

As acknowledged by the prosecution, there existed no witnesses
to the event that caused the death of [Derrion Sam] on or about
December 19, 2011. The uncontroverted medical testimony
established that the child arrived at the hospital with no pulse and not
breathing. Dr. Nicholas Fruge was the ER treating physician and
testified that the traumatic event that caused [Derrion Sam]’s death
more likely than not occurred [five] or [six] hours before presentation

at the hospital at 11:04 a.m. on December 19, 2011. He believed that
the child was “absolutely” dead on arrival at the hospital and [that the]
child had been dead for an hour or two before arrival at 11:04 a.m.

Latricia Hunt, mother of [Derrion Sam], testified that she
arrived home from work on December 18, 2011[,] around 10:20
p.m.[,] and [Derrion Sam] was awake. [He] wasn’t able to keep down
fluids or food. [Derrion Sam] slept comfortably through the night.
Dominique Jackson had a job interview on the morning of December
19, 2011[,] and left the house sometime around 9:00 a.m.

Based on the medical testimony, if the trauma occurred on the
afternoon of December 18, 2011, [Derrion Sam] could not possibly
have survived through the night. [He] rested comfortably and was
communicative with Latricia Hunt the morning of December 19,
2011. The defendant had left by 9:00 a.m. or so[,] and Latricia Hunt
was alone with [Derrion Sam] for about [two] hours before [he] was
brought to the hospital at 11:04 a.m.[,] at which time he was lifeless
and without pulse.

No one testified that throughout the night of December 18 th and
into the morning hours of December 19th that any trauma was inflicted
upon [Derrion Sam] by Dominique Jackson. Dominique Jackson and
Latricia Hunt were together with [Derrion Sam] from about 10:00
p.m. on December 18th until 9:00 a.m. on December 19th. Latricia
Hunt is alone with her child [Derrion Sam] from 9:00 until about
11:00 a.m.

No explanation was provided to the jury when Dominique
Jackson exerted the tremendous force necessary to transect [Derrion
Sam]’s duodenum. However[,] as a matter of medical impossibility
according to Dr. Fruge, it could not have occurred on December 18th
when [Derrion Sam] was in the care of Dominique Jackson. Based on
Dr. Fruge’s estimation[,] it certainly could have occurred between
9:00 a.m. and 11:00 a.m. on December 19, 2011[,] when [Derrion
Sam] was in the sole care of Latricia Hunt.

When issues are raised on appeal both as to the sufficiency of
the evidence and as to one or more trial errors, the reviewing court
should first determine the sufficiency of the evidence. The reason for
reviewing the sufficiency first is that the accused may be entitled to an
acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67
L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in
accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed. 2d 560 (1979), in the light most favorable to the prosecution,
could not reasonably conclude that all of the elements of the offense
have been proved beyond a reasonable doubt. State v. Hearold, 603
So. 2d 731 (La. 1992).

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The law of circumstantial evidence 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
(emphasis added).”

The State responded, arguing in pertinent part:

Defendant seems to suggest that the timeline provided by the experts
puts [Derrion Sam] in the control of both Defendant and Ms. Hunt at
the time his injuries occurred. First, the testimony of both experts was
that the timeline was not an exact science because the death was not
instantaneous. Second, Ms. Hunt testified that the injuries causing
death occurred while [Derrion Sam] was in the care of the Defendant
while she was not present. There was no testimony that the mother
ever abused and/or injured [Derrion Sam]. Lastly, even if the jury
were to consider that the mother was present at that the time the
injuries occurred, which the State contends was not the case, the
Defendant would still be a principal to the crime. It is the role of the
factfinder to judge the credibility of witnesses’ testimony. The jury
was present for the presentation of all evidence and testimony and
found the State’s witnesses, including Ms. Hunt, to be credible.

In State v. Small, 46,632, p. 8 (La.App. 2 Cir. 11/16/11), 78 So.3d 825, 830-

31, writ granted on other grounds, 11-2796 (La. 10/16/12), 100 So.3d 797, the

court addressed the elements involved in the offense of second degree murder by

means of cruelty to juveniles, stating:

In order to prove that defendant committed second degree murder, the
state had to show, inter alia, that defendant was committing either
second degree cruelty to juveniles or cruelty to juveniles when the
child died, and a legal causation between the underlying felony,
cruelty to juveniles, and the child’s death.

In this case, Ronetta Sam, the aunt of Derrion Sam, testified that she picked

Derrion up at his mother’s home and brought him to his maternal grandmother’s

home on December 8, 2011. She stated that she saw a bruise on Derrion’s

forehead and scratches on his face. When Derrion’s grandmother asked him what

had happened, Derrion stated that Defendant hit him twice in his head. Ms. Sam

and her mother kept Derrion from December 8 to December 12. During that time,

3

Ms. Sam recalled that Derrion did not eat or drink very much. She testified that

Derrion sucked on an ice cream bar, ate some candy, and drank some juice.

Latricia Hunt, Derrion’s mother, testified that she began dating Defendant in

the summer of 2011 when Derrion was two years old and that they had lived

together off and on. Ms. Hunt stated that during the time she was dating

Defendant, Derrion was hurt on two different occasions. She explained in

pertinent part:

Q. Do you have any -- were you aware of any point in time when
Derrion hurt that area of his body?

A. I was at work[,] and I got off[,] and Derrion was left with
Dominique[,] and Dominique said that they went to his aunt’s house
in Opelousas and [that] a little boy was on a swing. It’s a tire swing
tied to a tree[,] and he said that Derrion walked into the -- in the front
of the swing[,] and the little boy hit him.

Q. Okay, and so did he have any bruising around his rib area?

A. I brought him to the hospital. They said he had, uh, bruised ribs
and he was a little shaken up[,] but he was going to be okay.

