State Of Louisiana VS Paul Antoine Dion, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1962 STATE OF LOUISIANA VERSUS PAUL ANTOINE DION JR Judgment f Rendered JUN 1 3 2013 On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Trial Court No 571 510 The Honorable George J Larke Jr Judge Presiding Joseph L Waitz Jr District Attorney Ellen Daigle Doskey Assistant District Attorney Attorneys for Plaintiff Appellee State of Louisiana Houma Louisiana Anthony T Marshall Gonzales Louisiana BEFORE Attorney for Defendant Appellant Paul Antoine Dion Jr PARRO WELCH AND DRAKE JJ DRAKE J The defendant Paul Antoine Dion Jr was charged by grand jury indictment with second degree cruelty to juveniles a violation of La R 14 He pled S 93 3 2 not guilty He waived his right to a jury trial and following a bench trial was found guilty as charged The defendant filed a motion for postverdict judgment of acquittal which was denied The trial court sentenced the defendant to thirty years imprisonment at hard labor The defendant now appeals designating five counseled assignments of error and one pro se assignment of error We affirm the conviction and sentence FACTS Melissa ThibodeauY lived in Thibodaux and worked as a sitter for elderly people Melissa and Doris Dion defendant smother cared for the same lady and it was through Doris that Melissa met the defendant After briefly dating in 2008 the defendant moved in with Melissa in her house in Lafourche Parish At this time the defendant was unemployed Later the defendant began driving trucks for a living Problems developed in the relationship and the defendant moved out sometime in mid Melissa testified at trial that she made the defendant leave 2008 because he had gotten physically abusive with her however off and on They still saw each other In December of 2008 Melissa became pregnant The defendant was the father of the child At forty years old Melissa was happy to one be pregnant She had been married several times and had had several miscarriages The defendant was not pleased with the pregnancy and wanted Melissa to have an abortion which she refused The defendant made several phone calls to Melissa at home while she was pregnant Whether Melissa answered and spoke to the defendant or let the defendant leave a message the s defendant The defendant was also sentenced to six months fox direct contempt of court a charge that azose out of the de absconding from court on the last day of trial and going into hiding s endant The six sentence was ordered to run first and in addition to the thirty sentence month year 2 conversations statements were recorded and those recordings were introduced into evidence and played for the trial court On one occasion the defendant left a message that Melissa was not going to carry that f baby and that something ing was going to happen to Melissa In another message the defendant stated go get an abortion if not Pm gonna get you shot In another message defendant the stated As far as you and that kid I ain I ain t tpaying nothing I don wanna t have no part of you or that child I ain tgiving you child support I tgiving you nothing so I hope you gonna have an abortion I I ain hope something happens to you before you carry that baby too far Okay bye Two weeks prior to S birth the defendant moved back in with Melissa s D Melissa explained at trial that there was no reconciliation between her and the defendant but she wanted the defendant to learn how to take care of his baby Melissa gave birth to a boy S on September 9 2009 S was born healthy D D with no medical problems and the first three months of his development were normal Melissa testified that on Saturday October 31 2009 when S was seven D weeks old he was in the defendant bedroom crying s Melissa took S and D brought him to her bedroom With S still crying the defendant took the baby D put him in his Jeep Cherokee and drove to his mother house in Bourg in s Terrebonne Parish Melissa stated it was freezing outside and the defendant left with S without a blanket formula or child seat Melissa called the police but D they could not help her because the defendant was equally entitled to the custody of his child Melissa and the defendant had never secured a court custody ordered agreement While the defendant kept S at his mother house over the D s Halloween weekend Melissa repeatedly called the defendant to check on S On D Monday the defendant let Melissa come pick up D S in Bourg With the defendant following in his Jeep under the pretense that Melissa would allow the 3 defendant to come back to live with her Melissa brought S to the house of her D parents who lived nearby When Melissa and the defendant went to Melissa s house Melissa told the defendant to take his belongings and leave The next day Melissa went to speak to an attorney about custody of S D Still with no formal court order Melissa the defendant and their attorneys worked out custody of a temporary visitation arrangement