State Of Louisiana v. Angel Galvan-Paz ( 2023 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 KA 1012
VIP
STATE OF LOUISIANA
W VERSUS
ANGEL GALVAN- PAZ
Judgment Rendered: FEB 2 4 2023
On Appeal from the 17th Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
Trial Court No. 595611
Honorable F. Hugh Larose, Judge Presiding
Kristine Russell Attorneys for Appellee,
District Attorney State of Louisiana
Joseph S. Soignet
Jason Chatagnier
Assistant District Attorneys
Thibodaux, Louisiana
Lieu T. Vo Clark Attorney for Defendant/ Appellant,
Madisonville, Louisiana Angel Galvan- Paz
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
PENZATO, J.
The defendant, Angel Galvan-Paz, was charged by an amended bill of
information with second degree cruelty to juveniles, a violation of La. R.S.
14: 93. 2. 3. He pled not guilty and, following a jury trial, was found guilty as charged.
The trial court sentenced the defendant to twenty-five years imprisonment at hard
labor. The defendant filed a motion to reconsider sentence, which the trial court
denied. The defendant now appeals, assigning error to the sufficiency of the
evidence, the constitutionality of the sentence, and the denial of his motion to
reconsider sentence. For the following reasons, we affirm the conviction and
sentence.
STATEMENT OF FACTS
On February 22, 2020, Captain Walter Theriot, then a patrol deputy with the
Lafourche Parish Sheriffs Office ( LPSO), was dispatched to 211 West 64th Street
in Cutoff, Louisiana. The dispatch was in response to a medical call regarding a
four -month- old infant child, C. M., the victim,' falling out of a vehicle. Captain
Theriot testified that when he arrived at the residence, he was informed that C.M.
did not fall out of a vehicle, but instead fell out of a baby swing approximately eight
to twelve inches off the ground. Captain Theriot observed as C. M. was examined
by Lafourche Ambulance Services. The emergency examiner noted possible abuse.
Captain Theriot observed C. M.' s injuries, including bruising to his stomach and arm,
and further noted that C.M. was in pain and crying. Captain Theriot referred the
case to the juvenile division of the LPSO. C. M. was taken by ambulance to
Children' s Hospital in New Orleans.
The next day, February 23, 2020, Detective Teresa Gatica with the juvenile
division of LPSO was assigned to the case. She went to Children' s Hospital where
1 Herein, we will refer to the victim, his mother, and his siblings by their initials only. See La.
R.S. 46: 1844( W). State v. Mangrum, 2020- 0243 ( La. App. 1st Cir. 2122121), 321 So. 3d 986, 989
n. 1, writ denied, 2021- 00401 ( La. 10/ 1121), 324 So. 3d 1050.
2
she conducted interviews of C.M.' s parents, the defendant and L.M.' Detective
Gatica advised them of their Miranda' rights prior to questioning, and they each
waived their rights. L.M. informed Detective Gatica that she left for work at 8: 00
a.m. on the morning of the incident. When she was returning home that night, the
defendant called her and stated that their son' s arm was stuck or that he had dropped
the child. L.M. further told Detective Gatica that she initially thought the defendant
was joking, as he had done in the past, to get her to come home quicker. Due to
traffic from a Mardi Ceras parade, L.M. arrived home after 10: 00 p.m. L.M. informed
Detective Gatica that when she saw C. M., she observed that his arm appeared broken
or limp. L.M. further stated that the defendant initially did not want to tell her what
happened because he believed she would be upset with him. She said he eventually
told her that C.M. was injured when he fell from a baby swing, but later told her that
C. M. was injured when his two- year- old sister stepped on his arm. L.M. said she
contacted a family member and asked them to call the paramedics.
When Detective Gatica subsequently interviewed the defendant, the defendant
indicated that the accident occurred when he and C.M.' s two-year-old sister were
walking down the outdoor steps of his trailer.4 The defendant stated that his daughter
slipped while going down the steps, and he grabbed her to prevent her from falling.