There was also an occasion when Derrion had burns on his hand. Ms. Hunt

explained the burns to Derrion’s hand, stating in pertinent part:

A. In Dominique’s care. Uh, I was at work -- well, no, the burn, I
went to the hospital. My brother was having a baby[,] and I started
cooking some food. It was a stew[,] and I left the food for Dominique
to finish it[,] and I got to the hospital[,] and I called after a while
and -- just to see what they were doing[,] and he said that Derrion was
reaching for his bowl and [that] the pot boiled over and burned his
fingers.

Ms. Hunt testified that Defendant did not have a job and that he would

babysit Derrion while she was at work. She stated that she and Defendant were not

getting along in the days leading up to Derrion’s death. She testified that

Defendant drank, that he would fight with her, and that he was sleeping around

4

with other women. She also stated that she had previously thrown him out of her

apartment.

Ms. Hunt stated that Defendant came over the morning of December 18,

2011, and she asked Defendant to keep him that day. Ms. Hunt testified that

Derrion was normal that morning and that she went to work around three or four

p.m.

Evelyn Gladney, Defendant’s mother, testified that Ms. Hunt called

Defendant on December 18, 2011, and asked him to keep Derrion for her that

evening. She stated that she brought Defendant to Ms. Hunt’s home around 4:30

p.m.

The record reveals that the night Defendant was keeping Derrion, he

contacted Ms. Hunt while she was at work. He had her cell phone at the time and

became upset when Ms. Hunt’s old friend (Donte) called on her cell phone. Ms.

Hunt explained in pertinent part:

A. Yeah, Dominique called me[,] and he said, uh, “Your boyfriend
called,” and I was like, uh, “What -- what are you talking about?” He
said, “Well, I’m not tripping. We’re just gonna talk about it when you
get home,” sounding calm like -- like nothing was wrong[,] so what I
did, I went in the restroom at Walmart[,] and I called Donte[,] and I
was like, “Call him and let him know, you know, we have nothing
going on, we just friends,” and he said, “I told him that and he was
enraged.” He wanted to fight him, asking him, “Where you at,” you
know, like mad, wanting to fight him[,] so, uh --

Q. So he told you he wasn’t tripping?

A. Yeah.

Q. Okay, did you ask him about how Derrion was doing?

A. Uh, yeah, I said, “Where’s my baby,” and he was like, “He’s right
there,” like still calm. I said, “’Cause[,] if it’s a problem[,] you can
take my phone and my baby and bring them to my cousin until I get
off.” He was like, “No, it’s not a problem. We just going to talk
about it when you get home,” and we hung up[. . . . ]

5

Ms. Hunt returned home from work around 10:15 to 10:20 p.m. Derrion

was sitting in a rocking chair, and Defendant was in the kitchen cooking. Then,

the following pertinent exchange occurred while the State questioned Ms. Hunt:

Q. Okay, so once you get home[,] Derrion is sitting up or laying
down?

A. He’s like kind of balled up into the rocking chair[,] and I opened
the door[,] and he’s like, uh --

Q. So he’s upright?

A. Ma’am?

Q. Derrion was upright?

A. Yes, ma’am.

Q. Okay, all right.

A. So he said, uh -- the first thing he said was, “Ask Derrion what’s
wrong. Watch, he’s gonna --”

Q. Who says that?

A. Dominique.

Q. He tells you, “Ask Derrion what’s wrong?

A. “Ask Derrion what’s wrong. Watch, he’s going to point to his
stomach,” and I asked him what’s wrong[,] and he kind of, you know,
he didn’t really want to talk[,] so I called my aunt, Derrion’s
grandmother -- godmother[,] and I said, “Well, Dominique told me
that Derrion -- he took him playing on the basketball court that day[,]
and he was normal[,] and he said all of sudden, like, he wasn’t
keeping any foods down.” He said -- I think he said he tried to give
him some wieners or something[,] and he end up throwing it up[,] so
he was like, “He’s not keeping any foods down,” so --

Q. Did he say on the basketball court -- did they play when it was
daylight?

A. I’m guessing, yeah.

Q. Did he say that there were any trouble or problems when they
playing basketball?

6

A. No, ma’am.

....

Q. At any time did he like jump down and run around or do anything
like that?

A. No.

Q. Did he get up at all, I guess out of your hands and did he --

A. Yeah, on his own, yeah.

....

Q. Did you give him some liquids?

A. Yes, ma’am, I gave him a, uh, Capri Sun.

Q. Did he drink it?

A. Yes, ma’am.

Q. Did it stay down?

A. That night he threw up.

....

Q. Did you put him in his own bed that night?

A. Yeah, and he woke up crying in the middle of the night[,] and I got
Dominique up, I said to go and, uh -- go and get him[,] so he went
and, uh -- and got Derrion[,] and he put him in the bed beside us.

Q. Okay, so he was in between you?

A. Yeah.

Q. Okay, did he sleep the rest of the night?

A. Yes, ma’am, he actually -- yeah, he slept comfortable actually.

Q. Did you touch him to see if he was not feverish or anything?

A. Uh, he didn’t seem warm at the time.

Q. Okay, so the next morning -- you said he slept -- so he slept
through the night?

7

A. Yes, ma’am.

Ms. Hunt testified that Defendant left early in the morning for a job

interview; she believed it was around 9:00 a.m. She stated that when Derrion

woke up the next morning, he asked for something to drink. She got him a Capri

Sun, which he drank, but he threw it up. Ms. Hunt testified that Derrion did not

seem right, so she called her cousin to see if she could take them to the hospital.

Ms. Hunt testified that, when she brought Derrion to his room to get dressed, he

did not want to stand on his own. When her cousin arrived, she carried him to the

car. She recalled that he was responsive, but only grunting. Ms. Hunt stated that

as soon as they got to the hospital, Derrion’s eyes rolled back, and he was then

unresponsive.

