State of Louisiana v. Joshua Babineaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-390

STATE OF LOUISIANA

VERSUS

JOSHUA BABINEAUX

**********

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

**********

SHANNON J. GREMILLION
JUDGE

**********

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

CONVICTION AND SENTENCE AFFIRMED.

Pride J. Doran
Dwazendra Smith
Doran & Cawthorne, P.L.L.C.
Post Office Box 2119
Opelousas, LA 70571
(337) 948-8008
COUNSEL FOR DEFENDANT/APPELLANT:
Joshua Babineaux

Earl B. Taylor
District Attorney, Twenty-Seventh Judicial District
Kathleen E. Ryan
Assistant District Attorney
Post Office Drawer 1968
Opelousas, LA 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

Defendant, Joshua Babineaux, was charged by bill of information filed on July

24, 2015, with second degree cruelty to juveniles, a violation of La.R.S. 14:93.2.3.

An amended bill of information adding the charge of oral sexual battery of a victim

under the age of twelve, a violation of La.R.S. 14:43.3, was filed on March 10, 2017.

On November 7, 2017, the State amended the bill of information to charge

oral sexual battery without the victim being under thirteen years of age. Defendant

then entered a “no contest plea under State versus Alford” to the charge of second

degree cruelty to juveniles. Sentencing proceedings were held on November 29,

2017, December 27, 2017, and April 13, 2018. On April 13, 2018, Defendant moved

to withdraw his guilty plea, and the trial court granted that motion. A second

amended bill of information was filed on December 13, 2018, charging Defendant

with second degree cruelty to juveniles and oral sexual battery on a victim under the

age of twelve.

Defendant waived his right to trial by jury on January 3, 2019, and a bench

trial commenced. Defendant was found guilty of second degree cruelty to juveniles

and not guilty of oral sexual battery on January 4, 2019. On January 24, 2019,

Defendant was sentenced to serve five years at hard labor. A Notice of Appeal was

filed on January 31, 2019, and was subsequently granted.

Defendant asserts the following errors:

1. The trial court erred in finding Babineaux guilty of second-
degree cruelty to juveniles when [there was] insufficient evidence to
establish that defendant intentionally placed the victim in hot water or
any other elements of the offense.

2. The trial court erred by placing too much weight on Dr.
Wood’s expert testimony to find Babineaux guilty of second degree
cruelty to juveniles.

3. The trial court erred in excessively sentencing Babineaux to
five years at hard labor for this first time felony conviction.

FACTS

J.R, who was four years old on the date of the offense, was burned with hot

water during a bath.1

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there is

one error patent.

There was no written waiver of jury as required by La.Code Crim.P. art. 780.

However, Defendant and his attorney were in open court when the trial court

extensively questioned Defendant regarding his waiver of jury trial. The trial court

found that Defendant knowingly and voluntarily waived his right to jury trial. See

State v. Bell, 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830 (this court found the

error in failing to obtain a written waiver harmless where defendant and his attorney

were in open court when the judge addressed his right to, and waiver of, jury trial.)

See also State v. Loyd, 18-968 (La.App. 3 Cir. 6/5/19), 274 So.3d 112. Accordingly,

the error in failing to obtain a written waiver in violation of La.Code Crim.P. art.

780 is harmless under the facts of this case.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Defendant contends the trial court erred in

finding him guilty of second degree cruelty to juveniles when there was insufficient

evidence to establish that he intentionally placed the victim in hot water or any other

elements of the offense.

Under the due process standard of Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in
original), “the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a

1
The victim’s initials are used in accordance with La.R.S. 46:1844(W).
2

reasonable doubt.” When reviewing a conviction based upon
circumstantial evidence, the reviewing court must determine whether,
viewing the evidence in the light most favorable to the prosecution, a
reasonable trier of fact could have concluded beyond a reasonable
doubt that every reasonable hypothesis of innocence had been
excluded. See State v. Morris, 414 So.2d 320, 321–22 (La. 1982)
(citation omitted); see also State v. Captville, 448 So.2d 676, 680 (La.
1984) (“When a case involves circumstantial evidence, and the jury
reasonably rejects the hypothesis of innocence presented by the
defendant’s own testimony, that hypothesis falls, and the defendant is
guilty unless there is another hypothesis which raises a reasonable
doubt.”). The reviewing court “does not determine whether another
possible hypothesis has been suggested by defendant which could
explain the events in an exculpatory fashion[; rather, the reviewing
court] evaluates the evidence in the light most favorable to the
prosecution and determines whether the alternative hypothesis is
sufficiently reasonable that a rational factfinder could not ‘have found
proof of guilt beyond a reasonable doubt.’ ” Captville, 448 So.2d at 680
(emphasis in original; citation omitted).

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

original).

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

defined as:

A. (1) . . . the intentional or criminally negligent mistreatment or
neglect by anyone over the age of seventeen to any child under the age
of seventeen which causes serious bodily injury or neurological
impairment to that child.

(2) For purposes of this Section, “serious bodily injury” means
bodily injury involving protracted and obvious disfigurement or
protracted loss or impairment of the function of a bodily member,
organ, or mental faculty, or substantial risk of death.

La.R.S. 14:93.2.3.

The statute also requires that the State prove Defendant acted
with intent or criminally negligent mistreatment or neglect.
“‘Intentional,’ as used in the aforementioned statute pertaining to
cruelty to a juvenile, refers to general criminal intent, present whenever
there is specific intent and also when circumstances indicate that the
offender, in the ordinary course of human experience, must have
adverted to the prescribed criminal consequences as reasonably certain
to result from his act or failure to act.” State v. Green, 449 So.2d 141,
144 (La. App. 4 Cir. 1984). Criminal negligence is defined as “such
disregard of the interest of others that the offender’s conduct amounts

3

to a gross deviation below the standard of care expected to be
maintained by a reasonably careful man under like circumstances.” Id.

State v. Cooper, 15-820, p. 13 (La.App. 4 Cir. 9/13/17), ___ So.3d ___, ___, writ

denied, 17-1561 (La. 11/28/17), 230 So.3d 222.

Allison Roy, a former employee of Hearts of Hope, interviewed J.R. on

February 5, 2015. J.R. was four years old at that time. A video of the Hearts of

Hope interview was submitted as State’s Exhibit 1 and played for the trial court.

During the interview, J.R. spontaneously told Roy that she had burns. J.R. further

stated that her dad wanted to blame it on her, but he ran the hot water. J.R. explained

that Defendant’s son got a scooter for Christmas. She claimed she had a scooter at

her grandmother’s house, and the scooter had been in the yard and gotten dirty.

Thus, her grandmother threw it away. Defendant subsequently told J.R. she did not

need toys. He then ran hot water and made her sit down. J.R. further claimed

Defendant choked her, slammed her in bed, and made her urinate on herself.

Defendant subsequently ran the water and told her to sit down. J.R. also stated

Defendant bit her on the hand. During this interview, J.R. also stated the Defendant

placed his penis in her mouth.2

Sherika Roberts was the mother of J.R., who was eight years old at the time

of trial. Sherika was also friends with Defendant. She had an intimate relationship

with Defendant and believed he was J.R.’s father. After the events at issue, DNA

tests confirmed Defendant was not J.R.’s father.

J.R. met Defendant when she was one or two years old and began visiting him

when she was three or four years old. J.R. spent the night with Defendant and his

family, which included his wife and two kids. There was no visitation schedule, and

2
Because Defendant was found not guilty of the oral sexual battery charge, we have left
out testimony pertaining to that crime.
4

Defendant would call for J.R. to visit. J.R. had visited Defendant four or five times

before she was burned.

Sherika testified that Defendant picked J.R. up on a Friday in January 2015

from school. Sherika checked on J.R. by phone on Friday and Saturday, and she

was fine. On Sunday, Sherika missed a call from Defendant while she was playing

cards at her father’s house. Sherika eventually spoke to Defendant, and Defendant

informed her that J.R. had been burned in the tub. He stated he would try to bring

her to the doctor Monday, and his wife was a nurse and could take care of it. Sherika

had had a couple of drinks and panicked. Defendant then stopped answering his

phone. Sherika got his address from a text message and went with several family

members to his house, which she had not been to before.

Once at Defendant’s house, Sherika brought J.R. outside and placed her in the

truck. This caused J.R. pain, so Sherika laid her down and unzipped the onesie she

was wearing. J.R. had tape and gauze on her body. Sherika removed it and saw

pink. She then called police. J.R. was transported by ambulance to Our Lady of

Lourdes. J.R. was subsequently transferred via ambulance to Baton Rouge General

Burn Center. J.R.’s injuries were depicted in State’s Exhibits 2, 3, and 4. J.R.

remained at the burn center for approximately three months.

