Opinion
2017 KA 0426
09-15-2017
STATE OF LOUISIANA v. ASHLEY COGAR
Richard J. Ward, Jr. District Attorney Port Allen, Louisiana Chad A. Aguillard Assistant District Attorney New Roads, Louisiana Antonio M. "Tony" Clayton Assistant District Attorney Port Allen, Louisiana Counsel for Appellee State of Louisiana C. Jerome D'Aquila New Roads, Louisiana Counsel for Defendant-Appellant Ashley Cogar
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT
NUMBER 79,435, DIVISION B, PARISH OF POINTE COUPEE
STATE OF LOUISIANA HONORABLE EDWARD J. GAIDRY, JUDGE PRO TEMPORE Richard J. Ward, Jr.
District Attorney
Port Allen, Louisiana Chad A. Aguillard
Assistant District Attorney
New Roads, Louisiana Antonio M. "Tony" Clayton
Assistant District Attorney
Port Allen, Louisiana Counsel for Appellee
State of Louisiana C. Jerome D'Aquila
New Roads, Louisiana Counsel for Defendant-Appellant
Ashley Cogar BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
Disposition: CONVICTION AND SENTENCE AFFIRMED.
CHUTZ, J.
The defendant, Ashley Cogar, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. After a bench trial, she was found guilty as charged. The trial court denied the defendant's motion for postverdict judgment of acquittal. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, raising five assignments of error challenging the sufficiency of the evidence, the admission of expert testimony, and the constitutionality of the sentence. For the following reasons, we affirm the conviction and sentence.
The defendant was charged and tried together with her husband and codefendant, Jason M. Lutz. They filed a joint motion to waive jury trial, which was granted by the trial court. The codefendant was likewise found guilty of second degree murder, as charged, and he has also filed an appeal with this court. See State v. Lutz, 2017-0425.
STATEMENT OF FACTS
On January 28, 2014, at 8:19 p.m., the 911 center of the Pointe Coupee Sheriff's Office (PCSO), received a call from a female reporting an unresponsive infant. PCSO Detective Joshua Adams, who was patrolling frozen roads at the time, responded to the scene at Patin Dyke Road, the residence of Ashley Cogar (the defendant), Jason Lutz (the codefendant), Joseph Lutz (the unresponsive infant and victim herein), and three other young children. Detective Adams noted that the residence was very dirty. He further noted that drug paraphernalia was in plain sight, including many small corner baggies with white residue, and little straws on the counters, on the floor in the room with the baby, in the bathroom, and "just everywhere."
Though they were not considered suspects at the time, Detective Adams advised the defendant and Lutz of their rights before asking them to write a statement regarding what took place that day. In the defendant's written statement, she stated that she checked on the victim around 4:30 to 5:00 p.m., before she and the codefendant went to the store, at which point the victim appeared to be fine. When they returned around an hour later, she fed her daughters and then went to get the victim to feed him. When she moved the victim's blanket, he did not move. She picked him up and turned him over and noticed that he was not breathing and his blanket was stuck to the right side of his face. She removed the blanket and screamed for the codefendant, who ran for help. Neither the defendant nor the codefendant made any statements indicating that they tried to feed the victim at anytime between a 6:00 a.m. feeding and the point he was discovered that evening no longer breathing. The codefendant's written statement was consistent with the defendant's written statement.
PCSO Detective Robert Roy was assigned to the case and dispatched to the scene. Detective Roy received consent to search the residence from the defendant and a consent form was executed. He worked his way to the back bedroom where the victim was located, taking photographs of the victim and the surrounding scene, including a soiled diaper on the floor near cut pieces of straws and other drug paraphernalia such as plastic baggies, pills, and a metal pipe with suspected marijuana residue.
After the victim and the crime scene were observed, the defendant and codefendant were transported to the Sheriff's Office and separately interviewed. The defendant and codefendant were each advised of their Miranda rights, waiver of rights forms were executed, and each provided an interview. The defendant's account of the circumstances was consistent with her written statement. She indicated that the victim normally wakes up at 6:00 a.m., at which point she tries to feed him four ounces. She claimed that the victim was a "slow eater," noting that she fed the victim four ounces of milk around 6:00 a.m. on the day in question, before laying him back down in the middle of his crib at about 7:15 a.m., and going back to sleep because she was tired. She indicated that the codefendant would usually check on the victim if he woke up while she was sleeping, and that they would take turns checking on the victim. The defendant woke up around 10:30 a.m., and the victim was still asleep at the time. The defendant checked on the victim at about 1:30 p.m., when she went into the bedroom to change clothes. At that point the victim moved around but remained asleep. The defendant relaxed for awhile before deciding to go to the store with the codefendant to get food around 4:30 or 5:00 p.m. She and the codefendant asked her roommate, Natasha Garcia (referred to as Tasha), to keep an eye on the children while they went to the store. She further noted that she checked on the victim just before leaving, and he twitched when she made a noise, but was "fine." She later reiterated that she saw the victim's blanket move at that time.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).