During direct examination, the following pertinent exchange occurred:

Q. And you had no information whether he was hit in that area or not?

A. No, ma’am.

Q. Have you ever known him to be hit in that area any kind of way at
all?

A. No, ma’am. Just the swing incident and, you know, I didn’t even
see that so I don’t know where he got hit.

On re-direct examination, Ms. Hunt testified that no one else had access to Derrion

other than Defendant. When asked what she thought happened to Derrion to cause

the injury, she responded, “He was left in Dominique’s care. I don’t know what

happened that day. . . . I don’t think I’ll ever know.” When asked if she continued

to live with Defendant after Derrion passed away, Ms. Hunt responded as follows:

A. Yes, ma’am, and he was aware. He kept me close[,] and he was
aware of everything that was going on until my family told me, “You
need to get away from him,” and he started flipping out saying, “You
dumb B, that’s why that child died. This one’s gonna die, too,” while

8

I'm pregnant with his kid and I -- I went to the cops[,] and I showed
them the text messages that he was sending.

Ms. Hunt’s cousin, Tiffany Hunt (Tiffany), testified that on the morning of

December 19, 2011, she took Ms. Hunt and Derrion to the hospital. Tiffany stated

that when she first arrived at Ms. Hunt’s home, Ms. Hunt was holding Derrion in

her arms. Tiffany stated in pertinent part:

A. Then it’s whenever I got his head -- I touched him[,] and I made
him look at me[,] and he looked at me[,] but he couldn’t keep his eyes
focused on me[,] so they were kind of like drifting.

Q. He’s [sic] eyes wouldn’t stay on you?

A. Not all the time, no, ma’am.

Q. Okay, do you know if he was cool to the touch?

A. Not to my knowledge.

Q. Okay, and did he -- so he didn’t -- did he appear alert?

A. He was responding.

Q. Okay, so he’s responding[,] and that’s a word[,] and I’m just going
to have to get into what does that mean to you. So[,] he was saying,
“Uh-huh[”?]

A. Whenever I would say something he would --

Q. He would murmur something back?

A. Yes, ma’am.

Q. But he wasn’t --

A. But he could not say “yes” or “no.” He wasn’t doing that at the
time.

....

Q. Okay, so once you go there -- were y’all talking to him on the way
to the hospital?

A. Yes, ma’am.

9

Q. Okay, and was he still kind of -- kind of making noises back at you
when you’re asking him questions?

A. Yes, ma’am. She was asking -- well, she did ask him. She asked
him if he was hurting[,] and he said, “Uh-uh,” and she was like, “I
love you. You love momma?” And he was like, “uh-huh,” and she
was like, you know, “You’re going to be okay,” so then I touched him
and I was like, “He probably just needs fluids, you know. He’s weak.
You said he had been throwing up. He’ll be okay.” So[,] as I’m
driving, uh, me and her were talking for maybe two minutes[,] and
then she started to respond -- to call his name again[,] and then he
didn’t respond[,] and then she called it again[,] and he did not
respond[,] and then she started screaming.

Q. Was this in your car?

A. Yes, ma’am. “Tiffany, he’s dead,” and I’m like, “Girl, stop that,
he’s not dead,” you know, and so she still was screaming[,] so I’m
trying to calm her down as I’m driving. I’m like -- so then I kind of
looked up to him -- looked toward him[,] and his little eyes were just
rolled. They were just there, nothing.

Tiffany also testified as to what Ms. Hunt told her about Derrion’s illness, stating

in pertinent part:

A. Well, she told me that night, the night that he was -- when she got
home[,] how he was throwing up and everything[,] and he wasn’t
feeling good[,] and how she gave him some Pepto[,] and how he slept
with her and that he ran a fever and everything[,] but then she said,
you know, the next day[,] he was just looking so weak[,] and he
wasn’t acting his normal self[,] so[,] when she did call me, she said,
uh, that he hadn’t too long just [sic] -- like, he was just laying there,
like she had to pick him up that morning, like he didn’t want to go to
the bathroom by himself, like she had to basically lift him and carry
him and everything. You know, when she called me and was like,
“He’s just laying there.” I was like, “What you mean?”

Q. So[,] she picked him up and carried him to the bathroom for him to
use the bathroom?

A. ’Cause [sic] she said she was picking -- she was holding him
’cause he didn’t want to walk.

Q. And then[,] she had to carry him or whatever to put him on some
furniture or something to watch TV or whatever?

A. She was holding him, uh-huh.

10

Q. And she said he had been like that all morning?

A. That morning, like once she got up. He was sleeping[,] and[,]
apparently[,] she woke him up because he was just still sleeping and
feeling bad ’cause [sic], I mean, that’s what she told me[,] so she just
held him. Now, how long -- you know, I guess that morning[,] like
once he woke up, that’s what she had to do, just hold him and bring
him wherever because[,] when I got there[,] she was still holding him.

Q. And she had him dressed ready to go to the hospital?

A. He had on a shirt and his little, uh -- I think maybe some shorts or
something[,] but he was -- he was ready to go.

Dr. Nicholas Fruge, an emergency room (ER) doctor at Opelousas General

Hospital, was accepted by the trial court as an expert in emergency room medicine.

He testified that on December 19, 2011, he was working in the ER at Opelousas

General Hospital. The ER report, which was admitted into evidence, indicated that

Derrion was two years old at the time he was seen. Dr. Fruge stated that Derrion

arrived in the ER around 11:04 a.m. and that, when the child arrived, he was not

breathing and did not have a pulse. He was of the opinion that Derrion was dead

when he arrived. In an attempt to resuscitate the child, intravenous medication was

given and an intubation tube was inserted. Dr. Fruge testified that the child was

revived for five to ten seconds. He further described Derrion as “pale, cool to the

touch, listless, floppy, pupils dilated, unreactive.”

When asked about the cause of death indicated in the autopsy report, Dr.

Fruge testified, in pertinent part:

Q. The final autopsy conclusion was that the duodenum had been
transected. Tell us, have you ever seen that before?

A. Never. That’s a terribly traumatic blow.

Q. It really takes a lot of force to do that?

A. Yes, sir.

11

Derrion’s mother gave a history to the registered nurse on duty in the ER.