D S one day a week and on The defendant was allowed every other weekend On Friday December 11 2009 the defendant picked up three S from Melissa old month D s s mother house for the first agreed overnight visit Melissa testified there upon was nothing wrong with S when the defendant took custody of him that Friday D morning at about 10 a and took him to his mother house where the 00 m s defendant was also living Then on Saturday evening at about 730 p the m defendant called Melissa on the phone and told her that S had vomited when D being fed a bottle Melissa told the defendant Yo bring S to her and the D defendant said he was considering that but it was raining heavily Several minutes later Melissa called the defendant again to check on S The defendant told her D that S leg was shaking Melissa told the defendant to bring S to her or she s D D would come to his mother house with the police With the rain slackening the s defendant agreed to meet Melissa at Nockds a truck stop with a convenience store in Raceland on La Hwy 182 Between 930 p and 10 p the defendant met Melissa at Nockds m 00 m where the defendant gave S to her D D S was crying Melissa testified the defendant told her that he probably would not be seeing S for a long time The D defendant then said he was going to buy a beer which he did at the convenience store According to Melissa the defendant had not drunk since the 1990s and she had never seen him drink a beer Melissa who was with her mother drove back to her mother house and removed S from his car seat S leg and arm were s D s D a shaking his eyes were twitching and his lips were turning blue Melissa called her doctor who told Melissa to bring S to the hospital Melissa brought S to D D Thibodaux Regional Medical Center where S was treated by emergency room D physician Dr Charles Speights Dr Speights testified at trial that S had a low D temperature of 95 degrees and he was twitching all over and arching his back 7 The doctor ordered blood work a chest x and a CT scan of the head The CT ray scan revealed subdural hematoma or bleeding on the brain Upon ruling out several possibilities that might have caused S symptoms Dr Speights felt it s D was clear S was suffering from shaken baby syndrome SBS D D S was transported to Children Hospital which had a pediatric ICU s While S was intubated in intensive care Dr Jamie Jackson a child abuse D pediatrician conducted a comprehensive physical examination on the infant She also consulted with a neurologist and ophthalmologist Dr Jackson testified at trial that S eyes were sluggish and minimally reactive and that these symptoms s D coupled with his low body temperature indicated neurological problems S did D not have palmer hand or plantar feet reflexes The ophthalmologic findings were diffuse retinal hemorrhages consistent with centripetal force injury The doctor explained that centripetal force which involves rotation and forward and backward motion is the typical force related with SBS Dr Jackson further testified that S had some rib fractures of the right seventh and possibly the fifth D and sixth The doctar stated that in infants rib fractures alone are indicative of physical abuse since it is really difficult for an infant to get a rib fracture Thus it would have taken a significant amount of force to cause this injury Dr Jackson testified that S had significant permanent injuries as a result of being shaken D and that developmental delays may become worse Dr Kenneth Cruse S pediatrician testified at trial that S was born a s D D normal baby with no neurological problems After seeing S in January of 2010 D 5 Dr Cruse stated that he agreed with Children HospitaPs diagnosis of SBS s According to Dr Cruse S will always have significant neurological D impairments but as he gets older may have some form of ambulation with the assistance of a walker Dr Cruse did not expect S ever to be able to ambulate D normally Michele Bower a pediatric physical therapist testified at trial that she was s D S physical therapist and has worked with him one hour a week for two years At trial Bower removed S from his 7 custom wheelchair and showed the D 000 trial court some of the physical therapy S undergoes which includes a lot of D stretching Bower stated that at twenty months old S can say some wards six D like good ar She explained that S always looks to the right because he out D uses the muscles on one side of his body better than the other side She further explained that at this age S should be walking around kicking a ball climbing D steps and playing with toys but instead S was working on sitting Bower stated D that on a good day S could sit up for about thirty seconds She added that S D D could not stand or crawl and he could not reposition himself when lying down She also stated that S wore leg braces and used a gait trainer which enables him D to stand up straight Bower expected S substantial impairments in speech and s D