State v. Merritt, 03-946.

• Citation: 875 So.2d 80
• Decision Date: 17 March 2004
• Docket Number: No. 03-946.,03-946.
• Parties: STATE of Louisiana v. Dillon James MERRITT.
• Court: Court of Appeal of Louisiana — District of US

875 So.2d 80

STATE of Louisiana v. Dillon James MERRITT.

No. 03-946.

Court of Appeal of Louisiana, Third Circuit.

March 17, 2004.

Van Hardin Kyzar, District Attorney, Natchitoches, LA, for Appellee, State of Louisiana.

Phyllis Elaine Mann, Alexandria, LA, for Defendant/Appellant, Dillon James Merritt.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS and ARTHUR J. PLANCHARD¹, Judges.

PLANCHARD, Judge.²

Defendant, Dillon James Merritt, was charged by amended bill of information with four counts of cruelty to juveniles in violation of La.R.S. 14:93. A jury trial commenced on September 17, 2002, and on September 19, 2002, the jury found Defendant guilty as charged on all four counts. On November 18, 2002, Defendant filed a motion for a new trial and a motion for post-verdict judgment of acquittal. The trial court denied the motion for a new trial on November 19, 2002, without written reasons. A hearing on Defendant's motion for post-verdict judgment of acquittal was held on November 27, 2002, at which time the trial court denied the motion. On January 31, 2003, Defendant was sentenced to two years at hard labor each on counts one and four, and seven years at hard labor each on counts two and three. All the sentences were ordered to be served consecutively for a total term of imprisonment of eighteen years at hard labor. Defendant's motion to reconsider the sentences filed on January 31, 2003, was subsequently denied without written reasons. Defendant now appeals his convictions and sentences.

FACTS:

Defendant married the victim's mother, K.R., in May 2001. At the time, the victim, A.R., was two and one-half years old. On July 6, 2001, Defendant, while holding the victim's eyelids open, sprayed hair spray into her eyes, causing corneal abrasions (count #1). Subsequently, on July 14, 2001, the Defendant twisted the victim's left leg in such a manner as to cause a spiral fracture of the lower tibia (count # 2). Then, on August 6, 2001, the Defendant pulled the victim's right arm back in such a manner as to fracture the bone of the upper arm (count # 3). Following the latter two incidents, the Defendant refused to allow the victim to receive medical attention, thereby prolonging her pain and suffering from the injuries (count # 4).

ASSIGNMENTS OF ERROR:

Defendant alleges six assignments of error. In assignments of error numbers one, two, four and five Defendant contends the evidence was insufficient to convict him of cruelty to juveniles as charged in the amended bill of information. Defendant's assignment of error number three alleges the trial court erred when it allowed the admission of certain testimony of a child abuse expert which pertained primarily to the injuries alleged in counts two and three. Finally, in assignment number six, Defendant asserts his sentences are excessive under the circumstances, and that the trial court erred when it ordered the sentences to be served consecutively.

We will address the sufficiency of the evidence first as to each of the four counts; then address whether the trial court erred when it allowed the expert witnesses' testimony and the alleged inadmissible statements' application to the sufficiency of the evidence as it pertains to counts two and three. Finally, we will address Defendant's allegation that the sentences are excessive.

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

Defendant alleges that the evidence was not sufficient to sustain the verdicts of cruelty to a juvenile on each count charged in the amended bill of information, particularly since Defendant was convicted primarily on circumstantial evidence. When sufficiency of the evidence is raised on appeal, this court has held:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, rehearing denied, 444 U.S. 890, 100 S.Ct. 195 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559, at 563 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). The role of the factfinder is to weigh the respective credibility of each witness. Therefore, the appellate court should not second guess the credibility determinations of the factfinder beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ denied, 99-3259 (La.5/5/00), 761 So.2d 541.

Additionally, in State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998), our supreme court stated:

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

See also State v. Rosiere, 488 So.2d 965 (La.1986); State v. Matthews, 464 So.2d 298 (La.1985); and State v. Patterson, 295 So.2d 792 (La.1974).

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

Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child's age shall not be a defense.

The term "intentional" in this case means a general criminal intent to cause a child unjustifiable pain and suffering and "mistreatment" means abuse. State v. Porter, 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115.

The following are the undisputed facts established at trial:

A.R. was born December 18, 1998. A.R. was the second child of J.K.R. and K.R. The couple divorced in May 2001, after being separated for several months. A few days following the divorce proceedings, K.R. married the Defendant, and with her two daughters moved into his house. Prior to K.R.'s marriage to the Defendant, the custody arrangement between the children's father and K.R. was that she had physical custody of the children from Thursday afternoon to Sunday noon and the children's father had physical custody from Sunday noon to Thursday afternoon. There was a provision in the custody agreement that K.R. was not supposed to spend any nights with the Defendant when she had custody of the children. Following her marriage to the Defendant, starting June 2001, the physical custody arrangement of the children was changed so that from the first to the fifteenth of the month, K.R. had physical custody and from the fifteenth to the end of the month, the children's father had physical custody of the girls.

On June 11, 2001, Defendant brought the victim to her mother and told her that A.R. had fallen off her bed and hurt her foot. The child was limping and complained of a hurt foot. The next day, K.R. took A.R. to see Doctor Garland Miller at DeSoto Regional Family Medicine. A.R.'s right ankle was X-rayed but there was no notable injury to the foot. The doctor diagnosed a sprained ankle. On June 16, 2001, after the children went to their father's home, D.R., the paternal grandmother, took A.R. to Natchitoches Parish Hospital because A.R. continued to limp. This time her left foot was X-rayed, but there appeared to be no discernable problem.

On the morning of July 7, 2001, K.R. awoke to find the Defendant in the bathroom rinsing out the victim's eyes. He told her that A.R. had sprayed herself in the face with hair spray. K.R. and Defendant took A.R. to the emergency room at Sabine Medical Center. Because of a long wait, they did not stay, but bought a bottle of Visine to put in her eyes. The next day, because A.R.'s eyes had become so painful and swollen she could not open them, K.R. took her back to Sabine Medical Center where A.R.'s examination revealed corneal abrasions in both eyes.

On the morning of August 6, 2001, the Defendant brought the victim to K.R. and told her A.R. hurt her shoulder when she jumped off her bed. However, he refused to allow K.R. to attend to the child. Later in the morning, K.R. called her mother, Terry Matthews. Ms. Matthews went to the Defendant's house and, after K.R. and the Defendant began to argue, attempted to remove both of the girls from the house. As Ms. Matthews was putting the children in the car the Defendant came out and began to argue with her. Ms. Matthews left without the children. Later in the day, Ms. Matthews called child protection services and the children were removed from the house. A.R. was taken to the Sabine Medical Center Emergency Room where it was discovered that, among other injuries, she had sustained a spiral fracture of the left leg and a fractured right arm.

Count Number 1:

Count number one of the amended bill of information alleged that on July 6, 2001, Defendant caused the victim unjustifiable pain and suffering by spraying hair spray into her eyes. In brief, Defendant argues that the State failed to prove that he sprayed hair spray into A.R.'s eyes. The Defendant contends that the State did not exclude the reasonable hypothesis that A.R. sprayed herself in the face.

The victim's mother, K.R., testified she had physical custody of the children in the first two weeks of July. Upon waking up one morning, she found the Defendant rinsing A.R.'s eyes with...