Opinion
No. 2009 KA 0643.
September 11, 2009.
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT. IN AND FOR THE PARISH OF ST. TAMMANY, LOUISIANA, TRIAL COURT NUMBER 374,851, HONORABLE REGINALD T. BADEAUX, JUDGE.
Walter P. Reed, District Attorney, Covington, LA and Kathryn W. Landry, Baton Rouge, LA, Attorneys for State — Appellee.
Jane L. Beebe, New Orleans, LA, Attorney for Defendant — Appellant John Sylve.
BEFORE: WHIPPLE, HUGHES, AND WELCH, JJ.
The defendant, John Sylve, was charged by grand jury indictment with first degree murder, a violation of La.R.S. 14:30. The State later amended the indictment to charge the defendant with second degree murder, a violation of La.R.S. 14:30.1. The defendant entered a plea of not guilty. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for new trial. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error as to the sufficiency of the evidence. The defendant also requests that this court conduct a review of the record for any error discoverable by a mere inspection of the pleadings and proceedings pursuant to La.C.Cr.P. art. 920. For the following reasons, we affirm the conviction and the sentence.
FACTS
On or about November 20, 2003, at approximately 2:00 a.m., Officer Jacob Swable and Sergeant Lewis N. Sanders of the St. Tammany Parish Sheriff's Office were dispatched to the home of the defendant, John Sylve, and his wife, Sharon Sylve, in Slidell, Louisiana for a medical emergency involving an unresponsive four-year-old boy, Troy August, the victim. An ambulance was also dispatched to the scene. On arrival, Officer Swable noted what appeared to be burn marks down the victim's legs, on top of his feet, and around his knee area. He further noted that the child appeared lifeless. According to Sergeant Sanders, the body was becoming stiff. Sergeant Sanders also noted multiple visible injuries including discoloration around the child's groin area. The victim was in the custody of the defendant and his wife.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant contends that the evidence insupport of the second degree murder conviction is insufficient. The defendant contends that the State failed to prove that he intentionally caused injury to the victim. The defendant notes that he saw burns on the victim's body and his wife begged him not to report it. The defendant concedes that he was negligent and immoral, but argues that his actions after the victim's death point to his lack of specific intent to kill or inflict great bodily harm.
In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). That standard of appellate review, adopted by the legislature in enacting La.C.Cr.P. art. 821, is whether the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Brown, 2003-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). When analyzing circumstantial evidence, La.R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492, p. 5 (La. App. 1st Cir. 2/14/03), 845 So.2d 416, 420. When a case involves circumstantial evidence and the trier of fact 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 that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).
An appellate court is constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact. As the trier of fact, a jury is free to accept or reject, in whole or in part, the testimony of anywitness. Thus, 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. Azema, 633 So.2d 723, 727 (La. App. 1st Cir. 1993), writ denied, 94-0141 (La. 4/29/94), 637 So.2d 460; State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). Moreover, 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. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984).
At the time of the offense, La.R.S. 14:30.1 defined second degree murder as follows:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
* * * *
[(2)](b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm.
At the time of the offense, cruelty to juveniles was defined in La.R.S. 14:93(A) as 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." 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. 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). Criminally negligent mistreatment or neglect of the juvenile occurs where there is such disregard of the interest of the juvenile that the defendant's conductamounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances. See La.R.S. 14:12; Morrison, 582 So.2d at 302.
Thus, in order to convict the defendant of second degree murder where the killing occurred during the perpetration of cruelty to a juvenile, the State was required to prove either that: (1) the defendant intentionally abused or criminally neglected the victim, resulting in the infliction of unjustifiable pain or suffering, and ultimately, death; or (2) that the defendant negligently abused or neglected the victim, causing the infliction of unjustifiable pain or suffering, and finally, his death. See La.R.S. 14:30.1(A)(2)(b).
The emergency dispatch took place during the early morning hours on a Thursday. When Officer Swable arrived at the scene, he observed Sharon Sylve holding the seemingly lifeless victim. The defendant stood behind her in the doorway of the home. Sharon Sylve was screaming and hollering, while the defendant appeared calm. Officer Swable testified that the victim's right eye was partially open, his left eye was closed, and he was clothed solely in a pair of white underwear. Officer Swable began administering CPR before transferring the child to the paramedics. Sharon Sylve said the victim had sat in a tub of hot water. Officer Swable noted that the bottoms of the victim's feet were not burned.