This history was indicated in the notes reviewed by Dr. Fruge. The notes were

read by the State to Dr. Fruge. The notes stated as follows: “Yesterday at dad’s

home began with vomiting, diarrhea. Arousable this a.m., this morning, was

verbal and had not eaten. Mom brought the child to ER for decreased response.

Child limp, unresponsive upon arrival to triage desk. CPR initiated.” Dr. Fruge

was questioned as to whether or not he observed any rigor mortis at the time the

victim was presented at the ER. He responded, in pertinent part:

Q. You didn’t observe any rigor mortis, did you?

A. No, sir.

Q. And what’s your experience in rigor mortis? Doesn’t it take about
three hours or so to set in?

A. Rigor mortis is going to usually take six to eight [hours.]

Dr. Fruge estimated the time of the injury to the child at five to six hours before his

arrival at the hospital. He was of the opinion that eight to ten hours would be the

utmost time from the initial onset of trauma.

Robert Fontenot, a registered nurse at Opelousas General Hospital, was on

duty in the ER on December 19, 2011. Mr. Fontenot testified that he took

Derrion’s temperature rectally with a digital thermometer around 11:04 a.m., and

it registered 93.3 degrees Fahrenheit.

Dr. Christopher Tape, a forensic pathologist, was accepted by the court as an

expert. He stated that he conducted an autopsy on Derrion on December 20, 2011.

Dr. Tape testified that the primary cause of Derrion’s death was transecting

duodenal perforation, secondary to blunt force injuries to the body. Dr. Tape

testified in pertinent part:

12

A. The primary cause of death was what I call a transacting duodenal
perforation secondary to blunt force injuries to the body[,] which just
means the intestine right outside the stomach was completely torn.

Q. And you said “blunt force.” Explain that, what you mean by that.

A. All injuries or trauma can be divided roughly into blunt force and
sharp force. This is a blunt force where you -- you hit with a blunt
force object and not a sharp force, not a sharp instrument.

Q. So[,] the stomach was actually pulled apart?

A. I shouldn’t have used that term. It was transected. I’m not sure[,]
[i]t’s -- when I found it, it wasn’t separated.

Q. Okay, all right, and how did that cause death? You heard my bad
attempts at trying to explain it.

A. This is a little bit complex mechanism of death. Really, we deal
with the cause of death, the underlying cause of death. The
mechanism of death can be a little bit complex. It’s usually always a
failed arrhythmia. It’s just kind of a cop out. It just means that he had
a heart attack[,] but did you have a heart attack, that arrhythmia? In
this case, you had to consider what’s outside of your body goes in
your mouth[,] and it basically continues through your body. That’s
basically outside[,] and it should be in your body. Whenever you
have a tear anywhere in your intestines, for whatever reason, that
intestinal liquid and fluid comes out. There was blood and fecal
material in the abdominal cavity. That has acid in it. It has bacteria in
it. It has basically -- it’s sort of a chemical soup that’s not supposed to
be there. It’s directly battling, among other things, your kidneys, the
outside of your intestines, your spleen, your adrenals, your liver, and
that acid and that fecal material on the intestines itself is not good for
you. It’s basically shutting down the body. When you hear about --
this is called -- when you have a perforation, what happens is you get
air within the abdominal cavity. It’s called free air[,] and they see it
on x-ray. This is an emergency. If you talk to a doctor and you say --
an ER doctor or a surgeon [--] and you say, “They found free air on
the x-ray,” that’s a medical emergency, a surgical emergency. They
need to bring that child into the -- into the OR and fix that child.

Again, getting to the exact mechanism of why they die from
that, it’s a little more complicated[,] and it’s probably a combination
of all of those things.

....

Q. Now, you said there was a -- when you opened the child up, did
you see a bruise?

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A. Initially, I do an external autopsy[,] meaning I look at the body first
of all. We take pictures. I did notice in this case there was a bruise to
the right of the bellybutton. We reflect --

Q. On the outside?

A. On the outside I noticed that. When I reflected the skin, I noticed --

Q. When you say that[,] you mean you opened the skin?

A. That’s right[;] so[,] I make a cut, a Y shaped incision on the
body[,] and I reflect the skin so it’s basically skin and muscle[,] and
you can see sometimes a bruise, for whatever reason, might be deep or
hasn’t developed all the way to the surface. You don’t see it on the
surface[,] but[,] when you reflect the skin[,] you see hemorrhage
within the muscle[,] so I saw additional hemorrhages on the left side
of the abdomen that I couldn’t see on the surface. Additionally, I had
made cuts on the back, an incision on the back. I opened up the skin
on the back[,] and I found two other small muscle hemorrhages that I
didn’t notice on the surface of the body.

Q. And how many were there all together? How many -- how many
bruises? I’m going to call them bruises.

A. So[,] there’s the contusion I see to the right of the bellybutton
that’s four by three centimeters[,] and an inch is about two and a half
centimeters. That gives you an idea. On the left upper quadrant of the
abdomen, there’s two, one is 1.5 centimeters and one -- they’re each
1.5 centimeters. Excuse me, I take that back. There’s one on the
right, there’s one on the left that’s 1.5[,] and there’s two on the back[,]
and those are each one centimeter[;] so, again, one on the right, four
by three, one on the left that’s 1.5[,] and two on the back, on the left
lower hip back area, measuring one centimeter.

....

Q. Okay, what about the separation of the duodenum?

A. That’s substantial force.

Q. That takes a lot of force?

A. Yes.

Q. That’s not for a tripping and falling, a kid tripping and falling on
the playground?

A. Not unless they had a significant fall with it. I mean, falling down
a long flight of stairs perhaps[,] but it would be unusual.