In doing so, he tilted the car seat in which he was carrying C. M., and C. M. fell about
a foot in distance, from the car seat down to the steps. The defendant told Detective
Gatica that he did not initially believe C.M. was seriously injured.
Detective Gatica subsequently received C.M.' s medical records from the
Department of Children and Family Services. The records indicated that in addition
2 The defendant and L.M. only spoke Spanish. Detective Gatica spoke both Spanish and English.
Interpreters were used during other pretrial interviews and during the trial testimony of L.M. and
the defendant.
3 See Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 ( 1966).
a Detective Gatica later went to the defendant' s trailer and took photographs of the outdoor steps.
3
to a fractured arm, C. M. had " non -accidentally [ sic] trauma," also described as
blunt trauma," including parietal skull fracture, right humerus fracture, right femur
fracture, a grade -three liver laceration, and bruising. After medical staff informed
Detective Gatica and her division that C.M.'s injuries could not have occurred as the
defendant described, they pursued charges against the defendant and L.M. for cruelty
to juveniles.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, the defendant argues that the
circumstantial evidence presented at trial did not exclude every reasonable
hypothesis of innocence and was insufficient to convict him of second degree cruelty
to juveniles. Thus, he contends the State failed to meet its burden of proof. He notes
there was no testimony or evidence that he had a history of abusing his children. He
argues that Dr. Paige Culotta, an expert in child abuse pediatrics who testified that a
fall would not explain all of C. M.' s injuries, was unaware of all the details of the fall
suffered by C. M. The defendant notes that in addition to being the only adult present
when C. M. fell out of the car seat, he did not see how C.M. fell, as he was assisting
his toddler, who slipped as they were going down the steps outside of his trailer. The
defendant notes that Dr. Culotta clarified that a fall onto concrete could result in
significant injuries. Thus, the defendant specifically argues the circumstantial
evidence did not exclude the reasonable hypothesis of innocence that C.M.' s injuries
were possibly caused by him falling from the car seat held by the defendant, rolling
down two wooden steps followed by a concrete step, and then finally rolling into the
grass.
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 standard of review
for sufficiency of the evidence to support a conviction is whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
0
have found that the State proved the essential elements of the crime beyond a
reasonable doubt. See La. Code Crim. P. art. 821( B); Jackson v Virginia, 443 U. S.
307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 ( 1979); State v Ordodi, 2006- 0207
La. 11129106), 946 So. 2d 654, 660; State a Williams, 2019- 0077 ( La. App. 1st Cir.
5131119), 2019 WL 2315340, * 2, writ denied, 2019- 01060 ( La. 10/ 1/ 19), 280 So. 3d
158. 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 factfinder must be satisfied that the overall evidence excludes every
reasonable hypothesis of innocence. State a Patorno, 2001- 2585 ( La. App. 1st Cir.
6/ 2I/ 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
defendant' s own testimony, that hypothesis falls, and the defendant is guilty unless
there is another hypothesis that raises a reasonable doubt. State v James, 2017- 1253
La. App. 1st Cir. 2/ 27118), 243 So. 3d 717, 721, writ denied, 2018- 0419 (La. 1/ 8/ 19),
259 So. 3d 1024.
Second degree cruelty to juveniles is the intentional or criminally negligent
mistreatment or 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. La. R.S. 14: 93. 2. 3( A)( 1). " Intentional," as used in the statute, refers to
general criminal intent, present whenever there is specific intent, and also when
circumstances indicate that the offender, in the ordinary course of human experience,
must have adverted to the prescribed criminal consequences as reasonably certain to
result from his act or failure to act. See La. R.S. 14: 10( 2); State v. Staggs, 2019-
0110 ( La. App. 1 st Cir. 9127/ 19), 2019 WL 4739247, * 2, writ denied, 2019- 01797
La. 7/ 17/ 20), 298 So. 3d 174. Criminal negligence exists when, although neither
specific nor general criminal intent is present, there is such disregard of the interest
5
of others that the offender' s conduct amounts to a gross deviation below the standard
of care expected to be maintained by a reasonably prudent man under like
circumstances. La. R.S. 14: 12. " Mistreatment" as used in the statute is equated with
abuse. State v. Booker, 2002- 1269 ( La. App. 1st Cir. 2/ 14/ 03), 839 So. 2d 455, 459,
writ denied, 2003- 1145 ( La. 10/ 31/ 03), 857 So.2d 476. Serious bodily injury is
bodily injury which involves unconsciousness; extreme physical pain; protracted
and obvious disfigurement; protracted loss or impairment of the function of a bodily
member, organ, or mental faculty; or a substantial risk of death." La. R.S. 14: 2( 0).