When they returned, the defendant asked Tasha if the victim woke up while they were gone, to which she responded negatively. The defendant proceeded to cook dinner for her daughters before checking on the victim that night. The defendant noted that she had laid the victim down on his stomach, but that he had rolled to the side of the bed, further noting that he would often roll to the side after being laid in the middle of the bed. The victim was unresponsive when she moved the blanket, at which point she realized that he was not breathing.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, the defendant argues there was insufficient evidence to prove cruelty to a juvenile as every reasonable hypothesis of innocence was not excluded. The defendant specifically argues that the record is absent of any direct evidence of irregular feeding or that proper nutrition was neglected. The defendant contends that, as a forensic pathologist, the totality of the job of Dr. Cameron Snider, the state's expert, is to find an unnatural cause of death. The defendant further argues that Dr. Snider's conclusion that the victim's death was a result of a lack of feeding was the result of him regarding all the irregularities and abnormalities that he found when performing tests on the victim as a mere coincident or error in testing. The defendant claims that those same irregularities and abnormalities were in accord with the finding of her expert, Dr. Olivier Thelin, that the victim suffered from adrenal hypoplasia.
In assignment of error number two, the defendant argues that the State did not present any evidence to show that the victim was subjected to unjustifiable pain or suffering due to intentional mistreatment or neglect. The defendant contends that Dr. Thelin is more qualified to give an opinion on this issue than Dr. Snider, a pathologist who does not treat live patients. The defendant argues that the expert opinion of Dr. Thelin that the victim suffered from adrenal hypoplasia causing his inability to gain weight, the substantial amount of food present in the home, the lack of intentional withholding of food, and the absence of any evidence of inadequate feeding on the part of the defendant amounted to more than just a reasonable hypothesis of innocence that could not be excluded.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Jones, 596 So.2d 1360, 1369 (La. App. 1st Cir.), writ denied, 598 So.2d 373 (La. 1992). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).
La. R.S. 14:30.1(A)(2) defines second degree murder, in pertinent part, as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of cruelty to juveniles. This section of La. R.S. 14:30.1 contains the circumstances under which a defendant can be found guilty under the felony murder rule, which dispenses with the necessity of proving mens rea accompanying a homicide—the underlying felony supplies the culpable mental state. State v. Small, 2011-2796 (La. 10/16/12), 100 So.3d 797, 805. The underlying felony that the defendant was found to have committed, cruelty to juveniles, is defined in La. R.S. 14:93(A)(1) as 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." The term "intentional" as used in La. R.S. 14:93 refers to general criminal intent to mistreat or neglect and does not require an intent to cause the child unjustifiable pain and suffering. State v. Duncan, 2002-0509 (La. App. 1st Cir. 9/27/02), 835 So.2d 623, 629, writ denied, 2003-0600 (La. 3/12/04), 869 So.2d 812; State v. Morrison, 582 So.2d 295, 302 (La. App. 1st Cir. 1991). "Mistreatment" as used in this statute is equated with "abuse." State v. Comeaux, 319 So.2d 897, 899 (La. 1975).
Pursuant to La. R.S. 14:12, criminal negligence, the requisite mental state for a crime of cruelty to juveniles, is 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.Thus, in order for the State to prove the defendant was guilty of the second degree murder where the killing occurred during the perpetration of cruelty to a juvenile, it had to establish either that (1) the defendant intentionally mistreated or neglected the victim, resulting in the infliction of unjustifiable pain or suffering, and, ultimately, death; or (2) that the defendant was criminally negligent in his mistreatment or neglect of the victim, causing the infliction of unjustifiable pain or suffering, and finally, his death. Duncan, 835 So.2d at 629.