14

Q. Were these consistent with blows to the body by a fist or a hand?

A. Yes.

Dr. Tape also found rib fractures, which he estimated some were one to three

weeks old and others were three to six weeks old. Dr. Tape ruled the death was a

homicide. During cross-examination, the following pertinent exchange occurred:

Q. Dr. Tape, as to the blunt force trauma and the duodenal perforation,
is that -- is blunt force trauma the only way that can -- that can occur
in a child or are there other circumstances where it can occur?

A. You could be stabbed and perforated[,] but you’d see a stab
wound. You could be shot and perforated[,] but you’d see the shot.
To actually tear like that or to be completely transected, sometimes
you can [sic] ulcers and you get a perforation and you get a hole[;]
but[,] to be completely transected like that is -- is -- that’s blunt force
trauma[.] [A]nd one of the things that we haven’t mentioned is the
way the duodenum is coming[.] [W]here this injury happened, it
comes from your stomach, down the left stomach, and then goes from
your stomach kind of behind your liver[,] and then comes up and
around right over your backbone here[,] and it’s kind of vulnerable at
that spot. It’s connected by the ligament of treitz[,] and[,] normally[,]
your intestine can kind of move around and get out of the way. If you
hit somebody in the stomach, your intestine will get out of the way[;]
but[,] the ligament of treitz, it will rip and it will tear the intestine
there. You can have this from a car accident[,] but that’s also blunt
force injuries[,] and you see other injuries on the body[,] and you have
a history of a car crash with the front end destroyed type of thing.

....

Q. And you make the conclusion that indicates the injury likely
occurred at least 24 hours prior to death, at least 24 hours prior to
death; is that right?

A. That’s what I say. That’s likely. That’s the language I use because
I don’t think this is an instant thing. It had to take time to develop.

Q. It had to take time to develop to start affecting that child’s system
in a negative way, right?

A. That’s correct.

Q. It had to take time to create a fever?

A. That’s correct.

15

Q. It had to take time to create some symptomatic -- some symptoms
as far as vomiting or not feeling well and abdominal pain, correct?

A. That’s correct.

Q. The temperature of the body. The temperature of the body, is there
a formula that you utilize or that you know there to exist in your
profession that the body cools at a certain rate whereby allowing you
to calculate how long somebody may have been deceased?

A. There are some. They’re very complicated calculations. You can
simplify it making some assumptions assuming that the body was
normal to begin with, assuming that it’s roughly room temperature.
The body cools about one and a half degrees per hour. To be more
specific, it matches the environmental temperature[,] and it starts to
cool a little bit slower after a while[,] but one and a half degrees per
hour is a -- is a proximation that can be used.
Q. And in reference to your report, do you recall what the temperature
was on the child’s -- on the child’s delivery to the hospital?

A. 93.3 [degrees] Fahrenheit.

Q. And is there a way you can do the calculation that would show
what that child’s temperature was -- how long it took that child to die
before?

A. I can give you calculations that will help us give a range. If you
use the one and a half degrees per hour and you see a five degree
temperature change, because we went from 98.6 to 93.3, it’s actually a
little more than five degrees[;] but[,] five degrees to make the math a
little easier, if you assume a degree and a half per hour, that’s three
and a half hours.

Q. Three and a half hours.

A. If you do another calculation and you say, “Well, maybe it was fast
cooling -- excuse me, slow cooling,” maybe a degree per hour, that
gives you five hours. Maybe it’s a little bit faster, two degrees per
hour, that gives you two and a half hours. Maybe it’s really fast
cooling, two and a half degrees per hour, that would give you two
hours[;] so[,] that gives you a range and also so of [sic] an average a
little bit.

....

Q. Now, you said anything is possible as to the -- you made the
comment earlier that anything is possible[,] but I want to particularly
go back to the transecting duodenal perforation secondary to blunt

16

force injuries to the body. You said, based on your science, based on
your experience and everything that you do, that at a minimum[,] it
was greater than 24 hours prior to the child’s death, at whatever time
that may have fallen, correct?

A. Putting all the pieces together, that’s my best conclusion, yes.
On redirect, Dr. Tape explained in pertinent part:

Q. The 24 hour time period, that’s a guess; is it not?

A. It’s a guess based on sort of the circumstantial evidence and the
autopsy findings and the fact that, again, you don’t die instantly. This
is not instantaneous death.

Q. Could it be ten hours?

A. Sure, anything, you know, there’s going to be a range.

Q. Well, give us the range. I mean, you picked 24[,] but give us the
range that you think[.] [B]ased on what you saw, what is the range?

A. One of the reasons I said 24 hours is because he was experiencing
symptoms that are consistent with that of not eating or drinking[,]
and[,] when your intestines do this, they shut down. You do not eat or
drink. You don’t touch anything. That’s my interpretation of the
clinical circumstances[;] and, again, I’m relying on that[,] but I’m
putting it all together and coming up with the best conclusion.

A summary of the autopsy report, which was admitted into evidence as

State’s Exhibit 1, provided in pertinent part:

CIRCUMSTANCES/COMMENT:

The decedent was a 2½ -year-old black male child who was brought
to the ER by his mother in cardiac arrest. She states that he had a
runny nose for approximately 2 days prior to death[,] and[,] the night
before[,] felt as if he had a fever[,] but no temperature was taken. She
said he had abdominal pain and had vomited once[,] and she gave him
Pepto-Bismol approximately at midnight. He slept with his mother
and awoke around 9 a.m.[,] but would not eat. At approximately
10:30 a.m.[,] the mother noticed him not responding and limp[,] and
the mother called a cousin to bring them to the hospital. They noticed
the decedent not breathing approximately 2 blocks from the hospital.
When he got to the hospital[,] his skin was cold to the touch with a
rectal temperature of 93.3 and a capillary blood glucose of 33 mg/dL.
Resuscitation efforts were unsuccessful[,] and he was pronounced

17

[dead] at 11:42 a.m. The only known history is a burn from hot
grease on his right hand.