Sherika testified the burns had to be scraped and skin grafts performed. J.R.

had a feeding tube and had to learn to walk and eat again. She also had therapy.

Sherika described what J.R. was like during the first two weeks of her hospital stay:

Well, when we first got there, [J.R.] was- - it was hard. [J.R.]
had to- - they were scrubbing her burns. [J.R.] screamed in her sleep.
She wasn’t sleeping. She couldn’t eat. She was in a lot of pain, crying
all night. She couldn’t move. It was just heartbreaking.

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

5

According to Sherika, J.R. did not like to go to Defendant’s house and would

cry. The last time J.R. visited before she was burned, she had ant bites all over. She

also suffered human bites.

Sherika believed Defendant ran J.R.’s bath water and put J.R. in the water.

She did not believe J.R. got into the water on her own. Sherika was questioned by

defense counsel about a proceeding held in November 2017 as follows:

Q. And do you recall me continuing by saying, that she got in the
water on her own, and you said, uh-huh, to which I replied, correct, and
you said, uh-huh. Do you recall that?

A. Yes, I do recall.

Q. Okay. All right, and then I asked, wouldn’t it be true that that
version of events is consistent with what [J.R.] told you at the very
beginning?

....

Q. Has [J.R.] ever told you that Joshua Babineaux picked her up and
dropped her in that water?

A. After everything happened, yes, she did tell me. She told me the
story about what happened.

Sherika assumed the water was boiled, but J.R. did not tell her that. J.R. also never

said Defendant dumped her in the water. Sherika had no independent knowledge of

what happened in Defendant’s bathroom.

When asked what J.R. told her about the bath, Sherika testified:

The hot water- - she, she said she got in the tub, and he told her,
don’t get out, don’t- - or I’m coming, or don’t get out or whatever. I
don’t know- - I don’t remember exactly what, and she said that
whenever she was- - you know, she was hollering and telling him it was
hot. She was crying, and I don’t remember.

Melissa Roberts, Sherika’s mother, also testified at trial. J.R. told Melissa that

Defendant pulled his pants down and put his penis in her mouth. J.R. also stated

Defendant bit the tips of her fingers. J.R. further reported to Melissa that Defendant

threw her in bed and choked her, which made her urinate on herself. She then went
6

to take a bath. Melissa testified that J.R. screamed and hollered when Defendant

picked her up for visitation. Melissa thought J.R. “was just being spoiled, but she

was afraid of him.”

Melinda Martin, a nurse at the burn center, was involved in the care of J.R.

Melissa called her into the room to hear J.R.’s statement. J.R. was alert at that time.

J.R. told Martin Defendant placed his penis in her mouth and instructed her how to

move her head up and down. Martin was asked if there was anything unusual about

J.R.’s injuries, and she replied, “Yes, just the nature of the burns, and when you’re

a burn nurse, you learn to understand what a dip is, a sock burn.” She described that

term as follows, “When you look at the feet, and you have an even circle around and

a knife jack burn, where the buttocks are pushed down and the feet are pushed down,

the soles are somewhat spared, and the buttocks and lower back are burned.” Martin

testified J.R. had unusual marks “between her fingers, knuckles area.” J.R. stated

Defendant bit her and put his hands around her neck and slammed her against a bed.

At the time of trial, J.R. testified that she was eight years old, however the

incident took place when she was four years old. She indicated that after she opened

presents, Defendant brought her to a girls’ bedroom. He threw her into the air, and

she fell back on the bed. She did not remember if this was fun or if Defendant was

angry. She subsequently agreed that Defendant looked angry. She thought he might

be angry because her grandmother threw away the scooter Defendant had bought

her. J.R. also testified that Defendant hung her in a closet, but she was not sure on

what day that occurred. J.R. further testified that Defendant bit her fingers, but she

was not sure when this occurred. She testified that she thought she bit Defendant

after he told her to bite him. He then bit her. Defendant also hurt her when she was

burned. J.R. testified that before the bath, Defendant made her suck his private part.

7

J.R. said Defendant ran the bath water, and when Defendant was finding

clothes for her, she got into the tub. When asked if Defendant was in the bathroom

when she got into the tub, J.R. stated, “I’m going to say, ‘“no.’” J.R. testified that

she undressed herself and got into the tub by herself. J.R. told Defendant the water

was hot more than once, and he told her to get in. She did not feel like she could get

out of the tub. She indicated she got out of the tub by herself, and Defendant was

not in the room. She dressed herself and went to the boys’ room. Defendant realized

she had “all kinds of scars and stuff all over [her],” so he called her mother. J.R.

indicated it hurt a lot, and she did not sleep that night. The next morning, she told

“them” she was in pain. J.R. testified Defendant told her not to tell anyone.

J.R. said she got into the tub by putting one foot first then the other, and her

feet burned. She then told Defendant the water was hot. He told her to “‘just get in

it.’” J.R. was further questioned about the events as follows:

Q. . . . Okay, so what did you do from there? Let’s imagine that the
sides of the tub. Did you put your hands on either side of the tub?

A. Yes.

Q. And did you try to sit your bottom down in the water?

A. Yes.

Q. Okay, and what was your reaction? Did you hop back up,
because it was too hot, . . .

A. Yes.

Q. . . . or did you force yourself to sit down, because you were trying
to obey dad?

A. When he left the room, I stood back up, but then I sat down and
then the water started to get like hot.

A. Too hot to bear?

A. Yes, and then, then when I got out- - I don’t know.

8

Q. I know this is hard for you. We’re not going to try to go too long
with this. Do you know, do you have a rough idea how long you were
in that tub? Do you know about how long five minutes is?

A. Yes.

Q. Okay. Was it longer than five minutes?

A. No.

....

Q. Was it longer than one minute?

A. Nodding affirmatively.

....

A. Wait, I think it was five.

Q. It was about five. Okay, so you hop out the tub. Was Joshua
back in the room when you got out the tub, when you first got out?

A. Yes, he came get me, and I wrapped the towel around me, and
then I told, I told him, when we got in the boys’ room- - the boys are
out, though. I told him when we got in the boys’ room, that I felt not
normal.

....

Q. Okay. All right, so what did Josh do when you said, I’m not
feeling normal?

A. I didn’t think he answered me.

J.R. indicated that Defendant saw her feet, and she thought he saw her “behind”

when she put her clothes on. Defendant called someone and told “her to bring

something to put on the stuff I had.” J.R.’s injuries were then wrapped, and she put

on a onesie. She again stated she did not sleep well that night. The following

morning, she told “them” she was hurting. When her mother came to pick her up,

J.R. told her she would tell her what happened when they go home because

Defendant told her not to tell anyone. J.R. was asked if she showed Defendant her

feet. She replied, “He saw it. He saw it.”

9

J.R. testified that she was scared of Defendant “[e]ver since he picked [her]

up [at her] maw-maw[’s].” She indicated she was scared of Defendant when she

first met him because she did not know him, but she did not tell her mother she was

scared.

Detective Eric Reed went to the burn unit on January 19, 2015, to investigate

a sexual battery complaint. He recorded the interview of J.R., who appeared to be

clear headed at that time. In the interview, J.R. reported that Defendant said she ran

the hot water, but she did not. She also said that when she screamed loud, Defendant

put hot water on her back and leaned her against the hot water. During that

interview, J.R. further stated Defendant bit her hands/fingers. He also made her put

her mouth on his penis.

Dr. James Wood was accepted as an expert in pediatric surgery with a

subspecialty in pediatric burns. He indicated J.R. presented with “bilateral lower

extremity injuries to the legs and feet, as well [as] thermal injuries to her lower back

and buttocks.” She had “deep partial and full thickness burns.” Skin grafts were

done to both feet and ankles and the lower back. Dr. Wood noted the pediatric

critical care physician who did the initial consultation described the burns as a

“classic dip pattern . . . of thermal injury, which [was] consistent with patients who

are put into the water.” J.R. had a “classic injury pattern . . . for non-accidental

trauma.” Dr. Wood testified that delay in presentation raised red flags in non-

accidental trauma cases. He considered an injury occurring on Saturday at

approximately 3:00 or 4:00 and presentation in the emergency room at 10:00 Sunday

delayed presentation. Dr. Wood testified that delayed treatment after burns could

cause anorexia, dehydration, pain, fever, and systemic response syndrome. Systemic

response, left untreated, could result in a substantial risk of death.

10

Dr. Wood declared J.R. experienced anorexia, dehydration, and fever, and she

needed tube feeds to give her adequate nutrition. She also had a “foley catheter or

urinary catheter” at some point during hospitalization. J.R. presented with “fairly

classic” symptoms of systemic inflammatory response syndrome. Ten to fourteen

percent of J.R.’s body was damaged. That was considered a significant burn injury.