Dr. Allyson Boudreaux, an obstetrician and gynecologist qualified to deliver babies and examine prenatal babies, delivered the victim on October 14, 2013, at Woman's Hospital in Baton Rouge. Dr. Boudreaux noted that her records show that the defendant was twenty-four weeks pregnant at her first visit for the pregnancy with the victim. Confirming that she delivers about 200 babies a year, Dr. Boudreaux noted that most women come in for prenatal care at seven to eight weeks pregnant, with twelve weeks being the extreme. Dr. Boudreaux recalled that the defendant was an atypical patient, noting that she missed several appointments, which resulted in significant gaps in between her handful of visits. For example, the defendant's first visit took place on July 1, 2013, and her subsequent visit took place two months later on August 30, 2013, though the doctor would typically see a patient once a month at that stage of pregnancy. Dr. Boudreaux noted that during the gap between the visits, the defendant missed an appointment for lab work required to be performed at twenty-eight weeks regarding gestational diabetes of which the defendant was diagnosed. The doctor's notes further indicated that the defendant informed the doctor that she had "transportation issues" when questioned about the missed appointments. However, the defendant selected "yes" on a form in her records which specifically asked if she had transportation. The defendant was further diagnosed with Group B Streptococcus (Strep), a bacteria that normally lives on the skin and can cause meningitis, pneumonia, and sepsis in newborn babies.
Dr. Boudreaux was accepted as an expert in obstetrics and gynecology without objection. Dr. Boudreaux also delivered the defendant's previous baby.
The defendant also confirmed that she smoked or used tobacco everyday.
After the August 30 visit, the defendant returned on September 13, 2013, and at that point, Dr. Boudreaux prescribed glyburide for the gestational diabetes. When the defendant returned on October 11, 2013, at thirty-nine weeks pregnant, she was dilated and her blood pressure was elevated. Further, according to the doctor's notes the victim had not been taking the medication as prescribed, but indicated that she altered her diet as instructed. Dr. Boudreaux sent the defendant for delivery and induction of labor on that date due to noncompliance (with the medication prescription and scheduled office visits) and elevation in blood pressure. The victim was delivered three days later at seven pounds and eight ounces, a normal weight. Due to her status as a carrier or suspected carrier of Group B Strep, the defendant was treated with antibiotics during labor and the victim was required to stay hospitalized for forty-eight hours before discharge.
Dr. Boudreaux testified that in accordance with protocol, a head-to-toe examination of the victim would have been performed at delivery, including a suck and swallow examination, and testing for various genetic issues. Dr. Boudreaux noted that abnormalities would have been reported to the pediatrician and that she was not aware of any abnormality. Dr. Boudreaux confirmed that the antibiotics taken by the defendant would not affect the results of newborn metabolic screening. She further noted that pediatricians and the hospital nursing staff ensure that the baby is eating well and making wet diapers and dirty diapers as a part of their ongoing assessment of a newborn baby in the hospital. A baby would not be sent home if there was any concern about the baby being able to feed appropriately. In this case, the doctor was unaware of any problems in the discharge of the victim.
Dr. Boudreaux viewed a photograph of the victim at birth and confirmed that he appeared to be a normal newborn baby in the photograph. Per her treatment, the doctor did not identify any medical problems that would have prevented the victim from desiring to eat. After the doctor was further shown photographs of the victim at the time of his death, she confirmed that the photographs were indicative of a baby under severe malnutrition and constituted clear evidence of neglect. Dr. Boudreaux confirmed that the pictures alone did not provide the cause of the malnutrition with any medical certainty. Although Dr. Boudreaux opined that malnutrition is caused by someone not feeding a child, she conceded that not feeding a child is not the only cause of malnutrition. Dr. Boudreaux reiterated that the victim was a normal, healthy child at birth. She confirmed that Group B Strep would "absolutely not" affect the victim's desire to eat, reiterating that in this case the mother was treated appropriately so there would be no issue related to the condition.
We note that Dr. Boudreaux was allowed to answer these questions over defense objection as to her qualifications. The admissibility of the testimony will be addressed in the context of the assignment of error raised in that regard herein.
During her recorded and transcribed interview, the defendant admitted that there was no heat in the children's bedrooms, though other parts of the house had heat, and that one of the girls did not have a blanket, explaining, "[s]ome idiot screwed up my heater." When asked about the health and condition of the victim, the defendant stated, "He can't gain weight. He can't. For some reason. I don't know why." She added, "I feed him all the time." She confirmed that the victim had not gained any significant amount of weight since birth.
When asked why she had not fed the victim all day on the day he died, the defendant stated, "It was my mistake for not getting him up because I knew I should have gotten him up to feed him. That's on me. I know that. I know." When asked how many ounces she was supposed to feed the victim daily, she stated, "[f]our ounces." She later indicated she misunderstood the question and that four ounces was the amount she would place in one bottle, not the total amount she fed the victim daily. The defendant was also questioned about the dirty diapers laying all over the baby's crib, and stated, "That was my fault. I was going to pick those up. That's on me. That's on me." When asked about the drugs in the house, the defendant indicated that the codefendant had a drug problem and was taking Suboxone to help him get rid of the problem. She denied that she routinely slept all day and indicated that she took care of her children. When asked about the condition of the victim's skin, specifically about his skin receding off of his bones and muscles, the defendant claimed that the victim's skin was in that condition from birth, adding that she could not believe how skinny he was at birth, noting that he would eat a significant amount but would not gain weight.
