State v. Booker, 42,596-KA.

• Decision Date: 31 October 2007
• Docket Number: No. 42,596-KA.,42,596-KA.
• Citation: 968 So.2d 1190
• Parties: STATE of Louisiana, Appellee v. Bobby Lee BOOKER, Appellant.
• Court: Court of Appeal of Louisiana — District of US

968 So.2d 1190

STATE of Louisiana, Appellee v. Bobby Lee BOOKER, Appellant.

No. 42,596-KA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 2007.

Sherry Watters, New Orleans, Louisiana Appellate Project, for Appellant.

Paul J. Carmouche, District Attorney, Brady O'Callahan, Dhu Thompson, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.

Before STEWART, GASKINS and CARAWAY, JJ.

CARAWAY, J.

A jury found Bobby Lee Booker guilty as charged of cruelty to the infirmed in violation of La. R.S. 14:93.3. He was sentenced to three years at hard labor and now appeals his conviction and sentence. We affirm.

Facts

In August of 2006, Zenobia Bryant, a retired 95-year-old school teacher, shared her Shreveport home with Booker. Ms. Bryant had "adopted" Booker's mother, who died when he was less than a year old. Ms. Bryant was in her late 70's when she began rearing Booker and referred to him as her grandson.

In the days preceding August 8, 2006, Ms. Bryant was hospitalized for dehydration. She had no other relatives in the area and returned to her home with Booker. Her physician arranged home health care for follow-up treatment. On August 7, 2006, home health care nurses attempted to begin treating Ms. Bryant. No one answered her door. On August 8, 2006, at approximately 3:30 p.m., home health care nurses once again attempted to visit but could not gain entrance into the home.

Upon hearing a faint female voice from inside the home, the home health care nurse contacted Ms. Bryant's physician's office. The physician's certified medical assistant, who had befriended Ms. Bryant and helped her in the past, came to the home in an attempt to get Ms. Bryant to answer the door. When she did not, police and firefighters were dispatched to the scene. Ms. Bryant was discovered unable to get up from her couch, sitting nude in her own waste with roaches crawling on her. She appeared to be incoherent but said she was thirsty and asked for water. She was transported to a hospital and diagnosed with dehydration and malnutrition.

At trial, photographs of the horrible conditions of the home were introduced into evidence. The state also presented the testimony of Shreveport firemen and police who responded and gained entrance into Ms. Bryant's home. The first responders described a home in deplorable condition. They encountered a strong foul smell and a home filled with trash, dirty dishes and clothes strewn around the house. They observed no sheets on the beds and found no fresh food in the house. The room where Ms. Bryant was located had no air conditioning and areas where floorboards were missing created holes in the floor through which small animals could enter and exposed the ground beneath the house. The photographs corroborated this testimony.

During these events, 18-year-old Booker returned home. In a statement to police at the scene, Booker acknowledged that he was the caregiver for his grandmother, he handled all of the bills and was the only person living with Ms. Bryant. He further stated that he and his grandmother had no other family in Shreveport. After his arrest, Booker gave a recorded statement to police and admitted that he paid the bills with Ms. Bryant's money. He asserted that he was doing the best he could and admitted that he needed some help taking care of his grandmother.

Booker was charged by bill of information with cruelty to the infirmed, in violation of La. R.S. 14:93.3. A six-person jury returned a unanimous verdict finding the defendant guilty as charged. Booker's motion for new trial was denied. The trial court found that Booker would be best served by a three-year hard labor sentence and recommended the intensive incarceration program ("IMPACT Program"), also known as boot camp. The defendant was given credit for time served. No motion to reconsider sentence was filed on the defendant's behalf. This appeal followed.

Discussion

In his first assignment of error, Booker argues that the evidence was insufficient to support his conviction. Booker argues that the state failed to prove that he assumed any responsibility for caring for his grandmother, or that he was capable of doing so. He further contends that the state failed to prove that he committed criminally negligent mistreatment or neglect, or that his actions or inactions caused his grandmother any unjustifiable pain, malnourishment or suffering. Rather, Booker contends that the evidence was sufficient to prove only that she was thirsty and possibly "uncomfortable." Booker also argues that the state failed to prove that his remaining in the house where he was reared and with the person who reared him, without any break in the continuity or clear reversal of roles, constituted "assuming voluntary residence," which is another factor used in determining whether a person is a "caregiver" under the statute. Booker concludes that, at most, he committed misdemeanor negligent injury out of ignorance.

Although the record does not reflect that defendant filed a motion for post verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App.2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

When issues are raised on appeal both as to the sufficiency of the evidence and one or more trial errors, the reviewing court first reviews the sufficiency claim. This is because the defendant 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 the evidence is constitutionally insufficient. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in La.C.Cr.P. art. 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir. 9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Lee, 32,272 (La.App.2d Cir.8/18/99), 742 So.2d 651, writ denied, 99-2730 (La.3/17/00), 756 So.2d 326; State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993).

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Barakat, 38,419 (La.App.2d Cir.6/23/04), 877 So.2d 223; State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. To convict a defendant based upon circumstantial evidence, it must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Barakat, supra.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

La. R.S. 14:93.3 provides in pertinent part:

A. Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.

B. "Caregiver" is defined as any person or persons who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult.

C. For the purposes of this Section, an aged person is any individual sixty years of age or older.

La. R.S. 14:12 defines criminal negligence as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

The supreme court in State v. Brenner, 486 So.2d 101 (La.1986), discussed the meaning of neglect or "criminal neglect" with reference to the statute on cruelty to the infirmed:

Here, the word neglect is preceded by "or" and...