Dr. Wood opined that J.R. would have had some signs of injury immediately. The

injuries depicted in State’s Exhibits 2, 3, and 4 would not have begun to occur twelve

hours after the burns. Dr. Wood testified there were a mixture of blisters and skin

sloughing off. Additionally,

over the course of the twenty-four hours, the blisters would have been
burst, . . . and then the skin would begin sloughing in those areas, as
well, but in the exact timing of when the blisters would arise, I think is
maybe irrelevant to the fact that this, what I see in these, and of course,
this was not when I saw initially, but what I see in these pictures would
not be consistent with a burn injury that was not immediately evident
as a significant burn injury.

Dr. Wood testified the burns to the bottoms of the feet do not manifest as

significantly as other areas, but the thermal injury was still there. He opined it would

have been unlikely that J.R. “walked on her feet like that.” He then stated, “I would

think it would be unlikely that she could have walked without significant

discomfort.” He testified that kids were more prone to thermal injuries because their

epidermis was thinner.

Dr. Wood agreed that scarring could occur at water temperatures as low as

110 degrees, which may not feel too hot to an adult. The higher the temperature, the

less exposure required for injuries to occur. Dr. Wood opined that water

temperatures that would cause a full thickness burn to one person would not

necessarily cause a full thickness burn to another. He indicated that different

children might be able to handle the same water temperature for different amounts

of time.
11

Dr. Wood was questioned about J.R. and responded as follows:

A. Correct. What I understand you to have asked me there
was-- is her getting into the bathtub and stepping into it, either on her
own or being told to, and sitting down for a little while and then getting
out. Is that consistent with what I saw and what made me have
suspicions of non-accidental trauma, and the answer to that was, “No.”
If I misunderstood-- I may have misunderstood the question then, or
maybe I misunderstood it now.

Dr. Wood then indicated his classification of the cause of J.R.’s injuries as non-

accidental trauma was based on “journalizations about splash patterns” and

statements made by J.R. at the hospital. Dr. Wood agreed that the statements J.R.

made at the hospital were inconsistent with what she testified to at trial.

Dr. Wood testified as follows when asked by defense counsel if the delay in

treatment caused additional injuries to J.R.:

My testimony would be that delay in treatment, certainly could
have caused additional injury. I would not say that her delay in
presentation of thirty hours, definitively caused additional, depending
also what you mean by injury. If you mean in terms of the burn injury
itself, or do you mean in terms of her-- lengthened her hospital-- you
probably need to be a little more specific. If you’re asking if that would
include things, such as her hospital stay, very likely it was a little longer
because of it, sure, then I would actually say, probably, being at home
for thirty hours with the burns, as opposed to getting immediate
treatment, probably did affect her (inaudible) ; and so if that, if you’re
including that sort of thing, and did it cause more injury, yes. If you’re
asking, sort of what I said to [the prosecutor], if you’re asking,
specifically, do I think that presentation, delayed presentation of
twenty-four to thirty-- whatever, thirty hours, was-- that there are-- that
there were objective differences that I could document in her injury,
then no, I couldn’t objectively say anything specific about how that
would affect her.

It was “probably unlikely” the delay increased the portion of J.R.’s wounds that

needed grafting.

Dr. Wood agreed that at the time J.R. left Lourdes, she had been diagnosed

with second degree burns. Second degree burns typically needed some type of

treatment. Dr. Wood stated, “Is it factually true that some second[-]degree burns,

12

again, meaning superficially partial thickness burns and-- may be able to have

treatment at home initially, yes, I would agree with that.”

According to Dr. Wood, the injuries depicted in the State’s exhibits did not

necessarily represent what Defendant saw Saturday, the day J.R. was injured, or

Sunday morning. Taking bandages off for the first time right before the pictures

were taken could have affected how the wounds appeared. Dr. Wood was asked if

applying ointment and bandages and relying on a child’s answers to inquiries could

affect the reasonableness of the delay. Dr. Wood agreed that it could. Dr. Wood

further stated, “If you’re asking me, is it theoretically possible someone has a burn,

that it is significant enough that they no longer have pain at the burn sight [sic], then

that is theoretically possible.”

Dr. Wood was questioned as follows:

Q. If you’d been told that [J.R.]’s dad ran the water a bit too hot,
unknowingly and told her, get in the tub. She gets in the tub on her
own, gets out on her own, says-- he sees that there is some kind of burn,
and they decide to try to treat it at home, and then as a worst case
scenario, take her to the doctor on that Monday morning. If you’d been
told that at the very beginning, would you have included the NTA or
the NAT [non-accidental trauma] entries in your records?

A. Yes.

Q. You still would have.

A. Uh-huh.

Q. Why?

A. Well, I’ assuming you mean, actually also looking at the child,
right?

Q. Okay. Yes, sure.

A. And I’m not talking about talking to her, . . .

Q. Right.

A. . . .nor looking at her injuries, 11:45, when I documented, 11:45
in the morning that she was-- to Monday morning. That story would
13

have been inconsistent, in my medical experience with her injuries, and
that would have been a red flag. Even without significant delay, if there
were-- that that story would have been inconsistent.

Q. In what ways?

A. That she had significant burn injuries, and yes, the ER record
from Lourdes included, maybe a broad differential of things that can
present as burns including chemical burns, which I don’t think anyone
was seriously considering either.

....

A. Likewise, I don’t think that-- again, my speculation may be or
my medical opinion is somewhat in the, in the field, is that that, looking
at that record, I don’t look at that as medical provider and see in the
record, and go, oh, maybe this guy was actually thinking this was a first
degree burn, any more than I think that he was looking at it and
thinking, maybe this is a chemical burn. I think that is, that is a
reflection of some of the formalities of the medical record that may or
may not actually-- which, I think, are unlikely to be documenting any
medical providers [sic] opinion, as evidenced by the fact that the
differential diagnosis was listed that way, that did not show up in the
assessment and plan portion, where the physician was giving their
opinion.

Dr. Wood further testified:

A. So to finish the question you asked me, which was, if I remember
it correctly, if the story had been told to me, as you described to me,
would I have still considered non-accidental trauma? The answer to
that is “yes,” because I don’t think anyone, beginning with the very first
medical provider or for that matter, in my understanding, including
grandmother, mother, whoever first arrived to pick up the child, all the
way until-- you know, throughout the medical record, I don’t think
anyone was considering this to be potentially a minor injury. I think
everyone, from the moment that we became, that the medical
community became aware of her, considered this to be a major injury,
which prompted a call to the Regional Burn Center, which prompted
photographs in the emergency room, and therefore, a story that is
inconsistent with the pattern of injury, . . .

....

A. . . . raises some suspicion of NAT, regardless of whether it is
theoretically plausible in some sense.

Q. And regardless of whether there’s sworn testimony to the
contrary?

A. Sure.
14

Dr. Wood indicated that once J.R. got out of the tub, there would be visible

signs of injury such that a lay person could see it was significant. He expected the

level of injury would have caused significant pain on a continuing basis. He also

expected J.R. to have verbally expressed her pain or at least cried on a continual

basis.

Dr. Wood testified that for J.R.’s injuries, “exposure would have had to have

been either very prolonged, or very hot, meaning well outside of the temperature of

normal bathing temperature.” Dr. Wood was asked, “would water temperature that

would have to be hot enough to cause the thermal injury you saw, would that be felt

by the normal person who stuck their hand in the water?” He answered

affirmatively. Dr. Wood testified that “whatever blistering she was going to have,

whatever skin color changes she was going to have, that those things were visible

very soon.” He further stated, “I think that what you see in those pictures that we

looked at earlier, is the manifestation of changes that would have been immediately

visible, immediately, meaning within, I would think no more than an hour.” Dr.

Wood was asked, based on his experience as a pediatric surgeon who treats children

with burns, if a four-year-old could voluntarily withstand water hot enough to cause

the burns J.R. suffered from for more than five minutes. He responded, “No.”

Dr. Wood opined that J.R.’s explanation of how she got into the tub and out

was inconsistent with the burn pattern. Dr. Wood explained, “part of the significance

of the bilateral feet, as well as the buttocks is essentially, if you put one foot in, and

it’s too hot, you don’t put the other foot in, and so, that would be inconsistent with

voluntarily getting into the tub.”

Dr. Wood also opined that at least five minutes of exposure to 120-degree

water by a child would be required to have any level of burn or thermal injury. Water

15

at a temperature of 120 degrees would not be comfortable for anyone to even briefly

put their hand in. Dr. Wood further testified:

[I]t is not conceivable to me, that an adult could put their hand under
water, thinking it was a reasonable temperature and a child could get
into it, have a prolonged enough exposure to that water, which would
have to also maintain its temperature during the course of the exposure,
to then result in a thermal injury that she has. That, I think that’s
inconsistent.