The defendant admitted that she was overwhelmed with the children, noting that they would constantly scream at her, and conceded she sometimes had too much going on with the other children and did not have time to check on the victim. When asked if she thought that might have caused the victim to die, she stated, "[p]robably." When asked what she would change or do differently if she could, she replied, "I would have fed him more." She added that she did feed the victim more often at one point, but when he kept spitting it up, she decreased the amount she fed him and he seemed to be doing fine.
Monica McDaniels, the manager of the Louisiana WIC program (a special supplemental nutrition program for women, infants, and children), testified that the defendant and codefendant never applied for assistance for the victim based on the program's records. She further testified that she could not provide any information regarding their need for assistance, if any.
During his interview, the codefendant admitted he had a drug problem and stated that the defendant normally took care of the children, including the victim. The codefendant stated, to the best of his knowledge, the last time he knew with one hundred percent certainty that the victim was alive was when he saw the defendant feeding the victim that morning. When asked if the victim was alive when he and the defendant left to go to the store, the codefendant stated that he checked on the victim before leaving and he appeared to be breathing. However, he added that he did not touch the victim or his blanket at that time and suggested that the heater motor blowing on the blanket could perhaps have made it appear as though the victim was breathing. He stated that the defendant would usually check on the victim, though he would do so when he was at home. When asked about the extent of his drug problem, the codefendant stated that he took one or two "roxys" a day or Lortabs, which he snorted, and smoked weed. The codefendant admitted that he had concerns about the victim's diet, noting that they had been feeding him more. He stated that the defendant was the main caregiver, as he was only there half of the day or less. The codefendant stated that the victim had trouble breathing but was not diagnosed in that regard, contending that they informed the doctor of his condition.
Dr. Carl McLemore, Jr., a family physician who has been treating babies daily since 1978 at his practice in New Roads, was accepted by the trial court as an expert in family medicine. Dr. McLemore noted that he first saw the victim on November 21, 2013, with the indicated reason for the visit being the defendant's concern regarding the victim's stuffy nose and difficulty breathing. A respirator rate exam performed that day indicated that the victim was breathing at a normal rate. A very slight weight increase since the victim's date of birth was noted, specifically from a weight of 7 pounds and 7.9 ounces at birth, to a weight of 7 pounds and 8.3 ounces at the time of the appointment, over one month after the victim's birth. In the history provided by the defendant, she indicated that she did not smoke during pregnancy or use tobacco. The defendant further indicated that she was feeding the victim three ounces of formula every three to four hours, no difficulty feeding was reported, and the defendant indicated that the victim was having a bowel movement four to five times a day. The examination notes indicate that the victim was a healthy five-week-old male infant. The doctor noted his impression that the victim had not gained any weight and instructed the defendant to feed him every three hours and to bring him back in two weeks for a recheck of his weight.
The defendant returned with the victim about two weeks later on December 2, 2013 (noted as returned due to concerns with weight gain), at seven weeks old, at which point his weight was 7 pounds and 7.2 ounces, nearly the same as the previous visit. The visit notes further state that the defendant had gone to WIC as previously suggested by the doctor, and that the victim was being fed every four hours, taking three ounces. The victim was alert and had a normal suck from a bottle. The doctor observed that the victim had not gained any weight and instructed the defendant that the child needed to be fed every three hours 24/7 and to bring the victim back in one week.
The defendant did not return with the victim in a week as instructed, or at any point after the December 2, 2013 visit, which Dr. McLemore perceived as neglect assuming that the victim was not seen elsewhere. Another missed appointment occurred on December 23, 2013. In addition to the appointments missed in December, it was noted that appointments were previously missed on November 13, 2013, and November 18, 2013. The doctor did not note or observe any condition that would have affected the victim's desire to eat or ability to process food. Further, the defendant did not indicate that the victim lacked an appetite or the desire to eat.
Ty Chaney, a paramedic for Acadian Ambulance Service and the certified, lead investigator of sudden unexpected infant deaths for the Pointe Coupee Coroner's Office, conducted the investigation in this case. During his interview of the defendant, she indicated that at around 6:00 a.m. that morning she fed the victim. She laid him down on his stomach in a crib at around 7:15 a.m., which was further noted as the last time that the defendant knew the victim was alive. She did not check on him until after 8:00 p.m., when he was found dead, lying on his back with slight foam from the mouth. The defendant responded negatively as to whether any member of the household attempted CPR. She further responded negatively as to whether the victim had abnormal growth or weight gain, apnea (breathing issues), or any birth defect.