Before the autopsy, the police interviewed the defendant and his wife. The defendant stated that he and his wife were in bed when they heard the victim yell after another child had been instructed to give him a bath. They realized the victim had been burned and attempted to administer first aid to the child. They did not believe the injuries were serious. The defendant's wife provided a consistent statement. The defendant also stated that he and his wife took custody of the victim from a relative to have a playmate for the other child in their care.
Dr. Michael DeFatta, an expert in forensic pathology, performed theautopsy. At the time of the autopsy, the victim was forty-one inches tall and weighed forty pounds. Dr. DeFatta described the victim as thin and noted the victim did not have any food or liquid in his stomach or small bowel. Multiple photographs taken during the autopsy showed that the victim had second and third degree burns on the buttocks and scattered abrasions on his right arm, shoulder, armpit, abdomen, and his legs. The victim had abrasions on the left side of his neck that were curvilinear and a linear abrasion and open laceration on his face. Dr. DeFatta noted that the scrapes and abrasions were consistent with fingernail marks or wounds from being beaten with a slender stick (a "switch"). The time of the infliction of the various injuries on the victim's body ranged from hours to days before the autopsy, as some of the injuries had visible signs of healing. He stated that short of the scars, the recent and healing injuries took place within a five-week period in which the defendant had custody of the child.
The right side of the victim's face had scratch marks, and curvilinear, C-shaped scrapes on the right side of his neck that were indicative of fingernail marks. The back of the victim's left leg and buttocks area had splotchy burned areas. There were burns on the inside of both of his thighs and the entire right buttocks area. Also present in that area was a white substance that appeared to be paint or plaster. More abrasions were scattered within the burned area. The victim had several loop marks on his right arm and from the bottom of his neck to his buttocks, classic injuries that can occur as the result of having been beaten with a twirled chord. Dr. DeFatta stated that the burns on the victim's legs were mainly second degree, but included small areas categorized as third degree burns. Some of the burns may have taken place approximately six days before the autopsy, as the edges of some of the burns were starting to form a yellow, grayish color and had a coating on the surface identified as granulation tissue that is seen when an injury starts to heal. The victim's upper lip had a severe bite mark caused byblunt-force trauma such as being hit in the mouth. His entire lip was busted open and should have been stitched. Yellow and dark discoloration and infection formed because the injury was not treated.
Dr. DeFatta noted that the bottoms of the victim's feet were spared. Dr. DeFatta testified that the victim's injuries were not consistent with immersion burns, which occur when the body is submerged into extremely hot water. He specifically noted that immersion burns are band-like, confluent, and have universal patterns, not splotchy. Dr. DeFatta also noted serious burns on the victim's right knee, along his left ankle, on his right foot, and a section of his right leg with more burns and missing pieces of skin. The victim's right hip had a long area encompassed in a burn with bruising and abraded areas where the skin was broken due to some type of beating with an object. The victim's buttocks had skin missing off of it and portions of his left buttock had stripes and loop marks, and bruising on a burned area. Dr. DeFatta estimated that the injuries to the victim's buttocks causing hemorrhaging (bleeding into the soft tissues) occurred days before the autopsy. The victim's scrotum area and around the legs had more white material and deeper, third degree burns. These injuries were also described as splotchy, not confluent or band-like distribution as caused by immersions of the buttocks. The burns in the penis and scrotal area had become infected. Dr. DeFatta explained that the victim must have had pain and burning during urination and defecation. The victim had bruising on his forehead, a subdural hematoma, significant bleeding between the brain and its covering, and brain swelling, consistent with an injury caused by a blow to the head or for children, during shaking or a rotational type of injury.
Dr. DeFatta testified that the victim needed immediate medical intervention. The subdural hematoma was one of the major causes of the victim's death. The victim's toxicological blood and urine results showed metabolites for breakdownproducts of cocaine and cocaine in its natural form. Assuming that the cocaine was acquired orally (as typically administered to children having cocaine detections), Dr. DeFatta estimated the time of cocaine use was near the time of the victim's death. Dr. DeFatta added that there was no circumstance under which the cocaine could have been consumed more than five weeks before the victim's death. According to the autopsy analysis, twenty percent of the victim's body was burned. The cause and manner of death was battered-child syndrome. Dr. DeFatta explained that battered-child syndrome occurs when a child has undergone undue stress or trauma such that the child has recent injuries at the time of death as well as older, healing injuries. Such children usually have a head injury that could cause bleeding and/or hemorrhage into soft tissue from excessive bruising and beatings ultimately leading to their death. Dr. DeFatta further testified that the cocaine administration was also a significant factor. The victim's death was classified as a homicide.