mobility were permanent Dr Mark Holder an internist testified for the defense Dr Holder stated that he had reviewed S medical records His first time testifying as an expert s D Dr Holder stated that he had in the past treated children for SBS and that he agreed with S diagnosis of SBS s D December 13 2009 42 at 7 s D S CT scan of his head was taken on Sunday m a The radiology report on this scan stated Impression changes consistent with subacute massive cerebral anoxia small subdural hemorrhages Dr Holder explained that subacute meant there was a period of 72 hours to several weeks from when the injury occurred the shaking to 6 when the CT scan was taken Thus according to Dr Holder S symptoms did s D not necessarily have to show up within hours of the injury On cross examination Dr Holder was asked if he agreed with Dr Jackson assessment that S injury s s D had to have occurred within close proximity to when the defendant noticed S s D leg shaking Dr Holder responded that he agreed with the testimony in general The prosecutor played for Dr Holder the defendant recorded statement to the s police which Dr Holder had not heard After viewing the transcript of the recorded statement Dr Holder agreed that it contained important history and further that the history was not consistent with a baby who suffered the amount of trauma D S suffered five thirty hours befare the twitching The following exchange between the prosecutor and Dr Holder then took place Q Okay So the history that we just saw which you didn have the t benefit ofwhen you made your opinion A Correct Q So the report that you wrote you said In my opinion this trauma happened before 9 a on Friday morning Correct 00 m A Correct Q After having seen this history that is no longer your opinion is it A It not compatible with the medical findings correct s Q I know And I know this is tough That not your opinion any s more after you saw this history is it A It s It not typical Q Okay Third time got to be the charm Look this is serious All s right I know that this histary is thorough complete and it in s depth and it is not consistent with a baby that suffered the type of trauma that caused this permanent damage correct A Correct Q So the trauma had to occur after 9 a on Friday 00 m A Based on the history correct On the redirect examination of Dr Holder by defense counsel the following rehabilitative exchange took place Q I still missing Doctor what you saw that had you change your m opinion from the CT scan said the injury as shown on that CT scan was subacute and therefare had probably occurred 72 hours prior to that CT scan Are you changing that opinion A Based on the CT scan alone I not changing my interpretation of m the CT scan Q Okay A The CT scan clearly states subacute Q Which means 72 hours prior A Yes sir Sergeant Shane Fletcher with the Terrebonne Parish Sheriff Office s testified at trial that he was the lead investigator on this case and that he had interviewed the defendant The interview was recorded and the DVD of the recording was introduced into evidence and played for the trial court Upon being Mirandized and signing an advice of rights form the defendant infarmed Sergeant Fletcher that S was happy when he picked him up Friday morning everything D was fine for the rest of the day Friday and S looked good when he S woke D D up Saturday morning Saturday evening S drank two ounces of his formula and D threw it up According to the defendant after several minutes he fed S the D other two ounces in his bottle and S kept that down S then began crying D D hard and his leg started shaking He called Melissa and told her something was wrong with S A short time later S arm began shaking and his eyes were D s D twitching When the heavy rain abated he met Melissa at Nocko to give S to s D her The defendant denied that he shook S or hurt him in any way D The defendant informed Sergeant Fletcher that he was the only person who handled D S at his mother house The defendant mother testified at trial that the people s s living at her house when S was over there were her sister her husband and the D defendant She confirmed that no one in her house including herself handled S D except for the defendant When asked during the interview about the beer he purchased the defendant denied it After being told there was video footage the defendant admitted he purchased a beer and could not explain to Sergeant Fletcher why he had lied The defendant did not testify COUNSELED AND PRO SE ASSIGNMENT OF ERROR NO 1 In his first counseled assignment of error the defendant argues the evidence s was insufficient to support the conviction Specifically the defendant contends the State failed to prove that he was the person who injured S D A conviction based on insufficient evidence cannot stand as it violates due process S See U Const amend XIV La Const art I 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 S Ct 61 L 560 1979 see La Code Crim P art 821 