Natasha Garcia was living with the defendant and codefendant from the time of the victim's birth, until the time of his death. Garcia had a drug problem during that time period. She further confirmed that the codefendant had a drug problem as well, but denied that the defendant had a problem with drug use. She, the codefendant, and a boyfriend, who was also living there, would look for work to make money to buy drugs and routinely "get high" on "[p]ills, weed ... [and] [s]ometimes coke." The pills consisted of Lortabs, Oxycodone, and Oxycontin. Garcia testified that the codefendant was often away from home and that the defendant was overwhelmed with the children. She noticed that the victim began looking different around a month after birth, such that it caused some concern. She recalled the defendant stating that the doctor instructed her to feed the victim on demand, every three hours and whenever he was hungry. She noted that the defendant repeatedly rescheduled the victim's subsequent appointments. She stated that the victim was noticeably sick and when she questioned the defendant about the missed appointments, she would give reasons such as a lack of gas for her vehicle or the codefendant being at work. When asked how she knew something was wrong with the victim, she stated, "Because of how he looked. He wasn't gaining weight. He was sleeping a lot. He wasn't eating, you know, obviously."
Garcia noted that the defendant and codefendant had irregular sleeping habits and would sometimes stay up until 4:00 or 5:00 a.m., and stay in bed until the afternoon. She further noted that the girls would sometimes knock on her door to ask for food or something to drink. Garcia also had to bathe the children at times. When asked if she ever saw the defendant feed the victim, she stated that she could only count a handful of times she saw feedings, but noted she was often not there and that when she was there, the victim was often in the back room, presumably sleeping. She confirmed that the defendant had expressed concerns to her about the victim's breathing.
Garcia recalled that a few hours before the discovery of the victim's unresponsive body, the defendant asked her to watch the victim and his siblings while the defendant and the codefendant went to the store. The codefendant told her that he had just laid the victim down and had checked on him. Garcia remained in her room while they were gone for approximately an hour. She did not go into the back room to check on the victim, though she had an audio baby monitor that would allow her to hear him if woke up.
Dr. Cameron Snider, an associate medical examiner for the First Judicial District of Florida and an expert in pathology, performed the autopsy of the victim's body on January 31, 2014, while he was the chief forensic pathologist in Baton Rouge. In reviewing the photographs of the victim, Dr. Snider noted that the victim was very small for his age, very malnourished, and dehydrated. His lips were discolored and dry from dehydration and the lack of supporting tissue or fat, the body tissues over his bones were sunken, his cheeks and eyes were sunken inward, the markings of his ribs were visible, and he had crease marks and wrinkles on his neck, also caused by dehydration, and some increase of the thickness of the skin called "scale crust" caused by a lack of daily cleaning. Further, Dr. Snider's autopsy report further noted oral mucosa and/or tongue dryness, additional manifestations of dehydration or lack of proper food. The victim did not have a bulging prominent type of head, and the supporting tissues under his skin were decreased into attenuation, which means there was thinning of the tissues, from head to toe. The victim did not have any bruises, cuts, or scrapes or any other indication of inflicted or accidental injuries. The victim's organs were also small in size and decreased in weight from poor nutrition. The victim's trachea and intra-pulmonary bronchi were unobstructed, and his stomach contained two millimeters of fluid consistent with baby formula.
Based on the material in his intestinal tract, the doctor concluded that the victim had been fed earlier in the day, but not closer to the time of his death. The lack of yellow fat on external surfaces indicated that the fat was being utilized by the victim to preserve life due to a lack of proper nutrition or energy coming into the body. Based on all of his testing, Dr. Snider concluded that the victim's cause of death was marasmus and dehydration, due to "under nutrition." In Dr. Snider's opinion, presupposing that proper nutrition was not given to the victim, the manner of death was homicide. He further stated, "this is not a natural death because the infant had a problem with its own enzymes and stuff." When asked if the victim suffered, Dr. Snider responded, "yes," providing the following reasons:
Merriam-Webster's Dictionary defines "marasmus" as "a condition of chronic undernourishment occurring especially in children and usually caused by a diet deficient in calories and proteins." Merriam-Webster Online Dictionary. http://www.merriam-webster.com. --------
When a child is hungry or thirsty, it has the sensation it wants to eat. We all know what hunger and thirst is, the stomach rumbles and we can eat. This child was just not only hungry or thirsty, this went beyond that for this child. The child was starting to use its own body tissue, its fat, and its skeletal muscle to try to keep the blood vessels filled with the nutrients to keep the blood warm. So the child was metabolizing its own body tissues, so everything was becoming smaller in the child. The child just wasn't hungry, it was losing weight.