The primary finding at autopsy is a transecting duodenal perforation at
the ligament of Treitz with blood and fecal material within the
abdominal cavity. There are external injuries including a contusion of
the right abdomen, soft tissue hemorrhage in the muscle of the left
upper quadrant of the abdomen, and two on the left lower back. In
addition, there are mesentery hemorrhages and serosal hemorrhages of
the jejunum and hemorrhage in the left adrenal gland. There are
remote rib fractures on the right, 7 and 9, with hemorrhagic calluses,
and on the right, 10-12, with non-hemorrhagic calluses. There is a
renal vein thrombosis on the left[,] but[,] otherwise[,] no natural
disease is present. There is de-pigmentation of the fingers of the right
hand corresponding to a healing burn. Toxicology is negative.

A transecting perforation of the small intestine in this area is common
secondary to blunt force injuries to the body, as the small intestine is
coming over the spine in this area. Given the evidence of the soft
tissue body hemorrhages, as well as the healing rib fractures, the most
likely cause of death is a traumatic duodenal perforation secondary to
blunt force injuries to body with the manner being homicide. The
clinical history of being sick for a few days[,] and not eating for at
least the day of his death[,] and vomiting the prior day with a low
capillary blood glucose level indicates that the injury likely occurred
at least 24 hours prior to death. The temperature of the body upon
arrival to the ER suggests that the decedent was dead for perhaps a
few hours before being brought in. The remote rib fractures, two with
hemorrhages and three without hemorrhages[,] indicate at least two
prior injuries. These fractures are likely non-accidental and probably
occurred days or even weeks before the blunt force injuries to the
body that caused the transecting duodenal perforation. The renal vein
thrombosis is likely due to the injuries, coupled with possible venous
stasis due to immobility or decreased mobility secondary to injuries.

Dr. Richard Howes, a professor of clinical pediatrics at LSU Medical

School, was accepted by the court as an expert in pediatrics and child abuse and

neglect. Dr. Howes testified in pertinent part:

Q. [D]o you agree with Dr. Tape’s analysis of the two sets of broken
ribs, the one that he said was -- you did not hear Dr. Tape’s testimony
....

A. It would be relatively recent. They certainly did not occur at the
time of the other injuries to this child. It would have had to occurred
at least five to seven days prior to that, yes.

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Q. Okay, and also, the second one, right ten, eleven and twelve,
calluses without hemorrhaging, he said that was even further, more
remote from the duodenal transection.

A. Absolutely. This definitely indicates that there were rib fractures
on at least two occasions and at least five to seven days prior to the
death of the child.

Q. Okay, so what we have is rib fractures five to seven days on the
first set[,] and how much earlier do you think the second set that
wouldn’t have no calluses, in your experience?

A. Well, we know for sure that they occurred after October the 10th or
so because the child had a chest x-ray at that time when he had burns
to his hands.

Q. Okay.

A. So[,] we know that there were not rib fractures[,] then so they
would have had to occur after that[,] but there had been substantial but
not complete healing[,] so, you know, probably several weeks beyond
the -- the other set.

Q. Okay, so we know that the outside, October what, 10th?

A. Right.

Q. Okay, so we know it was after October the 10th but probably some
-- and we know it was before December the 19th.

A. Correct.

Q. Okay, and we have the burns on the hand. I don’t know if you saw
that. You reviewed the records on that?

A. I reviewed the records on the -- on the burns, yes.

Q. Okay, not counting -- I don’t want you to consider the burns on the
hand, all right. Do not bring them into your consideration. What
conclusion -- but assume that there is a knot, which is maybe some
days old, a couple of days old, on the forehead of the child as shown
in the photographs 2 A, B and C, the rib fractures that are on the right
ten, eleven and twelve[,] and the rib fractures on seven and nine[,] and
a transection of the duodenum, would you say this child had been
subjected to physical abuse?

A. Yes.

Q. As an expert, do you have any doubt about that?

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A. No.

Q. Would you say that the transection of the duodenum was --
required a great deal of force to the body of this child?

A. Yes.

Q. Would you say that the rib fractures that are observed on -- in
seven and nine with the calluses, did those require a good bit of force?

A. Yes.

Q. Would you say that the rib fractures that you saw on ten, eleven
and twelve, would they have required a great deal of force?

A. Yes.

Q. These are not kind of -- you’ve been a pediatrician for how many
years? My math’s not very good.

A. I’ve got to do a little bit of math myself. Since ’76[,] so this
summer it will be 39 years.

Q. Okay, so -- so 39 years. Well, first of all, have you ever seen a
transected duodenum in a child in child abuse?

A. I -- I don’t recall specifically[,] but I do think I did see one in the
late ’70’s where a child fatality had the transected duodenum.

Q. Once?

A. Yes.

Q. And how many children do you see, examine, during the course of
a year?

A. Several thousand.

Q. Several thousand, okay, and so would you say that that required a
good bit of force to cause that injury?

A. Yes, sir.

Q. And as with the broken ribs?

A. Yes.

Q. What about the knot on the head? If -- if that was a blow to the
head, would that require some force?

20

A. For a blow to the head like -- yes, that would require some force.
It would have been more easily made if the child struck his head on
something or he was thrown down and his head hit. To hit a child
with your hand and produce that would be unusual. Could occur.

Q. Okay. Now, of course, you’re not telling us -- you don’t have any
idea who did this or how --

A. No, sir.

Q. -- if it was one, two, three, four, five or six people?

A. I don’t know.

Q. You do not know. And is there any way to tell, particularly the
transection of the duodenum, is there any way to say if it was a fist, a
foot, a toe, a heel?

A. It is not possible for that.

Q. No way to do that?

A. No.

On cross-examination of Dr. Howes, the following pertinent exchange occurred:

A. Actually[,] I also looked at chest x-rays from August when the
child was in the emergency room for a -- being hit in the abdomen
with a swing.