State v Ordodi 06 2d Ed B 0207 La 11 946 So 654 660 State v Mussall 523 So 1305 1308 06 29 2d 2d 09 La 1988 The Jaclzson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence La R 15 S 438 provides that in order to convict the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 01 La App 1 Cir 6 822 So 141 144 Furthermare 2585 02 21 2d when the key issue is the defendant identity as the perpetrator rather than s whether the crime was committed the State is required to negate any reasonable probability of misidentification Positive identification by only one witness is sufficient to support a conviction It is the factfinder who weighs the respective credibilities of the witnesses and this court will generally not second those guess determinations See State v Hughes OS La 11 943 So 1047 0992 06 29 2d 1051 State v Davis 01 La App 1 Cir 6822 So 161 163 3033 02 21 2d 64 La R 14 provides in pertinent part S 93 23 1 Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment ar neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child A 9 2 For purposes of this Secrion serious bodily injury means bodily injury involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member organ or mental faculty or substantial risk of death The defendant does not deny that shaken baby syndrome caused S s D injuries He asserts instead in his brief that reasonable doubt existed over whether D S was injured while in his defendant scare and custody Specifically in his sole argument the defendant suggests that S may have been injured between the D time Melissa picked up S from Nocko and the drive back home According to D s the defendant child abuse pediatrician Dr Jackson testified that the symptoms of shaken baby syndrome occur immediately At trial Dr Jackson explained in a hypothetical context that immediate bleeding on the brain can result from being shaken Also the hemorrhaging in the eyes would be immediate However with regard to S specific symptoms of s D vomiting and a twitching arm and leg as described by the defendant as occurring around 730 p on Saturday Dr Jackson suggested that the incident m was shaken evening when S D occurred some time between Saturday morning and Saturday D S underwent a CT scan of his head at Children Hospital on s December 13 2009 Sunday at 7 a An attending neurologist at the hospital 42 m Dr McGuire who did not testify at trial included in her written notes not clear time of injury 24 hours Impression progressing edema of the brain coma 48 signs of impending hemiation continue supportive care Her prognosis was Grave Dr Jackson testified this meant the injury likely occurred 24 to 48 hours from the time the CT scan was taken Thus accarding to Dr Jackson the injury ar shaking occurred at least 24 hours prior to the CT scan or at 7 a Saturday 42 m when S was with the defendant D D S was taken by Melissa to Thibodaux Regional Medical Center at about 45 m 10 p on Saturday Dr Speights the emergency room physician who cared io for S testified at trial that S had been injured probably within the last twelve D D hours and that if S had been injured longer than twelve hours before he D probably would not have survived Dr Kenneth Cruse a pediatrician testified that the symptoms of vomiting and twitching of the limbs occurred within hours of the traumatic event the shaking The evidence clearly established S began suffering symptoms when he D was with the defendant Melissa testimony corroborated by the defendant own s s recorded statement to the police indicates that at about 730 p on Saturday the m defendant called Melissa and told her that S had vomited and that his leg was D shaking Thus the earliest indication of symptoms of SBS was at 7 p and 30 m could ha been earlier and the defendant simply waited to call Melissa before e D S was even back in Melissa care In his interview the defendant stated that s D S looked good Saturday morning and afternoon but later that evening S had D vomited his arm and leg were shaking and his eyes were twitching Doctors confirmed that vomiting and the seizure symptoms of twitching limbs are like compatible with a baby having been violently shaken Also S had fractured D ribs Accordingly there was nothing in the evidence to suggest that Melissa injured S by shaking him some time during the thirty to forty drive back D minute home from Nocko s 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 55 61 La App lst 2d Cir writ denied 514 So 126 La 1987 The defendant suggests that he was 2d not the person who shook S injuring him However the trier of fact is free to D accept or reject in whole or in part the testimony of any witness including an expert State v Duclzsworth 496 So 624 634 La App lst Cir 1986 2d i Moreover when there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency The trier of fact s determination of the weight to be given evidence is not subject to appellate review An appellate court will not reweigh the evidence to overturn a