Dr. Snider requested that Dr. Zhenggang Xiong perform an autopsy of the victim's brain to determine if there were any abnormalities. Dr. Xiong, an expert in neuropathology, his area of specialization, conducted autopsies of brains on an almost daily basis. As a result of his autopsy of the victim's brain, Dr. Xiong found two abnormalities, diffuse cerebral edema (abnormal accumulation of water in the brain) and hippocampal malformation (a rare congenital condition associated with epilepsy and resulting seizures). Causes of edema include malnutrition or lack of oxygen. Based on the information received from Dr. Snider, Dr. Xiong concluded that the edema in this case was caused by the malnutrition. While subsequently conceding that it was outside his area of expertise, Dr. Xiong responded negatively when asked if his practice or research showed that hippocampal malformation could cause the lack of a desire to eat or loss of appetite.
Dr. Olivier Thelin, certified in pediatrics and neonatology, reviewed the autopsy report in this case. In addition to that report, Dr. Thelin received the complete inventory of the autopsy, the autopsy photographs, the brain autopsy from Dr. Xiong, the chart from Dr. McLemore, and records from Woman's Hospital. In reviewing the autopsy, Dr. Thelin searched for an explanation as to why the victim was not growing. Considering the autopsy and the weight of the adrenal, he suspected adrenal hypoplasia. Dr. Thelin further testified, "And if the baby is not able to make Cortisol and aldosterone, he could be lacking some hormone and he could be weak and he could have difficulty feeding." He testified that if the victim had this disease, it could be a good explanation for why he was not growing and failing to thrive. When asked about his conclusion regarding the disease, he stated, "I suspect but I have no proof that he could have had adrenal hypoplasia," adding that this possibility was never investigated. Therefore, Dr. Thelin indicated that his comments were based on his suspicion of a diagnosis.
Dr. Snider was recalled by the state on rebuttal in response to Dr. Thelin's testimony. Dr. Snider noted that as a pathologist, he spent five years of training to diagnose different diseases. He stated that the interstitium, the supporting tissue of the adrenal gland, was small because the child was not being fed. He further stated that the adrenal glandular tissue was fine, which was inconsistent with adrenal cortical hypoplasia. He stated that he was one hundred percent certain that the victim did not have hypoplasia, also known as Addison's disease, and that the victim died from a lack of nutrition.
Gail Seaman, the defendant's mother, described the defendant as a generous, loving mother who spent a lot of time with her children, often baking cookies and cakes. She noted that she had concerns about the defendant being overwhelmed, further noting that the defendant was often alone with the four children. She stated that after the victim was born, the defendant expressed concerns about him having trouble eating, breathing issues, and the lack of weight gain. She noted that there was an abundance of food in the house when the victim died. The day after the victim's death, Seaman took photographs of the food that was in the refrigerator and pantry at the time.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). Where 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. Richardson, 459 So.2d at 38. 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.
In Small, the Louisiana Supreme Court reversed the defendant's conviction for second degree felony murder based on the underlying felony of cruelty to juveniles. Small, 100 So.3d at 799. The defendant, a mother of two children, aged six and seven years old, left her sleeping children alone and unsupervised in their apartment in the late evening while she went out to drink alcohol at a friend's home. While the defendant was away, a fire started in the apartment. One of the children was unable to escape the apartment and had stopped breathing by the time she was discovered by firemen. She later died as a result of smoke inhalation. Small, 100 So.3d at 800-01. The State argued the defendant was guilty of second degree felony murder, having committed the underlying felony of cruelty to juveniles. At trial, as proof of a history of criminally negligent behavior and cruelty to juveniles by the defendant, the State presented evidence that she had previously pled guilty to criminal abandonment in connection with the lack of supervision of her children. Small, 100 So.3d at 802. At the conclusion of trial, the jury convicted the defendant of second degree murder on the predicate offense of cruelty to juveniles. The Second Circuit Court of Appeal affirmed the defendant's conviction. Small, 100 So.3d at 803. The Louisiana Supreme Court granted the defendant's writ application to determine whether the criminally negligent act of lack of supervision, and not a direct act causing the child's death, could support a second degree murder conviction. Small, 100 So.3d at 805.