Q. Okay.

A. And[,] at that time[,] there were x-rays taken and no rib fractures
identified.

Q. Okay.

A. And then again in October when the child was brought in with
burns to his hand after three days[,] and then was hospitalized in a
burn unit, his -- x-rays were taken then. I think he had a cough then[,]
so it wasn’t taken because of suspicion of injuries. It was taken
because of his cough[,] but it did not show rib fractures then. I didn’t
see the x-rays myself. I -- I’m going by reports.

On re-direct examination, Dr. Howe stated that in this kind of case, it would

normally be a single perpetrator and, occasionally, another person permitting the

abuse to happen.

21

The unrebutted testimony and evidence, which is not challenged by

Defendant, clearly indicates that Derrion died as a result of cruelty to a juvenile

and that there were only two people who could have possibly committed that

offense: Defendant and Ms. Hunt. A review of the record indicates that at trial,

Defendant’s attorney did not directly implicate Ms. Hunt as the perpetrator. In his

opening statement, Defendant’s attorney argued there was direct conflict between

the experts, the evidence, and Ms. Hunt’s testimony. However, on appeal,

Defendant argues, “Based on Dr. Fruge’s estimation[,] it certainly could have

occurred between 9:00 a.m. and 11:00 a.m. on December 19, 2011[,] when D.S.

was in the sole care of Latricia Hunt.” Thus, there is a question as to whether the

hypothesis of innocence that implicates Ms. Hunt as the perpetrator was presented

at trial.

In State v. Taylor, 14-432, pp. 7-8, (La. 3/17/15), 166 So.3d 988, 993-94

(emphasis added), the court explained in pertinent part:

The rational trier of fact standard established by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), preserves “‘the
factfinder’s role as weigher of the evidence,’” by requiring an
appellate court to review “‘all of the evidence . . . in the light most
favorable to the prosecution.’” McDaniel v. Brown, 558 U.S. 120,
134, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson, 443 U.S.
at 319, 99 S.Ct. at 2781). Preserving the role of the factfinder means
that in cases involving circumstantial evidence, when “the jury
reasonably rejects the hypothesis of innocence presented by the
defendant [ ], that hypothesis falls, and the defendant is guilty unless
there is another hypothesis which raises a reasonable doubt.” State v.
Captville, 448 So.2d 676, 680 (La.1984). The alternative hypothesis
is not one that merely “could explain the events in an exculpatory
fashion,” but one that, after viewing all of the evidence in a light most
favorable to the prosecution, admissible as well as inadmissible, “is
sufficiently reasonable that a rational juror could not ‘have found
proof of guilt beyond a reasonable doubt.’” Captville, 448 So.2d at
680 (quoting Jackson); see State v. Hearold, 603 So.2d 731, 734
(La.1992) (“[W]hen the entirety of the evidence, both admissible and
inadmissible, is sufficient to support the conviction, the accused is not
entitled to an acquittal, and the reviewing court must then consider the

22

assignments of trial error to determine whether the accused is entitled
to a new trial.”). Preserving the role of the factfinder by an appellate
court also means that a defendant may not “split[ ] alternative and
inconsistent defenses in different forums, raising one defense before
the jury and when that fails, a second defense presupposing a different
set of facts in an appellate court conducting sufficiency review under
Jackson and La.C.Cr.P. art 821(E).” State v. Juluke, 98-0341, pp. 4-5
(La.1/8/99), 725 So.2d 1291, 1293.

The following timeline is based upon the testimony and medical records

admitted into evidence at trial:

Summer 2011 . . . . Defendant and Ms. Hunt began dating and living

together on and off.

August 5, 2011 . . . . Derrion was brought to the hospital. He

complained of stomach and rib pain. Ms. Hunt gave a history of

Derrion being accidentally hit by a swing while in the care of

Defendant. According to the medical records and testimony of Dr.

Howes, the chest x-ray did not show broken ribs.

October 7, 2011 . . . . Derrion was brought to the hospital for a burn

to his right hand (2nd degree burn) which happened on October 4,

2011. History from mother said it was a hot grease burn. The chest

x-ray did not show any broken ribs.

November 7 to December 12, 2011 . . . . Dr. Tape testified that

Derrion’s rib fractures occurred from one to six weeks from the date

of his death.

December 8, 2011 . . . . Ms. Sam testified that Derrion had a bruise

on his forehead and scratches on his face. Derrion said that Defendant

hit him, but Ms. Hunt testified that Defendant said Derrion hit his

head on the wall.

23

December 18, 2011:

Morning . . . . According to Ms. Hunt, Defendant arrives at

home.

11:42 a.m. . . . . According to Dr. Tape and the autopsy report,

the best estimate of when the injury occurred to the duodenum

(twenty-four hours before Derrion was pronounced dead at

11:42 a.m.). Both Defendant and Ms. Hunt could have been

present.

3:00 or 4:00 p.m. . . . . According to Ms. Hunt, she goes to

work.

4:30 p.m. . . . . According to Defendant’s mother, she dropped

off Defendant at Ms. Hunt’s home.

10:20 p.m. . . . . Ms. Hunt returns to her home.

December 19, 2011:

1:42 a.m. . . . . Dr. Tape admitted the injury could have

occurred this late (ten hours before Derrion was pronounced

dead at 11:42 a.m.). Both Defendant and Ms. Hunt were with

Derrion.

1:42 a.m. to 3:42 a.m. . . . . According to Dr. Fruge, the earliest

the injury occurred (eight to ten hours before Derrion was

pronounced dead at 11:42 a.m.). Both Defendant and Ms. Hunt

were with Derrion.

5:42 a.m. to 6:42 a.m. . . . . According to Dr. Fruge, the best

estimate of when the injury occurred (five to six hours before

24

Derrion was pronounced dead at 11:42 a.m.). Both Defendant

and Ms. Hunt were with Derrion.

5:04 a.m. to 9:04 a.m. . . . . Dr. Tape estimates Derrion died

based upon his body temperature taken upon arrival at the

hospital, 11:04 a.m. (two to five hours before it was taken).

9:00 a.m. . . . . Defendant leaves Ms. Hunt’s home.