factfinder s determination of guilt State v Taylor 97 La App 1 Cir 9 721 2261 98 25 2d So 929 932 We are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 99 La 10 772 So 78 83 The fact that the record may 3342 00 17 2d contain evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient See 5tate v Quinn 479 So 592 596 La App lst Cir 1985 In the absence of internal 2d contradiction or ineconcilable conflict with the physical evidence one witness s testimony if believed by the trier of fact is sufficient to support a factual conclusion State v Higgins 03 La 4 898 So 1219 1226 cert 1980 OS 1 2d denied 546 U 883 126 S 182 163 L 187 2005 S Ct 2d Ed The trial court heard all of the testimony and viewed the documentary evidence presented to it at trial and notwithstanding any conflicting testimony found the defendant guilty The trial court judgment of guilt reflected the s reasonable conclusion that based on the physical evidence and expert testimony the defendant at some point during his approximately 35 period ofcustody of hour D S violently shook S breaking his ribs and causing irreparable neurological D injuries In finding the defendant guilty the trial court clearly rejected the s defense theory of innocence See Moten 510 Sa2d at 61 After a thorough review of the record we are convinced that viewing the evidence in the light most favarable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of any hypothesis of i2 innocence that the defendant was guilty of second degree cruelty to juveniles See State v Calloway 07 La 1 1 So3d 417 418 per curiam This 2306 09 21 assignment of error is without merit In his pro se assigrunent of error attacking the sufficiency of the evidence the defendant argues that other information should have been elicited at trial to show that he was not responsible for S injuries For example the defendant s D suggests that possibly S was injured by Melissa by giving S Tylenol or S D D D was injured priar to birth by prenatal medication the same medication that caused Melissa to miscarty twins The counseled assignment of enor regarding sufficiency fully discussed above clearly established the defendant was the person who violently shook S D causing his injuries On appeal the reviewing court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events Mitchell 772 So at 83 See State v Juluke 98 2d 0341 La 1 725 So 1291 1293 per curiam 99 8 2d Accordingly the pro se assignment of error is without merit ASSIGNMENT OF ERROR NO 2 In his second assignment of enor the defendant argues that he did not knowingly and voluntarily waive his right to a jury trial The punishment far second degree cruelty to juveniles is confinement at hard labor La R 14 Accordingly the defendant was entitled to a S 93 C 23 jury trial La Const art I A 17 La Code Crim P art 782 A Louisiana Code of Criminal Procedure article 780 provides in pertinent part A A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge At the time of arraignment the defendant in such cases shall be informed by the court of his right to waive trial by jury 13 Thus if a defendant is tried and convicted by a judge when he is entitled to a trial by jury the record must show that a jury trial was knowingly and intelligently waived See State v Cappel 525 So 335 336 La App lst Cir writ 2d 37 2d denied 531 So 468 La 1988 While the Louisiana Supreme Court has rejected an absolute rule requiring the trial judge to personally inform defendant of his right to a jury trial the preferred method of ensuring the right is for the trial judge to advise defendant personally on the record of his right to a jury and to require that defendant waive the right personally either in writing or by oral statement in open court on the record State v Brooks 01 La App 1 Cir 1138 02 28 3814 So 72 78 writ denied 02 La 11 829 So 1037 2d 1215 02 22 2d The trial court in the instant matter conducted a hearing on the defendanYs motion to waive jury trial In his brief the defendant notes that after the trial court obtained his educational level and that he had never been treated for mental illness the trial court asked Are you presently suffering from any mental or emotional disability The defendant responded IJh According to the defendant since uh he did not answer yes or no the trial court did not establish whether or not he was experiencing emotional difficulties Thus defendant contends that a question exists as to whether he knowingly and voluntarily waived his right to a jury trial s The defendant assertion is baseless We note initially that uh uh generally means no and uh huh means yes Our understanding of the meaning of uh uh notwithstanding the defendant inexplicably has failed to include the entire exchange between him and the trial court and a prosecutor which clearly indicates a knowing and voluntary waiver of the right to a jury trial Thus following the defendant response in the negative to suffering from mental s or emotional disability the