Dr. Wood opined that 110 degree water was hotter than water that just about anyone

would take a bath in. He indicated 100 degrees would be comfortable for an adult.

Dr. Wood was asked how long it would take for a child to develop burns in 110

degree water. Dr. Wood opined, assuming the water temperature was maintained, it

would take thirty to forty-five minutes of exposure at that temperature to cause J.R.’s

injuries. Dr. Wood further testified, “to make a reasonable hot bath, meaning

something that an adult would say, it’s not, but it’s not too hot, with an amount of

exposure, time wise that would result in her specific injuries.” Dr. Wood continued:

but for there to be a temperature, as you asked, that felt like a reasonable
bath temperature, to have the amount of exposure that it would take, in
my opinion, the water would have probably cooled off, . . .

....

. . .before you got to a place, well before you got to a place that
you could have the types of injuries that she had.

He did not typically see injuries resulting from malfunctioning hot water heaters.

Dr. Wood testified that he had no reason to think that a child would sit with

only her ankles and lower back in the water during the course of a normal bath.

Contact with the feet and buttocks tended to indicate someone was holding the child

in the bath. Dr. Wood testified that “with the clear view marcation what she had,

bilaterally and concentric,” it was a classic pattern of injury for non-accidental

exposure.

16

Jerome Thomas testified that Defendant was his son-in-law, and he had

known him seven or eight years. Thomas had to light the hot water heater at

Defendant’s home around the time Defendant and his wife, Tabatha, were arrested.

Defendant was at work at that time. He was called back to re-light it because it went

out again. At a prior hearing, Thomas testified it had been about a month since he

worked on the hot water heater.

Jahanna Collins testified she was Defendant’s sister-in-law. She was

employed as a medical assistant at a pediatrician’s office. She then stated she was a

triage nurse. When asked about her training, she stated she had worked at the

doctor’s office for ten-and-a-half years. Tabatha Babineaux contacted her about

what type of cream to put on J.R.’s burns. There was discussion about J.R. possibly

seeing the doctor she worked for. Collins told Tabatha to apply the cream “for now,”

but J.R. would need an appointment. Additionally, she advised Tabatha the child

could probably be seen Monday. An emergency room visit was not discussed. She

was not told about the extent of J.R.’s injuries. Collins testified there were no

problems with Defendant abusing children.

Tabatha, Defendant’s wife, had also been charged as a result of J.R.’s injuries.

When she began dating Defendant, he told her he had a child in addition to the two

he had with his ex-wife. Tabatha also had a daughter at that time. She and Defendant

got married in March 2014. Defendant had visitation with his two sons, and

Tabatha’s daughter lived with them. Tabatha had a child with Defendant in July

2014. Tabatha was fine with Defendant bringing J.R. to visit.

Defendant worked offshore and did not have a set work schedule. He could

be gone three weeks to three months but was home for seven days when he returned.

When Defendant was home, his sons were with him. In 2014, Defendant’s sons

were ages seven and three, and the seven-year-old had cerebral palsy caused by
17

being shaken as a baby and did not walk or talk, wore diapers, and was

developmentally slow. Defendant cooked for, fed, and bathed his sons. He also

helped with their homework and took part in extracurricular activities. Defendant

did the same for Tabatha’s daughter.

Tabatha testified that between March 2014 and January 2015, J.R. visited their

home three or four times. By January 2015, J.R. had not spent ten nights with them.

J.R. slept in the room with Tabatha’s daughter, and the room had its own bathroom.

The bathroom the boys used was twelve to fifteen feet from the girls’ bathroom.

Defendant usually bathed his sons, but he did not bathe J.R.

Tabatha characterized J.R. as shy and standoffish, not uncomfortable.

Tabatha was not aware of J.R. getting bitten by ants. There was never an incident

where Defendant purposefully hurt any of their children.

Tabatha assumed Defendant came home on a Thursday in January and picked

up his kids on Friday. That evening, they opened Christmas presents. There were

no problems with J.R. that day. On Saturday, Tabatha’s daughter had a basketball

game, so she got her daughter and the baby ready. Then they left. While Tabatha

was out, Defendant called inquiring when she would be home. Tabatha told him to

get the three kids he was with bathed and dressed to go to spend the night with

Defendant’s mother, as the two had plans for the evening. Ten to fifteen minutes

later, Defendant called and told Tabatha to stop at the store for something because

he thought J.R. burned herself in the bathtub. Tabatha stopped for Neosporin, burn

cream, and bandages then headed home. She arrived at approximately 2:00. J.R.

was dressed, and Tabatha asked her what happed. J.R. responded, “‘Look at my

feet.’” J.R.’s feet were red, and she explained that her bath water was hot. Tabatha

did not get any indication that Defendant purposefully put J.R. in hot water. J.R.

stated she was okay when Tabatha asked her. Tabatha touched J.R.’s feet, and J.R.
18

indicated that it did not hurt. J.R. was nervous at that time. Tabatha then testified

that she asked J.R., “‘Did they hurt,’” and J.R. said yes. Tabatha then gave her five

milliliters of ibuprofen and put Neosporin on her feet. Defendant explained what

happened to J.R., and Tabatha assured him J.R. seemed okay. Defendant was

nervous at that time. Tabatha did not see the need for medical treatment. She was

not aware of any attempts to contact J.R.’s mother at that time.

At approximately 5:00, J.R. and one of the boys were playing with their

Christmas gifts. About an hour later, Tabatha checked J.R.’s feet again, and they

were warm but not tender to the touch and were not discolored. Tabatha called her

sister, who worked in a doctor’s office, for suggestions. Approximately an hour

later, Tabatha noticed J.R.’s feet were discolored. She applied cream to J.R.’s feet

and put bandages on them. She then suggested Defendant call J.R.’s mother.

Tabatha never checked any other area of J.R.’s body. They cancelled their plans and

stayed home with the kids. Everyone went to bed around 9:00. Sunday morning,

J.R. walked to their bedroom and asked to get in bed with Tabatha and Defendant.

J.R. said she was okay. By that time, J.R.’s feet had started to blister. J.R. sat at the

table that morning and ate breakfast. Tabatha called her sister back, and the sister

asked her to send pictures. They discussed an appointment with the doctor and the

type of insurance J.R. had. Tabatha rotated cream, Motrin, and Tylenol to treat J.R.’s

injuries. The discoloration was getting worse, but J.R. did not have a fever and was

not in distress. Either she or Defendant suggested taking J.R. to the emergency

room. Tabatha dressed her in a onesie, and they got in the car.

They arrived at Opelousas General, and J.R. was asleep. The two

contemplated going in, and Tabatha made another call to her sister. Tabatha reported

the blisters were getting worse but J.R. did not have a fever. Her sister told her J.R.

was on the schedule to see the doctor at 8:00 Monday morning. If the child was not
19

running fever and “doing this,” it would be okay to wait until morning. They then

decided to drive home. During that drive, Defendant called J.R.’s mother and told

her what happened and about the doctor’s appointment. Two hours later, the mother

arrived at their home. Defendant was distressed “about all of this.”

When asked if J.R. cried, Tabatha testified, “I can’t say she didn’t shed tears.

Yes, when I got home, when I got home and looked at her feet and asked her what

happened, there were tears, but a panic cry that, I mean that you got different levels

of crying.” Tabatha characterized it as a scared cry. That was the only time J.R.

was tearful.

Lieutenant Lynette Chavis spoke to J.R. on January 16, 2015, four days after

the incident. J.R. reported she was playing with a LeapPad and having trouble with

the letter “b.” Defendant got upset and sent her to her room. Defendant entered the

room while J.R. was lying on the bed. He picked her up, threw her, and choked her.

J.R. then urinated on herself. J.R.’s testimony about a scooter was not consistent

with what she reported to Lieutenant Chavis. Sharika gave a statement to Mitchell

Doucet in which she indicated the burns were not intentional.

Lieutenant Chavis interviewed Defendant regarding the burns. He told her he

ran water and J.R. got into the tub. Before J.R. got out, he saw a blister on her foot.

Defendant then called Tabatha to have her bring home burn cream. Defendant stated

he tested the water, and J.R. told him it was hot. Lieutenant Chavis also questioned

Defendant about the hot water heater due to a previous case she had. Defendant

stated there were no problems with his hot water heater. He reported taking J.R. to

the hospital but not going in because Tabatha’s sister said that as long as J.R. did not

have a fever, it would be alright to bring her in the morning. The statement was

given the day Defendant was arrested, January 20, 2015. Lieutenant Chavis also

interviewed Tabatha. She never discussed the hot water heater with Tabatha.
20

Defendant was thirty-five years old at the time of trial. He testified that he

had two sons and a daughter, and his mother lived with his family. His son was

injured by the babysitter’s son when he was six months old. He did not doubt J.R.

was his daughter. He would pick up J.R. for visitation, and she was nervous at first.