After the autopsy, the defendant agreed to give another statement to the police, including a recorded statement. The defendant stated that the victim had lived with him for almost five weeks. The other child living in the home was eight years old. The defendant initially repeated his first explanation, but ultimately stated that the burning incident actually occurred on Saturday instead of the Tuesday before the victim died. The defendant stated that he did not initially call for assistance because his wife asked him not to and because he feared losing custody of the other child. The defendant indicated that his wife would beat the victim and that she hit him on the buttocks with a belt and/or switch on and surrounding the burned areas. The defendant stated that he did not know why his wife would beat the victim and referred to him as "innocent" and "sweet." The defendant admitted to whipping the victim on his buttocks, but denied beating the victim after he was burned. He also indicated that he hit the victim's hands. Thedefendant stated that he spanked the victim to try to induce him to cry. The defendant whipped the victim with a switch one time because he wanted to see him cry and tried whipping him in his hand to see if he could make him frown. When asked why he would spank the victim, the defendant stated that the victim "use to do so much" and added that he "did not whoop him for everything he did." The defendant further explained that he whipped the victim for disciplinary reasons. The defendant denied drug usage, but stated that his wife used cocaine and that they both drank beer.
The execution of a search warrant for the defendant's residence resulted in the seizure of a powder-like substance that was located in the master bedroom and later determined to be cocaine. The officer photographed several items including discarded cords, several belts, and towels and bedding that appeared to be bloodstained.
The defendant's trial testimony was essentially consistent with his recorded statement. The defendant testified that his wife was the main caretaker for the children while he worked outside of the home. The defendant further testified that he was getting ready to leave the home when the victim was injured. When he returned, he noticed that the victim's burns were worse than he initially believed. His wife was crying and he felt sorry for her. His wife asked him not to contact a doctor. The defendant denied striking the victim in the head or shaking him. He further stated that he never saw his wife shake the victim. He added that he spanked the children when they needed it, specifying that it was "[n]ot that much" and "on his [the victim's] butt."
On the night of the victim's death, he was sleeping with the defendant and the older child. The defendant's wife was out with friends. Around 1:30 a.m., the defendant noticed that the victim was not breathing. The defendant called his wife who was approximately ten minutes away from their home at the time and told herto call 911. The defendant gave the victim CPR until emergency assistance arrived. The defendant testified that he knew the victim was hurting from the burns and "probably" bleeding.
When viewing the evidence presented at trial in this case in the light most favorable to the prosecution, we are convinced that any rational trier of fact could have concluded beyond a reasonable doubt that all of the elements of the crime of second degree murder were sufficiently proven. The evidence clearly established that the victim was severely abused while in the defendant's care. The four-year-old child was battered, neglected, and deprived of food. The medical testimony at trial clearly indicated that the child's death was due to battered-child syndrome. The medical testimony detailed the existence of fresh or recent abusive wounds and reasonably supports the conclusion that the victim was beaten prior to his death. Viewing all of this evidence, together with the defendant's statements to the investigating detectives and his trial testimony, wherein he admitted that he occasionally and intentionally struck the victim in an attempt to get him to cry, any rational trier of fact could have concluded beyond a reasonable doubt that the defendant's abusive actions contributed, at least in part, to the painful injuries suffered by the victim and leading to his death. Moreover, based upon the defendant's untruthfulness during the investigation of the offense as to when the victim received burn injuries, it would not have been unreasonable for the jury to find that he was not credible. From the defendant's dishonesty, an inference of a "guilty mind" can be drawn. See State v. Mitchell, 99-3342, pp. 10-11 (La. 10/17/00), 772 So.2d 78, 85.
Considering the foregoing, we find that the evidence presented at the trial of this matter clearly supports a finding that the defendant committed cruelty to the victim, a juvenile, which ultimately resulted in his death. For the above reasons, the assignment of error is without merit.
REVIEW FOR ERROR
The defendant asks this court to examine the record for error under La.C.Cr.P. art. 920(2). We routinely review the record for such errors, whether or not such a request is made by a defendant. Under La.C.Cr.P. art. 920(2), our review is limited to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514, pp. 18-22 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
CONCLUSION
For the foregoing reasons, the defendant's conviction and sentence are affirmed.