following exchange took place The Court Okay Mr Dion I have you here because you being re tried on the charge of second degree cruelty to a juvenile and you have a trial set for the month of November It my understanding that you s ta and your attorney have filed a motion or whether it either a written s motion or an oral motion to waive the jury Do you understand that Defendant Yes sir The Court You understand under the charges that you have because s it a sentence at hard labor you entitled to be tried by a jury of re your peers of 12 people ten of whom would have to vote to convict you Do you understand that Defendant Yes sir You feel that it in your best interest at this s time to waive that right to a jury trial Defendant Yes sir The Court And you make this decision knowingly and intelligently Defendant Yes sir The Court Okay Mr Barnes do you have any questions first Examination by Mr Barnes Prosecution Mr Dion you know that you can tgo back once you waive the jury The Court And you Defendant No I ain going to go back Isticking with it t m Mr Barnes Okay The Court Mr Whipple Mr Whipple defense counsel The Court Okay I have no None Judge And you wish to be tried by a judge is that correct Defendant Yes sir The Court Thank you Mr Dion Defendant That it s The Court The Court having gone over the the testimony of the witness here will find that he knowingly and intelligently waives his rights to a jury trial and Mr Dion will be tried by a bench trial Furthermare two months later on the first day of the bench trial the trial court again went over with the defendant his decision to waive a jury trial The Court All right The way I understand previously Mr Dion had waived his rights to a jury trial and asked for a bench trial is that correct Mr Whipple defense counsel Yes Your Honor The Court And you stand with that Mr Dion Defendant Yes sir The Court You previously were brought into the C and I ourt questioned you about that and the Court will accept that Mr Whipple Right The foregoing clearly establishes the defendant was made aware of his right to a jury trial and made a lrnowing and intelligent waiver of that right Accordingly this assignment of error is without merit 15 ASSIGNMENT OF ERROR NO 3 In his third assignment of error the defendant argues he was provided ineffective assistance of counsel Specifically the defendant contends defense counsel failed to file a motion to suppress the evidence or statements and failed to call the appropriate physician to testify regarding S injuries s D A claim of ineffective assistance of counsel is more properly raised by an application for postconviction relief in the district court where a full evidentiary hearing may be conducted However where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal it may be addressed in the interest of judicial economy State v Carter 96 La App 1 Cir 11 684 So 432 438 0337 96 8 2d The defendant asserts it was deficient performance by defense counsel in failing to file a motion to suppress the evidence or statements and in calling as s defense medical expert an internist instead of a neurologist to interpret S s D medical reports preparation and These allegations of ineffectiveness relate to pretrial and trial strategy Decisions relating to investigation preparation and strategy cannot possibly be reviewed on appeal Only in an evidentiary hearing in the district court where the defendant could present evidence beyond what is contained in the instant record could these allegations be sufficiently investigated Accordingly these allegations of ineffectiveness are not subject to appellate review See State v Albert 96 La App 1 Cir 6 697 So 1355 1991 97 20 2d 64 1363 See State v Allen 94 La App 1 Cir ll 664 So 1264 1941 95 9 2d 1271 writ denied 95 La 3 669 So 433 State v Martin 607 2946 96 15 2d 2d So 775 788 La App lst Cir 1992 This assignment of error is not subject to appellate review 2 The defendant would have to satisfy the requirements of La Code Crim P art 924 et seq in order to receive such a hearing 16 ASSIGNMENT OF ERROR NO 4 In his fourth assignment of error the defendant argues the trial court erred in allowing the physical therapist to demonstrate on S the therapy he underwent D Specifically the defendant contends the prejudicial effect of allowing 5 to be D brought into the court outweighed the probative value Michele Bower a pediatric physical therapist was called by the State to testify Bower testified she was S physical therapist and that she worked with s D him one hour per week Instead of having Bower testify about the specifics of the hour one sessions of physical therapy the State sought to bring S into the D courtroom and have Bower do some exercises with S so the trial court could D have a better understanding of S impairments Defense counsel objected on s D the grounds that neurological damage was more properly shown through the testimony of doctors rather than a physical therapist Defense counsel