Lucas Bricknell was one of the paramedics with Lafourche Ambulance
Services who examined C.M. at the scene. Mr. Bricknell testified that he was
dispatched to the scene to provide emergency assistance to a child who fell a distance
of approximately one foot, from a bouncy seat onto the floor, and possibly broke an
arm as a result of the fall. When Mr. Bricknell arrived at the scene, a firefighter
approached him with C. M. and also indicated that C. M. had fallen and possibly
broken his arm. Mr. Bricknell noted that C.M. had soiled clothing, which he
described as " maybe dried food, you know, urine possibly feces." After removing
clothing to expose C.M.' s arm, he observed bruising and deformity while taking
C. M.' s brachial pulse. He heard crepitus, a crunching sound sensation of a bone that
is fractured. Thus, the paramedics secured a pediatric arm board as a splint for the
injured extremity. Mr. Bricknell described C. M.' s demeanor as " overly calm" and
noted that he was not crying at the time, adding, " usually if you take a child that age
away from a parent they are very fussy, crying." Mr. Bricknell contacted Louisiana
Emergency Response Network and, as instructed, transported C. M. to Terrebonne
General Medical Center. Based on his experiences as an EMS provider, Mr.
Bricknell concluded that the injuries he noted were not consistent with a fall from a
short distance.
L.M., C.M.' s mother, testified at trial. She stated she was originally from
Cel
Honduras, where she met the defendant, and had been living in Louisiana for five
years. She and the defendant have three children together, C. M. and his two older
sisters, E.M. and A.M., who were six and two years of age, respectively, at the time
of the incident in question. They lived together in a trailer along with L.M.' s mother
and sister. The defendant lost his job on or near February 2, 2020, and began
watching the children while L.M., her mother, and her sister worked at a grocery
store. Later that month, on the day in question, L.M., her mother, and her sister went
to work. E. M., C. M.' s oldest sibling, also left that morning to attend a church
function. L.M. further testified that when she saw C. M. that morning before she left
for work, he was fine and did not have any broken bones to her knowledge.
However, L.M. noted that G. M. had " two little bruises" on his stomach, which she
explained as being " fingers marked" by the defendant because of the way he held
C. M. L.M. further stated, "[ tjhat' s the only thing that had worried me, and I called
him on it." She later explained that while the defendant played with the children, he
held C. M. in such a manner that caused the bruises on his stomach, responding
positively when asked if the defendant was playing the " airplane game[.]"
L.M. further testified that when she was on her way home, around 9: 30 p.m.,
the defendant called her and told her that C.M. fractured his arm. She initially
terminated the call and continued navigating through traffic. When she called the
defendant back, he told her that their two-year-old daughter, A.M., had fallen on top
of C. M. L.M. noted that when she, her mother, and her sister arrived home, her
mother picked up C. M. L.M. cried as she observed that C. M.' s arm was " loose, was
off where it was supposed to be." As L.M. does not speak English, she called her
aunt and her cousin, who called for an ambulance. L.M. admitted to and apologized
for lying to ambulance personnel in initially claiming that she dropped her son. She
explained that she lied because she was nervous, had an issue with immigration, and
was afraid to admit that she had left her son alone with the defendant. She repeated
7
the lie when she arrived at the hospital and spoke to a doctor. She testified that she
did not in fact injure or harm C. M. despite her previous statements. At the hospital,
she observed additional injuries, including bruises on C. M.' s back and head. She
noted that C. M. was taken by ambulance to a hospital in New Orleans.