In reversing the defendant's conviction, the Louisiana Supreme Court explained that second degree felony murder is a "crime of violence," which is defined in La. R.S. 14:2(B) as "an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used ..." Small, 100 So.3d at 809. While acknowledging that cruelty to juveniles can take many forms that include physical force and direct acts of abuse, the Court reasoned, "neglect in the form of lack of supervision simply cannot supply the direct act of killing needed for a second degree felony murder conviction." Small, 100 So.3d at 810. As the Court further explained, "An interpretation of the felony murder statute to allow a second degree murder conviction anytime a parent is criminally negligent in failing to supervise her child and the child dies as a result of some intervening act would be contrary to the rule of lenity and could result in unintended consequences." Small, 100 So.3d at 811 (emphasis added). The Court ultimately reversed the defendant's conviction and sentence for second degree murder but remanded the case for resentencing on a conviction of negligent homicide.
In this case, the evidence supports the finding of the trier of fact that the victim died as a result of the defendant's acts of neglect constituting cruelty to a juvenile. Unlike the facts presented in Small, in this case there was no intervening factor that caused the victim's death. Accord State v. Woods, 44,491 (La. App. 2d Cir. 8/19/09), 16 So.3d 1279, writ denied, 2009-2084 (La. 4/9/10), 31 So.3d 380 (parents convicted of second degree murder when five-month infant died of malnutrition). Considering the testimony regarding the victim's condition and lack of proper nutrition and the defendant's own statements regarding her failure to adequately feed the victim, the record supports the trial court's finding of legal causation between the underlying felony, cruelty to juveniles, and the child's death in this case. Just before his death, the victim's life was being sustained by the use of his own fatty tissues. Thus, the record further supports a finding that the criminally negligent mistreatment or neglect by the defendant resulted in unjustifiable pain or suffering caused to the victim.
In reviewing the evidence, we cannot say that the trial court's determination was irrational under the facts and circumstances presented to it. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the trier of fact. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___ (per curiam). After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder. Accordingly, assignments of error numbers one and two lack merit.
EXPERT TESTIMONY
In assignment of error number three, the defendant argues the trial court erred in allowing Dr. Snider to testify as to the victim's suffering and to rebut the testimony of Dr. Thelin. The defendant argues that Dr. Snider is qualified to render an opinion as to cause of death, but not as to manner of death. The defendant contends that there was no knowledge, skill, experience, training, or underlying factual support for Dr. Snider's testimony as to whether the victim suffered. The defendant further argues that the trial court should have excluded Dr. Snider's testimony on rebuttal that the victim did not suffer from congenital adrenal hypoplasia because there were no abnormalities in the tissue. The defendant concludes that the challenged testimony was prejudicial and that its admission was an abuse of discretion.
In assignment of error number four, the defendant complains that Dr. Boudreaux was allowed to testify, over defense objection, out of her area of expertise when questioned as to whether two photographs of the victim taken four days after his death displayed evidence of severe malnutrition. Noting that Dr. Boudreaux's testimony that the victim had been neglected was based solely on looking at the photographs, the defendant contends there was no foundation for the veracity for this testimony. The defendant further contends that Dr. Boudreaux was rendering an opinion on an ultimate issue of fact based on a mere assumption devoid of any facts or reliability.
Relevant evidence is evidence which tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. See La. Code Evid. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. La. Code Evid. art. 403.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. La. Code Evid. art. 702. The Supreme Court has placed limitations on this codal provision in that, "expert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men." State v. Stucke, 419 So.2d 939, 945 (La. 1982). Generally, the test of competency of an expert is the expert's knowledge of the subject about which he is called upon to express an opinion. State v. Ferguson, 2009-1422 (La. App. 4th Cir. 12/15/10), 54 So.3d 152, 166, writ denied, 2011-0135 (La. 6/3/11), 63 So.3d 1008. Courts can also consider whether a witness has previously been qualified as an expert. State v. Craig, 95-2499 (La. 5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). A combination of specialized training, work experience, and practical application of the expert's knowledge can combine to demonstrate that the person is an expert; a person may qualify as an expert based upon experience alone. State v. Jarrell, 2007-1720 (La. App. 1st Cir. 9/12/08), 994 So.2d 620, 633. Trial courts are vested with great discretion in determining the competence of expert witnesses, and rulings on the qualifications of an expert witness will not be disturbed unless there was an abuse of that discretion. Jarrell, 994 So.2d at 633; 1988 Comment (d) to La. Code Evid. art. 702 ("Broad discretion should be accorded the trial judge in his determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert."). Moreover, once an expert has been found qualified, the trier of fact is entitled to assess credibility and accept or reject the opinion of the expert in light of the expert's qualifications and the facts which form the basis of his or her opinion. State v. Lofton, 2008-0747, p. 2 (La. App. 1st Cir. 9/12/08) (unpublished), writ denied, 2008-2661 (La. 5/22/09), 9 So.3d 140. Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. La. Code Evid. art. 704.