further argued the demonstration was being used to invoke the trial court sympathy and s that it had no relevance in proving any facts or elements of the crime The prosecutor countered that the State had the burden of proving neurological damages sustained by S and that the best evidence of this was for the trial court D to see visually what those impairments are In overruling the defendant objection the trial court stated s I think it will go on to show neurological impairment just as if he was being brought in if this was a homicide and the pictures of the body were shown to show the wounds or whatever I think the same thing can be shown used here to show the neurological impairment D S was brought into the courtroom and Bower conducted several exercises with the child to demonstrate what he could and could not do and to compare his impaired progress with a typical two old year Bower and S were videotaped D and the DVD was submitted into evidence Preliminary questions concerning the competency or qualification of a i person to be a witness or the admissibility of evidence shall be determined by the court La Code Evid art 104 Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the detertnination of the action mare 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 La Code Evid art 402 Although 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 Ultimately questions of relevancy and admissibility of evidence are discretion calls for the trial court Such determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion See State v Mosby 595 So 2d 1135 1139 La 1992 State v Olivieri 03 La App 5 Cir 10 860 563 03 28 2d So 207 218 We see no reason to disturb the trial court ruling We agree with the trial s s court analogy of the use of photographs at trial and note as well that videos of potentially very disturbing crime scenes have long been held to be admissible evidence at trial See State v Huls 95 La App 1 Cir 5 676 So 0541 96 29 2d 160 176 writ denied 96 La 1 685 So 126 1734 97 6 2d See also State v Perry 502 So 543 559 La 1986 cert denied 484 U 872 108 S 205 2d S Ct 98 L 156 1987 where the supreme court noted the defendant cannot 2d Ed deprive the State of the moral farce of its case by offering to stipulate to what is shown in photographs The evidence here introduced along with testimony by a live demonstration of S limits and capabilities was highly relevant in facilitating the trial court s D s assessment of the extent of S injuries s D is Accordingly the trial court did not abuse its discretion in allowing such evidence to be introduced Moreover even had the trial court erred in allowing this evidence at trial such admission would have constituted harmless error Louisiana Code of Criminal Procedure article 921 states that a judgment or ruling shall not be reversed by an appellate court because of any error defect irregularity or variance which does not affect substantial rights of the accused The test for determining whether an error is harmless is whether the judgment of guilt actually rendered in this case was surely unattributable to the enar Sullivan v Louisiana 508 U S 275 279 113 S 2078 2081 124 L 182 1993 Ct 2d Ed In the instant matter the medical and testimonial evidence clearly established the defendant sguilt as well as the extent of S injuries As such s D the demonstration of S physical therapy was merely cumulative Thus the s D judgment of guilt rendered was surely unattributable to any demonstrative evidence of S neurological damage and any error in allowing such evidence s D was harmless beyond a reasonable doubt See Sullivan 508 U at 279 113 S S Ct at 2081 This assignment of error is without merit ASSIGNMENT OF ERROR NO 5 In his fifth assignment of enor the defendant argues his sentence is unconstitutionally excessive A thorough review of the record indicates the defendant did not make or file a motion to reconsider sentence following the trial court imposition of the s sentence Under La Code Crim P arts 8811 and 881 the failure to E 1 A 2 make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal including a claim of excessiveness 3 Following sentencing of the defendant defense counsel stated We lljust note our objection for the record Defense counsel objection did not constitute an oral motion to s reconsider sentence Moreover a general objection to a sentence without stating specific v See State v grounds including excessiveness preserves nothing for appellate revie Bickham 98 La App 1 Cir 6 739 So 887 891 1839 99 25 2d 19 See State v Mims 619 Sa2d 1059 La 1993 per curiam The defendant therefore is procedurally barred from having this assignment of error reviewed because of his failure to file a motion to reconsider sentence after being sentenced See State v Duncan 94 La App 1 Cir 12 667 So ll41 ll43 1563 95 15 2d en banc per curiam This assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED zo
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