Defendant knew J.R. was bitten by ants while playing outside. Defendant denied

locking J.R. in a closet. He did not recall hanging her in a closet, either. Defendant

also denied biting J.R.

On January 9, 2015, Defendant had all of his kids. He bought J.R. a LeapPad

for Christmas and got one of his sons a scooter. J.R. did not want to play with the

LeapPad, and Defendant told her the LeapPad was the only toy they had. J.R. was

not upset, and he did not get mad at her for not wanting to play with it. He previously

had a conversation with J.R. about taking care of her scooter, which had been thrown

away by her grandmother. This conversation did not occur the weekend J.R. was

burned.

Tabatha took her kids to a basketball game. Defendant and Tabatha had plans

for the evening, so he was supposed to bathe the other kids before all the kids were

brought to Defendant’s mother. He ran bath water for his sons. He started running

J.R.’s bath water and returned to the boys. He remembered telling J.R. to take a

bath. He then began bathing the boys and went back to J.R.’s bathroom and turned

the water off. He then told J.R. to get ready to bathe, and she went in the bathroom.

There was no indication the water was too hot for his sons. When asked if he tested

J.R.’s bath water, Defendant stated, “The only thing I remember is, it’s just always

natural for me. When I turn it on, I just pass my hand real [sic] quick and make sure

it’s set, and especially at that time, I was ready to get back to the other bathroom.”

He did not test the water again before J.R. got in. He turned the water off and left

the room. J.R. yelled to him that the water was hot, and he told her it was not and to
21

get in. Defendant then testified that his sons always said the water was hot, and their

food was hot. Defendant finished washing the boys and dressed them. J.R. told him

the water was hot “[m]aybe twice.” Defendant stated he had never been in the

bathroom with J.R. or bathed her. He further stated, “I just checked to make sure

she was all right by coming to, you know, the end of the hall, and if she’s not out

yet, then I’m back to the boys.” J.R. was getting out of the tub, and he told her where

her clothes were. J.R. then dressed herself. He was not present at that time. When

he saw her, she was wearing pajama pants with a long sleeve shirt.

J.R. told Defendant her feet were hot, and he saw that her feet were “pretty

red.” Defendant then called Tabatha and told her he thought J.R. got burned in the

tub and to get something for burns. J.R. was not crying. It took Tabatha about thirty

or forty minutes to get home. During the wait, J.R. sat on the sofa and watched

television. She did not cry. He asked her a few times before Tabatha returned if she

was okay, and J.R. indicated she was. He saw nothing Saturday evening that would

lead him to believe he should take her to the emergency room. He saw blisters the

next day. He texted Sherika several times, telling her she needed to call him. She

was at work at that time. He called her after she got off work. He heard loud music,

and Sherika said she was playing cards.

When asked if J.R. complained of pain, Defendant stated:

I think so, I mean, that’s why Tabatha had the medicine, you
know, she may have, but nothing extreme to where she was just crying
out loud and just, you know, nothing excruciating where she couldn’t
take it. You know, it was never, you know, loud in the house, where it
would, you know, she was screaming and hollering that she was in
extreme pain.

When asked, J.R. gave two responses–she was okay, or she was not feeling good.

Defendant testified that prior to Sunday afternoon, J.R. did not look the way

she did in the State’s exhibits, which show significant and severe burns on the J.R.’s

22

feet and backside. Defendant did not know why he had not taken J.R. to the

emergency room as of mid-afternoon Sunday. He testified:

I just--thought everything was . . . going to wait until Monday. I mean,
it wasn’t- - it didn’t seem as bad as the- - it wasn’t like pictures are,
where you’d think- - you know, I mean, anybody would have thought,
you know, to bring her then, you know, with all the blistering and all
that, but I mean, like I said, the first day it was just redness, and she
said she was a little uncomfortable; and then the next day, you know, I
mean, we seen [sic] blisters, but it wasn’t, it wasn’t like the pictures the
day after.

He knew about Tabatha’s conversations with Collins, and they relied on what

Collins said. It was his understanding J.R. was scheduled to see a doctor Monday

morning. Defendant had decided to bring J.R. to the emergency room but returned

home.

Defendant indicated he did not intentionally run the water too hot. He turned

on both knobs. He could not say if J.R. adjusted the knobs, but his youngest son had

done so before.

Defendant testified at a proceeding held on December 27, 2017. During that

proceeding, he stated he “‘ran this bath water the same way I thought I ran that bath

water.’” Defendant thought that testifying that he passed his hand through the water

to test it might have been an important fact. Defendant gave a statement to police

on January 11, 2015. In that statement, he said he entered the bathroom, and J.R.

was in the tub bathing. He gave a second statement to police on January 20, 2015.

In that statement, Defendant said “‘she was getting dressed, she said she was hot,

and I saw a small blister[.]’” He further told police that the next morning the

blistering was worse. Defendant disagreed with his prior statement. The statement

further indicated that Sunday morning, J.R. woke up to tell him she was in pain, and

the blistering was worse. In the December 27 proceeding, Defendant testified that

23

after J.R. was dressed, she told him the water was hot and he saw a blister or two on

her feet. Defendant did not recall that.

Defendant was questioned about Tabatha’s testimony regarding applying

cream to J.R.’s feet. Defendant then testified that cream was applied before 7:00

p.m.

Defendant indicated that on Sunday, it was dark before he decided to bring

J.R. to the emergency room. This was after he contacted Sherika. The blisters

looked bigger, but not like in the pictures of J.R. He did not help Tabatha dress J.R.

for the trip to the emergency room. J.R. fell asleep. The only blisters he saw were

on top of her foot. There was one water heater in the house.

After hearing the testimony and reviewing the evidence, the trial court ruled

as follows:

First, I will for the record, make a finding that at the time of the
commission of these events, the victim was four years old. The
defendant testified that today, he’s thirty-five years old, which means
he’s either thirty or thirty[-]one at the time this happened in January of
2015.

The trial court continued:

With regard to the charge of second[-]degree cruelty to juveniles,
93.2.3, there was a lot of evidence presented and a lot of conflicting
evidence, one way or another, some by the same people who testified,
but there is some very compelling testimony that influenced me greatly,
and that is Dr. James Wood. Dr. Wood’s testimony, is in fact one of the
most important things that occurred here, along with others, but Dr.
Wood was clear that despite hearing that the victim in this case testified
that she put herself in the tub, that the physical signs of burn are
completely inconsistent with that; and I’m sure if counsel did their own
research, it wouldn’t be the first time you hear that. There have been
numerous cases before where there’s been testimony by a victim that, I
got into the tub, but yet the medical says, no way, because the level of
burns and the pattern of burns do not fit, because a child is not going
to, not only not place themselves in that type of hot water, but can’t
consistently stay in it and if they do, are going to be moving around.
Dr. Wood said that this is, in fact, a classic example of an immersion
burn. I think Nurse Martin called it dipping, but that the way the burns
were concentric, where they were located, clearly indicates that this was
not accidental. He went on to state that the water would have been--
24

water hot enough to cause the burns that he treated [J.R.] for, would
have been readily noticeable to an adult who placed their hand in that
water while they were putting that water in the tub. He went on to state
that there would be immediate visible signs of that burn after that child
was taken out of that tub. While he did admit that the photographs that
were taken at Our Lady of the Lourdes Hospital on Sunday night,
getting very close to Monday morning, in fact, the testimony was that
the photos were taken within ten minutes of arriving at Our Lady of
Lourdes. Our Lady of Lourdes records, certified copy placed into the
record indicates that arrival was at 23:23, which is 11:23 p.m., which
means the photographs would have been taken by 11:33 p.m. on the
Sunday. The testimony by Tabatha Babineaux and by Joshua
Babineaux today in court, was that on Saturday, it was nothing more
than red. The feet were nothing more than red, and that they didn’t
check anything other than the feet. However, today Joshua Babineaux
on cross examination, admits that he indicated on more than one
occasion that he noticed at least one blister immediately upon [J.R.]
being out of the tub and just prior to her dressing, which may or not be
the reason he called his wife and said, “We need something for burns,”
but it certainly is contradictory to what he testified to today. There was
[sic] immediate signs of a significant burn that caused blistering. I also
find it hard to believe that this child had these burns, played with other
children in the home Saturday evening, Saturday night, went to bed and
slept without a whimper, got up, walked over to the adults [sic]
bedroom and climbed into bed and was complaining then. When I take
the doctor’s testimony into consideration that this child would have
been in substantial pain, pain sufficient that the child would be crying
and that the child would have difficulty even walking. The idea that we
did all we could do, we took reasonable steps by getting some cream,
some gauze, placing that on her foot, without ever looking at the rest of
her body, knowing that she was in a bathtub, defies reason to me, and
Tabatha Babineaux testified that I called my sister, Jahanna Collins, on
three separate occasions, and I not only described to her what I saw, I
sent her pictures. But Jahanna Collins says that she was not given any
info on the extent of the burns. I not only wrote it down. I put a big
square around it with a star next to it. Not knowing what Tabatha was
going to testify to, it just seemed unusual that if you were seeking
medical advice from someone, that you would not give them any
information as to the extent. She certainly didn’t testify that she was
told that they noticed blisters, only relative to no fever. I don’t believe
Tabatha Babineaux’s testimony, based upon that. Why would your own
sister not support your testimony, defies logic to me. In addition to
those prior statements given by the defendant to law enforcement, hand
written [sic] statements that he confirmed today was his handwriting,
he not only indicated that he saw blistering as early as Saturday, right
before she dressed, his statement contains another statement. On the
statement of January 20th, that Sunday morning the blistering was
worse. You wouldn’t say on Sunday the blistering is getting worse,
unless you noticed blistering prior to Sunday. It defies logic to say that.
Second degree cruelty to juveniles, as both counsel have advised me,
and I’m reading from the 2015 Code, because that’s when this occurred,
25