In State v. Foret, 628 So.2d 1116, 1123 (La. 1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony that requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 2002-1188 (La. 5/20/03), 846 So.2d 697, 700-01. To assist trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Louisiana Supreme Court suggested the following general observations set forth in Daubert are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. See Chauvin, 846 So.2d at 701. Thus, Louisiana has adopted Daubert's requirement that in order for technical or scientific expert testimony to be admissible under La. Code Evid. art. 702, the scientific evidence must rise to a threshold level of reliability. Chauvin, 846 So.2d at 701; Foret, 628 So.2d at 1123. Daubert's general "gatekeeping" applies not only to testimony based upon scientific knowledge, but also to testimony based on "technical" and "other specialized knowledge." Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181 (La. 2/29/00), 755 So.2d 226 234 The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Kumho Tire, 526 U.S. at 141, 119 S.Ct. at 1171. Rather, the law grants a trial court the same broad latitude when it decides how to determine reliability as it enjoys with respect to its ultimate reliability determinations. Kumho Tire, 526 U.S. at 142, 119 S.Ct. at 1171.
In this case, Dr. Snider confirmed that he is board certified in anatomic forensic pathology and had five years of training in general anatomic pathology and a six-year residency and subspeciality fellowship in forensic pathology. His training and residency took place from 1992 to 1997, while the fellowship took place from 1997 to 1998. His forensic pathology training focused on investigations of sudden unexplained deaths or deaths due to non-natural causes. He has served as a medical examiner in Georgia, Florida, and Louisiana, conducting an average of 225 to 250 autopsies per year. Further, he has previously been qualified on multiple occasions as an expert in forensic and/or anatomic pathology in both Louisiana and Florida. As previously noted, Dr. Snider performed the autopsy on the victim.
Following medical school, Dr. Boudreaux trained for four years in obstetrics and gynecology. She began her private practice in Baton Rouge in 2010 and is board certified. She has served on several hospital committees and is qualified to deliver babies and to examine babies prenatally. She estimated that she delivers 200 babies per year. Dr. Boudreaux performed the delivery of the victim in this case.
We find no abuse of the trial court's broad discretion in its finding that the challenged testimony of both Dr. Snider and Dr. Boudreaux was relevant and admissible. Dr. Snider's testimony as to the cause and manner of the victim's death and as to whether the child suffered was based on his thorough autopsy examination of the victim's body externally and internally. Nor was there any abuse of discretion in the trial court's determination that Dr. Boudreaux was qualified to render an opinion based on the photographs in evidence. Her testimony was not baseless, nor did it constitute an opinion on the ultimate fact as she did not testify that the defendant failed to feed the victim or was guilty of murder in this case, but only that the victim was malnourished. Each of these physicians had specialized knowledge that assisted the trial court in understanding the evidence and determining facts. Further, we find that the probative value of Dr. Snider and Dr. Boudreaux's testimony was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the trier of fact, or by considerations of undue delay or waste of time. Thus, assignments of error numbers three and four lack merit.
CONSTITUTIONALITY OF SENTENCING
In assignment of error number five, the defendant contends that the trial court's denial of the motion for postverdict judgment of acquittal and motion for new trial resulted in the imposition of an unconstitutional sentence. The defendant reiterates her argument that the evidence was insufficient to prove neglect or unreasonable pain or suffering. Citing Small, the defendant further argues that there was no direct act of killing by the defendant and no intent or intentional acts of physical abuse or history of other abuse. The defendant contends that as the State failed to prove beyond a reasonable doubt that the defendant committed cruelty to a juvenile, she was erroneously convicted of second degree murder and sentenced to life imprisonment. The defendant argues that the sentence results in no useful or practical purpose to society and that she is exceptional such that a life sentence in this case is a needless infliction of pain and shocks the sense of justice.
The record before this court does not contain a copy of a motion to reconsider sentence or evidence that the defendant objected to or moved for reconsideration of the sentence. Louisiana Code of Criminal Procedure article 881.1(A)(1) requires a defendant or the State to make or file a motion to reconsider sentence within thirty days of sentencing unless the trial court sets a longer period of time at the time of sentencing. 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. La. Code Crim. P. art. 881.1(E).
As noted, the record before us does not include a motion to reconsider sentence, nor did the defendant enter an objection after the sentence was imposed. To the extent that the defendant is challenging the evidence in support of the conviction, we note that the sufficiency of the evidence has been addressed herein and the record supports the conviction. As the defendant failed to comply with La. Code Crim. P. art. 881.1, she is barred procedurally from having assignment of error number five reviewed. See La. Code Crim. P. art. 881.1(E). See also State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).
CONVICTION AND SENTENCE AFFIRMED.