9:00 a.m. to 11:00 a.m. . . . . Ms. Hunt and Tiffany testified

Derrion was still responsive.

11:04 a.m. . . . . Ms. Hunt arrives at the hospital with Derrion,

DOA (dead on arrival), according to the medical records.

Derrion’s body temperature is 93.3 degrees Fahrenheit.

11:42 a.m. . . . Derrion is pronounced dead.

According to the unrebutted testimony of the experts, the timeline shows that

Defendant was present during all the times when the injury likely occurred.

Although the evidence indicates Ms. Hunt was more than likely present when the

trauma occurred, no evidence was presented to prove Ms. Hunt committed the

abuse. Thus, we find that the jury obviously and reasonably rejected any

hypothesis of innocence based on Ms. Hunt having committed the crime.

Next, Defendant does not question that the child died as a result of cruelty to

a juvenile. Instead, he denies being the perpetrator of the crime. In State v. Harris,

14-981 (La.App. 3 Cir. 3/4/15), 157 So.3d 1230, a case similar to the present one,

the defendant was convicted of second degree murder. A twenty-one-month-old

female child was found dead at her home. The forensic pathologist, Dr.

Christopher Tape (Dr. Tape), determined the cause of death to be “‘acute

peritonitis due to stomach perforation resulting from blunt force injuries,’ and the

25

manner of death was determined to be homicide.” Id. at 1233. Dr. Tape also

found approximately sixteen bruises on the victim’s body, all of which appeared to

be less than eighteen hours old. On appeal, the defendant challenged the

sufficiency of the evidence arguing in pertinent part:

The defendant asserts that the State’s case was based solely on
circumstantial evidence since no eyewitnesses testified at trial as to
seeing him kill the victim. He argues that there was insufficient
evidence to prove he specifically intended to kill the victim, and there
was insufficient evidence to prove that he killed the victim while
committing the felony of cruelty to a juvenile. The defendant further
asserts that there was a sufficiently reasonable hypothesis of
innocence, that is, “Porsha Miller struck the fatal blow that caused the
death of A.J.M. and was responsible for the repeated abuse of A.J.M.”

Id. at 1240. This court held in pertinent part:

Considering the victim’s cause and manner of death, we find
that there was sufficient evidence that whoever inflicted the injuries
upon Aleecia Miller specifically intended to kill the victim or to
inflict great bodily harm, or without such intent, killed her while
committing cruelty to a juvenile. The evidence was sufficient to
prove that whoever inflicted the injuries intentionally mistreated the
victim, thus committing cruelty to a juvenile. Where the cause of
death was non-accidental blunt force trauma, and the bruises were
inflicted within eighteen hours of the discovery of the victim, there
was sufficient evidence to prove that the victim died during the
commission of cruelty to a juvenile. The only issue remaining is the
identity of the person who inflicted the injuries. This court has stated
the following regarding circumstantial evidence:

[W]hen the conviction is based upon circumstantial
evidence, La.R.S. 15:438 provides that such evidence
must exclude every reasonable hypothesis of innocence.
State v. Camp, 446 So.2d 1207 (La.1984); State v.
Wright, 445 So.2d 1198 (La.1984). However, La.R.S.
15:438 does not establish a stricter standard of review on
appeal than the rational juror’s reasonable doubt
standard. . . . On appeal, the issue is whether a rational
trier of fact, when viewing the evidence in a light most
favorable to the prosecution, could find that all
reasonable hypotheses of innocence were excluded.

State v. Dotson, 04-1414, p. 2 (La.App. 3 Cir. 3/2/05), 896 So.2d 310,
312. Additionally, when a jury “‘reasonably rejects the hypothesis of

26

innocence presented by the defendant[ ], that hypothesis falls, and the
defendant is guilty unless there is another hypothesis which raises a
reasonable doubt.’” State v. Strother, 09-2357, p. 11 (La.10/22/10),
49 So.3d 372, 378 (quoting State v. Captville, 448 So.2d 676, 680
(La.1984)).

In support of his hypothesis of innocence, the defendant refers
to his December 18th statement wherein he told Detective Phillips that
he saw Porsha swinging wildly at the victim. He also refers to the
conditions in which Porsha and Aleecia lived before coming to
Louisiana--living in an abandoned store, being dirty, and the victim’s
[sic] having sores all over her body. These facts, the defendant
argues, show that the victim was neglected before she began living
with him. We note, however, that none of the defendant’s relatives
who testified at trial recalled seeing bruises on Aleecia when she came
to Louisiana. The jury obviously rejected the defendant’s hypothesis
of innocence. Considering all facts established--the victim lived with
the defendant; she had bruises all over her body; there was delay in
reporting her death; the defendant made inconsistent statements to the
police about what happened; he told Mr. Guin he got carried away and
whipped the victim “pretty rough” and then tried to revive her with
CPR; and Mr. Guin’s report of hearing the defendant tell Porsha to
forgive him, stick with the story, and no one would find out what
happened--we find the jury’s rejection of the defendant’s hypothesis
of innocence reasonable.

Id. at 1240-41.

In applying the Jackson standard when the conviction is based on

circumstantial evidence, we find that the evidence admitted at trial clearly and

strongly indicates that Defendant was the perpetrator. As noted above, Defendant

and Ms. Hunt were the only possible people who could have committed the

offense. No evidence was presented to show that Ms. Hunt was the abuser.

Additionally, there was unrebutted testimony that on at least three other occasions

when the child was in the care of Defendant, the child was injured. Moreover, the

unrebutted testimony of the experts indicates that Defendant was present at the

time when the injury occurred. Thus, after viewing all of the evidence in a light

most favorable to the prosecution, we find it is sufficiently reasonable that a

27

rational juror could have found proof of guilt beyond a reasonable doubt.

Therefore, we affirm Defendant’s conviction.

DISPOSITION

Defendant’s conviction is affirmed.

AFFIRMED.

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