is “Second degree cruelty to juveniles is the intentional or criminally
negligent mistreatment or neglect by anyone over the age of seventeen
to any child under the age of seventeen.” Let’s stop there. I’ve already
established that Joshua Babineaux was over the age of seventeen and
certainly that [J.R.] was four. That takes care of that element, “Which
causes serious bodily injury or neurological impairment to that child.”
By all testimony presented, by all testimony presented, both sides,
there’s one thing I know that is true, the only two people who were in
the bathroom where [J.R.] was burned, was [sic] Joshua Babineaux and
[J.R.]. There’s no dispute by the defense. I’m not saying she wasn’t
burned there, she wasn’t burned in that tub, so I can establish that the
burn occurred at Joshua Babineaux’s household in that bathtub, in bath
water that he put in the tub, by his own testimony. Then I add to that,
the doctor’s testimony, which is substantiated by Nurse Martin, with
regard to the pattern, and the doctor plainly stated that no child is going
to put a foot in water hot enough to cause those damages and then put
a second foot in. They’re not going to do it, not unless they’re made to
do it; and if she couldn’t do it voluntarily, the only other person who
could have forced her to do it, was Joshua Babineaux. Therefore, I find
Joshua Babineaux guilty of second[-]degree cruelty to juveniles, based
upon all of the testimony presented. I also find that, as part of that
finding, that the burns she sustained, do in fact meet the definition of
serious bodily injury in the statute, in that they did, in fact, involve
protracted and obvious disfigurement, impairment of function of a
bodily member and substantial risk of death, as substantiated by Dr.
Wood, due to the systemic response that she had, that there was, in fact,
a substantial risk of death. I will go as far to say for the record, that even
beyond that, that based upon the testimony of Dr. Wood, as to the
obvious signs that would have been present immediately after getting
out of the tub, combined with the statements of the defendant that he
noticed blistering shortly after, that there was sufficient evidence that
there was a significant injury that occurred in that bathtub, that
according to Dr. Wood, that a regular adult would have noticed and
would have seen to be a substantial injury. I can only conclude that the
reason for not getting immediate care was self-serving by the defendant,
in an attempt not to have to come forward with what happened. I can’t
put any other logic on it, based upon what I look at when I look at a
totality of it. Did a four[-]year[-]old’s testimony flip flop here, there?
Yes, but there’s one thing that’s for sure, that this doctor basically gave
me something that was uncontradicted and that is, it couldn’t have
happened. It could not have happened voluntarily. Therefore, I find that
the elements of second degree cruelty to juveniles as contained in
14:93.2.3, have been proven beyond a reasonable doubt by the State,
and I so find Joshua Babineaux guilty of same.

In brief to this court, Defendant notes J.R.’s testimony that she climbed into

the bathtub on her own. He contends the State provided no direct evidence to show

he intentionally placed J.R. in hot water. Despite this, the trial court concluded that

26

he placed J.R. in hot bath water. Defendant contends the investigation into J.R.’s

allegations was not adequately done, as police did not comply with United States

Department of Justice investigation techniques. There were no steps taken to

investigate the hot water heater and to present evidence about its settings or the depth

of the tub. Defendant further asserts the State failed to prove criminally negligent

mistreatment or neglect. Defendant points to Dr. Wood’s testimony that J.R. would

not have been calm after the burns. However, Sherika testified J.R. was playing with

toys Saturday evening, which was confirmed by Tabatha.

The version of the events J.R. gave at trial contradicted Dr. Wood’s theory of

how the burns occurred. However, statements made by J.R. in January 2015 validate

Dr. Wood’s opinion.

In State v. Gaton, 13-30 (La.App. 3 Cir. 6/12/13) (unpublished opinion)3, writ

denied, 13-1642 (La. 1/27/14), 131 So.3d 54, the defendant argued there were

contradictions in the testimony presented at trial. He noted the victim, C.T., initially

denied anything happened to her. She then said Danny was responsible. During a

forensic interview, the victim said defendant put his penis in her vagina and digitally

penetrated her. However, at trial, she stated defendant placed his penis in her mouth

but did not mention the other types of sexual conduct. The victim also denied

defendant placed his hands under her dress while another child testified that he saw

defendant place his hands under the victim’s skirt several times. The defendant

further noted that during her interview, the victim stated the events occurred twenty-

five times with her clothes on, and, at trial, she described one incident in which she

was naked.

This court addressed the issue of contradictory evidence as follows:

3
2013 WL 2494981.

27

The State asserts that the evidence is sufficient to support
Defendant’s conviction. In support of that contention, the State cites
State v. Broussard, 95–792 (La.App. 3 Cir. 12/6/95), 664 So.2d 835. In
Broussard, the defendant was convicted of oral sexual battery for
performing oral sex on the six-year-old victim and making her perform
oral sex on him. On appeal, the defendant argued that because the
victim’s sworn testimony at trial and her unsworn testimony in a
videotaped interview conflicted, the sworn testimony should prevail.

In her videotaped statement, the victim in Broussard stated that,
while in the rocking chair, the defendant made her suck his bottom and
he licked hers. At trial, the victim testified the defendant merely kissed
her while they were in a rocking chair. The victim’s mother testified
that the victim told her the defendant made her suck his penis while
they were on a reclining chair. This court found the evidence, when
viewed in a light most favorable to the prosecution, showed the
defendant made the victim perform oral sex. This court further found:

We decline Broussard’s invitation to review the jury
decision and accord greater weight to T.C.’s trial
testimony. The jury was free to ascribe T.C.’s trial
testimony whatever weight it judged reasonable, or none
“at all” if it found T.C.’s taped testimony and the
recollection of her mother were more credible and
accurate. The record supports the jury’s findings, and we
will not reevaluate the credibility of the witnesses. See
State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992).

Id. at 840.

In State v. Simmons, 03–20 (La.App. 5 Cir. 4/29/03), 845 So.2d
1249, the defendant was convicted of aggravated rape and aggravated
crime against nature. On appeal, the defendant argued the victim’s
testimony was unreliable, as there were inconsistencies in her
testimony. On appeal, the fifth circuit noted:

Although there may be slight inconsistencies in
minor details of the events surrounding her attack, the
child never wavered in her statementto [sic] her mother,
Officer Carrone, Dr. Benton, Omalle Gordon, and, finally,
at trial—that defendant put his “thing” in her mouth and
“down there,” i.e. in her vagina. Further, the alleged
discrepancies are not necessarily indicative of
untruthfulness or incompetence. Rather, memory lapse
and alleged inconsistencies may have resulted from the
child’s tender age—5–years–old—on the date of the
incident; the traumatic nature of the experience; exposure
to unfamiliar surroundings; or the method of interrogation.
See, State v. Foy, 439 So.2d 433, 434 (La.1983).

Id. at 1258.
28

....

In State v.C.S. [sic], 10–507 (La.App. 3 Cir. 11/17/10), 50 So.3d
983, the defendant was convicted of the aggravated rape of his six-year-
old daughter. On appeal, the defendant implied the victim’s testimony
was not credible because she had changed her accusation of who abused
her several times. The defendant filed a complaint with police alleging
his former girlfriend’s brother had abused the victim. After the victim
was removed from the defendant’s custody, she stated the defendant
abused her, and she consistently maintained that position through the
trial. In affirming the defendant’s conviction and sentence, we stated:

In State v. Rideaux, 05–446, p. 2 (La.App. 3 Cir. 11/2/05),
916 So.2d 488, 491, this court quoted the following ruling
in State v. Roca, 03–1076, pp. 11–12 (La.App. 5 Cir.
1/13/04), 866 So.2d 867, 874, writ denied, 04–583
(La.7/2/04), 877 So.2d 143, which in pertinent part stated:
“In the absence of internal contradiction or irreconcilable
conflict with physical evidence, one witness’s testimony,
if believed by the trier of fact, is sufficient support for a
requisite factual finding.”

Considering the evidence in a light most favorable to the
prosecution, sufficient evidence exists to sustain the
verdict of aggravated rape of a child under the age of
thirteen years.

Id. at 986.

In State v. Waguespack, 06–410 (La.App. 3 Cir. 9/27/06), 939
So.2d 636, the defendant was convicted of aggravated rape. On appeal,
this court, after recognizing that there were inconsistencies in the
versions of events given by the victim at the emergency room, the
advocacy center, and at trial, stated:

T.B.’s testimony may be clearer than her initial reports due
to her inexperience with sexual activity.

Furthermore, “[t]he fact that the record
contains evidence which conflicts with the
testimony accepted by the trier of fact does
not render the evidence accepted by the trier
of fact insufficient.” State v. Holley, 01–
0254, p. 6 (La.App. 3 Cir. 10/3/01), 799
So.2d 578, 583, citing State v. Tompkins, 403
So.2d 644 (La.1981), appeal after remand,
429 So.2d 1385 (La.1982).

State v. Schexnaider, 03–144, p. 9 (La.App. 3 Cir. 6/4/03),
852 So.2d 450, 456–57.
29

Id. at 642–43.

In the instant matter, the jury heard the inconsistencies detailed
during C.T.’s interview and her testimony at trial. C.T. merely
mentioned Danny once during her interview and never referred to him
again. C.T. reported to her mother and Joseph[, the forensic
interviewer,] that the acts were committed by Defendant and testified
in the same manner at trial. The jury, as the trier of fact, was free to
accept any part of C.T.’s testimony. The jury could have determined
that, as in Simmons, 845 So.2d 1249, . . . , any inconsistencies in C.T.’s
claims were due to C.T.’s age at the time of the offense. The verdict
clearly indicates the jury chose to believe Defendant committed the acts
against C.T. That credibility determination should not be second-
guessed by this court. Based on the decisions cited herein, the evidence
was sufficient to support Defendant’s conviction, as C.T. stated during
her interview and at trial that Defendant placed his private in her mouth.
Accordingly, Defendant’s first assignment of error lacks merit.

Id. at pp. 5-8.

Defendant’s trial testimony suggested as a reasonable hypothesis of innocence

that J.R. had accidentally injured herself. His version of the events was corroborated

by J.R.’s testimony. The trial court’s reasons for rendering the verdict of guilty of

second degree cruelty to juveniles clearly state that it found Defendant’s testimony

and that of J.R. confirming his version of the events unbelievable.

In a statement to Detective Reed on January 19, 2015, approximately nine

days after she was burned, J.R. said Defendant put hot water on her back and leaned

her against it. J.R.’s statement was substantiated by Dr. Wood’s opinion that J.R.’s

injuries were the result of non-accidental trauma. Dr. Wood also indicated that the

pediatric critical care physician who did the initial consultation described J.R.’s

burns as a classic dip pattern of thermal injury. Nurse Martin also described J.R.’s

burns as “a dip.” The discharge summary from Baton Rouge General stated, “This

is a 4-year-old female who initially presented after mom picked up child from her

father’s house where patient reports that he had dipped her in hot water.” This

30

evidence, which was clearly believed by the trier of fact, proves beyond a reasonable

doubt that Defendant intentionally placed J.R. in hot water.

J.R. had deep partial and full thickness burns on ten to fourteen percent of her

body. As a result, skin grafts were done to both feet and ankles and her lower back.

These injuries satisfy the requirement that J.R. suffered serious bodily injury at the

hands of Defendant.

For these reasons, Defendant’s conviction is affirmed.

EXPERT TESTIMONY

In his second assignment of error, Defendant contends the trial court erred by

placing too much weight on Dr. Wood’s expert testimony to find him guilty of

second degree cruelty to a juvenile.

Defendant contends Dr. Wood did not use many of the routine assessments of

burn patterns that are noteworthy in determining whether a burn is a non-accidental

trauma, including sparing. Additionally, Defendant argues that Dr. Wood’s

testimony was problematic because he placed too much emphasis on the

presumption that a child who gets into hot water will not remain in the hot water due

to discomfort and did not consider other subjective factors that could have influenced

J.R.’s decision to remain in the hot water. Defendant further asserts Dr. Wood’s

inferences and opinions regarding the intentionality of J.R.’s injuries were abstract

and indirect and related to an ultimate issue. Thus, the trial court placed too much

weight on Dr. Wood’s opinion that Defendant held J.R. in the hot water. Defendant

contends there were other reasonable theories as to what occurred that raise a

reasonable doubt, including J.R. was so afraid of Defendant and her new

environment that she did not want to exit the hot bath after entering it. Therefore,

the trial court should not have found beyond a reasonable doubt that Defendant

intentionally placed J.R. in the hot bath water.
31

Defendant alleges Dr. Wood’s testimony related to an ultimate issue. Dr.

Wood never specifically testified that Defendant held J.R. in the water. Defense

counsel objected when the trial court questioned Dr. Wood about the water

temperature and the length of exposure to the water. Defense counsel additionally

objected on the basis of leading when the trial court asked Dr. Wood whether a child

could withstand putting a second foot into the water. However, he did not object

when the trial court asked whether a four-year-old child could voluntarily withstand

water hot enough to cause J.R.’s burns for five minutes or more or when Dr. Wood

testified that J.R.’s injuries were caused by non-accidental trauma. A new basis for

objection cannot be raised for the first time on appeal. See La. Code Crim.P. art.

841.

In State v. Lemoine, 14-1158, p. 20 (La.App. 1 Cir. 9/26/17), 232 So.3d 637,

650, the court addressed the weight to be given testimony by the trier of fact as

follows:

The trier of fact is free to accept or reject, in whole or in part, the
testimony of any witness. Moreover, when there is conflicting
testimony about factual matters, the resolution of which depends upon
a determination of the credibility of the witnesses, the matter is one of
the weight of the evidence, not its sufficiency. The trier of fact’s
determination of the weight to be given evidence is not subject to
appellate review. An appellate court will not reweigh the evidence to
overturn a fact finder’s determination of guilt. State v. Taylor, 97-2261
(La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally
precluded from acting as a “thirteenth juror” in assessing what weight
to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La.
10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence
that conflicts with the testimony accepted by a trier of fact does not
render the evidence accepted by the trier of fact insufficient. State v.
Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985).

The trial court’s evaluation of the credibility of Dr. Wood’s testimony was within its

discretion as the factfinder.

This assignment of error lacks merit.

32

EXCESSIVE SENTENCE

In his third assignment of error, Defendant contends the trial court erred in

excessively sentencing him to five years at hard labor for his first felony conviction.

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

punishable by imprisonment at hard labor for not more than forty years. La.R.S.

14:93.2.3. Defendant was sentenced to serve five years at hard labor.

Defendant introduced a transcript of the prior testimony of Jessalyn Crossley

as Defense Exhibit 1. Jessalyn was the mother of Defendant’s two sons. She

discussed Defendant’s interaction with his sons and his work schedule. Jessalyn had

no concerns about Defendant being abusive toward their children. Jessalyn spoke

to her sons about the burn incident. They told her they heard screaming in the house,

and they could not sleep because J.R. cried that night.

Tabatha Babineaux had been married to Defendant for four-and-a-half years.

She discussed Defendant’s children and his interaction with them. While Defendant

had his sons, he would drive them from his home in Sunset back and forth to school

in Breaux Bridge. Defendant accommodated his son. He co-parented with Jessalyn

in a cordial manner. He treated Tabatha’s daughter like the other children. She

further discussed Defendant’s relationship with the daughter they shared. Tabatha

testified regarding fifteen photographs admitted as Defense Exhibit 2. These

photographs were of Defendant and his children. Tabatha also discussed

Defendant’s work history, noting he was the sole provider for their family. Tabatha

claimed she would have to work three or four jobs to provide for the family in

Defendant’s absence. After the incident, their children were removed from the home

for sixty-two days. During that time, she and Defendant went through training,

counseling, anger management, and parenting courses. Defendant also had to see a

33

psychologist for a year. She had no concerns about Defendant being abusive to

children in their household in the future.

Defendant stated he was sorry for the pain J.R. and her family experienced.

He confirmed that he had attended anger management and completed parenting

classes. He had also attended private sessions with a counselor for a year. The

programs were ordered by the court. The mother of his sons, Jessalyn, died on

January 12, 2018. Custody of his sons had been an issue since June 2018. A court

in Monroe granted him supervised visitation. Defendant reiterated that he was sorry

for what happened, and it was an accident. He indicated his family would suffer if

he was incarcerated. Additionally, his mother could not work and was living with

him.

Sherika Roberts testified the events were stressful for her, she had to undergo

counseling, and she still could not work. She lost her car and her job. She indicated

J.R. refused to wear shorts or a bathing suit and participate in different activities.

Sherika noted that as a result of her injuries, J.R. had to learn to walk again. J.R.

was also mentally disturbed as a result of the events. Defendant did not contact her

after the incident. Sherika stated that imprisoning Defendant would be justice for

her daughter.

Jessie Crossley testified that Jessalyn was his daughter, and she died January

12, 2018. He had custody of his grandsons, Defendant’s children. He testified

regarding his custody battel with Defendant.

After hearing testimony and arguments from counsel, the trial court stated he

had considered the sentencing guidelines. The trial court noted that Defendant had

no prior criminal record. It further addressed the credibility of Defendant and his

wife, stating he felt there was a “reaction” by Defendant and his wife to try to cover

up “this whole thing.” However, in doing so, J.R. did not receive the medical care
34

she should have received immediately. The trial court further commented on

testimony that Defendant and his wife actually drove to the hospital but did not take

J.R. in because she was asleep. The trial court stated its credibility determinations

were bolstered by the testimony of Jessalyn Crossley that her children stated J.R.

cried so much the day she was burned they could not sleep. The trial court noted it

was not prohibited from suspending Defendant’s sentence and placing him on

probation. He then pointed out that second degree cruelty to juveniles was a crime

of violence. The trial court declared:

[T]he actions by the defendant, in failing to provide immediate
professional medical care to the victim in this case, manifested
deliberate cruelty. I do find that the defendant knew or should have
known that this victim, being a four year old child, was incapable of
getting help for herself therefore, that fell upon him, and he failed to do
it. And while the defendant, today, expressed remorse for what
happened to [J.R.], the victim, I didn’t hear “I’m sorry, I should have
done the following, I should have gotten help earlier. I should have
done this, I should have done that.” I didn’t hear that. I didn’t hear it
at trial for sure. I think the defendant wants everyone to believe this
was just a horrible accident, and he’s sorry that it happened. I think it’s
much more than just an accident, and that’s why I convicted him. . . .
And certainly, while any sentence involving incarceration of this
defendant will cause rippling effects to this family, that is true anytime
we sentence somebody to incarceration, and that while it’s a factor, it’s
not a controlling factor for me.

At the time the sentence was imposed, defense counsel entered a general

objection thereto, and no motion to reconsider sentence was filed. In State v.

Barling, 00-1241, 00-1591, pp. 10-11 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1041-42, writ denied, 01-838 (La. 2/1/02), 808 So.3d 331, this court discussed the

review of sentences in such cases as follows:

The failure to timely file a written motion to reconsider sentence
or to orally urge any specific ground for reconsideration at sentencing
precludes a defendant from objecting to the sentence imposed. State v.
Moore, 98–1423 (La.App. 3 Cir. 3/3/99); 734 So.2d 706. See also State
v. King, 95–344 (La.App. 3 Cir. 10/4/95); 663 So.2d 307, writ denied,
95–2664 (La.3/15/96); 669 So.2d 433. La.Code Crim.P. art. 881.1
(emphasis added) serves as the basis for this restriction and provides,
in pertinent part:
35

A. (1) Within thirty days following the imposition
of sentence or within such longer period as the trial court
may set at sentence, the state or the defendant may make
or file a motion to reconsider sentence.

(2) The motion shall be oral at the time of
sentencing or in writing thereafter and shall set forth the
specific grounds on which the motion is based.

....

D. Failure to make or file a motion to reconsider
sentence or to include a specific ground upon which a
motion to reconsider sentence may be based, including a
claim of excessiveness, shall preclude the state or the
defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal
or review.

In cases where courts have held that an oral objection alone is
sufficient to preserve the issue for review, the oral objection contained
the basis for the motion, such as excessiveness of sentence. See State v.
Caldwell, 620 So.2d 859 (La.1993); State v. Trahan, 98–1442 (La.App.
4 Cir. 12/1/99); 752 So.2d 921. Therefore, since Defendant’s oral
motion did not set forth any specific grounds to support his claim of
excessive sentences, we are relegated to a bare claim of excessiveness.
State v. Mims, 619 So.2d 1059 (La.1993), after remand, 626 So.2d 856
(La.App. 2 Cir.1993), writ denied, 93–2933 (La.2/11/94); 634 So.2d
373.

Because defense counsel entered a general objection in this matter, this court’s

review is relegated to a bare claim of excessiveness.

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99–192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00–0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95–2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
36

Id. at 1042-43 (alteration in original).

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061.

As for the nature of the offense, Defendant contends that because J.R. testified

he did not place or hold her down in the hot water, the nature of the crime did not

warrant a sentence of five years. Defendant’s assertion ignores J.R.’s statement to

Detective Reed that Defendant put hot water on her back and leaned her against the

hot water, and the testimonies of Dr. Wood and nurse Martin.

Regarding the circumstances of the offender, Defendant asserts he had no

prior convictions and was a model citizen and father. Defendant alleges he remained

out on bail during the four years it took to proceed to trial and had no subsequent

arrests or violations. Thus, he has demonstrated his ability to be rehabilitated.

Defendant further points out he was a doting and involved father and husband and

worked hard to provide for his family. He further asserts he expressed remorse for

what J.R. has gone through.

Defendant declares a review of sentences in other second degree cruelty cases

is not particularly helpful, as those cases generally involve prior convictions,

continued abuse or neglect, and death. Defendant’s assertion is correct. However,

in State v. Conway, 50,596 (La.App. 2 Cir. 5/18/16), 196 So.3d 635, the defendant’s

two-year-old daughter suffered second and third degree burns to both legs and a cut

over her left eye. The child also had other injuries to her liver, face, and head. When

questioned, the defendant stated that two nights before, she had run some water in

37

the bathtub, and without checking the temperature of the water, she put the child in

the bathtub. When she realized the water was too hot, she took the child out of the

bathtub, and the child slipped and hit the side of her head on the toilet, causing a cut

above her left eye. Although the defendant initially stated that she took the child to

the hospital for medical treatment, the defendant later admitted that she did not take

her to the hospital and claimed that she treated the burns herself. The defendant

entered a plea to second degree cruelty to juveniles with a sentencing cap of twenty

years at hard labor. The remaining charge of second degree battery was dismissed.

The court sentenced the twenty-five-year-old first offender to fifteen years at hard

labor. Considering the facts of the case and the benefit received from the plea

bargain, the second circuit affirmed the defendant’s sentence.

Second degree cruelty to juveniles was enacted in by 1999 La. Acts No. 191,

§ 1. Prior to that time, such acts as that committed by Defendant could have been

charged as cruelty to juveniles, which is punishable by a fine of not more than one

thousand dollars or imprisonment with or without hard labor for not more than ten

years, or both. La.R.S. 14:93.4 We will now address excessive sentence claims for

burns charged under La.R.S. 14:93, which may be helpful to this excessive sentence

analysis despite the fact that the sentencing rage differs from that of La.R.S.

14:93.2.3.

In State v. Stevens, 532 So.2d 197 (La.App. 3 Cir. 1988), writ denied, 541

So.2d 852 (La.1989), the defendant, who was the father of the three-year-old victim,

4
The pertinent portion of La.R.S. 14:93 provides:

A. Cruelty to juveniles is:

(1) The intentional or criminally negligent mistreatment or neglect by
anyone seventeen years of age or older of any child under the age of seventeen
whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge
of the child’s age shall not be a defense[.]
38

was sentenced to five years at hard labor after being convicted of two counts of

cruelty to juveniles, with both sentences to run concurrently. His convictions arose

because he had placed his child in bath water he knew was too hot as punishment

for the child having soiled her clothes. Fifteen to thirty seconds in the water resulted

in second and third degree burns to the child, which he did not seek treatment for

until four days later. There were other prior acts of abuse. This court found the

sentences were not excessive.

In State v. Morrison, 582 So.2d 295 (La.App. 1 Cir. 1991), the defendant was

convicted of cruelty to juveniles for burning a three-year-old child with hot

bathwater, inflicting second and third-degree burns over approximately thirty

percent of the child’s body, because the child soiled his clothing. The first circuit

affirmed the first offender’s nine-year sentence.

Based on the circumstances of the offense and the cases cited herein, we

cannot say the trial court abused its discretion in sentencing Defendant five years at

hard labor. Thus, this assignment of error lacks merit.

DECREE

Defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

39