L.M. testified that the doctors in New Orleans informed her that C. M. had
injuries to his head, arm, wrist, stomach, and liver. When one of the doctors in New
Orleans asked L.M. what happened with C. M., she asked for forgiveness for lying
and stated that C.M. had been with the defendant that day and that she did not know
what happened. L.M. subsequently questioned the defendant and the defendant
ultimately told her that he dropped C. M. on the steps. L.M. gave this information to
detectives and the Department of Children and Family Services, relaying the
defendant' s revised explanation but reiterating that she did not know what happened.
She denied ever seeing the defendant abuse any of their three children. She further
testified that she had taken C. M. to see his pediatrician since he was born, noting
that he appeared to have asthma, and she brought him to have medical care every
time he needed it.
Anjuli Leblanc, a child welfare investigator with the Department of Children
and Family Services at the time of the incident, testified at trial. She noted that the
department received a call on February 22, 2020, regarding C.M.' s hospitalization
at Children' s Hospital in New Orleans and suspected abuse. In beginning her
investigation, Ms. Leblanc received an initial report from Children' s Hospital stating
that there was evidence of non- accidental trauma such as skull fracture and broken
bones. On February 24, 2020, Ms. Leblanc went to see C. M. in the hospital and
observed that he had a cast on his right arm in its entirety that secured his arm to his
body, and that a harness that held his feet in a seated position was attached to his
chest. She further observed bruises of various stages on his lower chest, upper
abdomen, right thigh, and lower back along the spine. Based on her experience, she
considered C. M.' s injuries to be indicative of suspected child abuse.
Ms. Leblanc testified that she interviewed the defendant, and he gave
inconsistent stories as to how C. M. was injured, including claims that C.M. fell from
a bouncer, fell from a table, fell out of a car seat while going down the steps of the
home, and that E. M. fell over on him and A.M. pushed him. The defendant said he
was nervous about what to tell L.M. in regards to C. M.' s injuries. Ms. Leblanc
testified that the defendant was calm but nervous during the interview. Consistent
with L.M.' s trial testimony, Ms. Leblanc later teamed that E.M. was not home during
the incident. According to Ms. Leblanc, L.M. informed Ms. Leblanc that she was at
work that day and observed C.M.' s injuries when she got home that evening.
Dr. Culotta, the aforementioned child abuse pediatrician at Children' s
Hospital in New Orleans, testified as an expert in child abuse pediatrics. Dr. Culotta
evaluated C.M. on February 23, 2020, after being contacted by another doctor who
was concerned about physical abuse. Dr. Culotta interviewed the defendant and
L.M. by telephone. Dr. Culotta testified that L.M. told her that the defendant told
L.M. that C. M.' s two-year-old sibling fell on him, but confirmed that she did not
know what happened because she was at work at the time. The defendant told Dr.
Culotta that C.M. fell out of the car seat when he tried to help his daughter, who
almost fell when going down the steps outside of the trailer. The defendant was not
sure exactly how C.M. fell but believed that he hit his head on the first step and then
rolled onto the grass. He did not notice C.M. hit any other part of his body when he
fell and did not see anything wrong with him after the fall. Dr. Culotta testified that
the defendant said he gave C.M. a bottle after the fall, C.M. consumed three ounces,
and then fell asleep. When he woke up, his arm was limp and appeared swollen, and
he cried continuously.
In physically examining C.M., Dr. Culotta noted swelling to the left parietal
scalp and a circular bruise on the left side of his chest. She further noted that he had
G]
a cast on his right arm and a harness in place to his legs, abrasions on the back of his
hand, and a small scar on the side of his right leg. C. M.' s lab work showed that he
had elevated liver enzymes and a CT scan of his belly showed a grade -three liver
laceration. An x-ray of C. M.' s arm showed a comminuted fracture of the distal
humoral diaphysis. His arm was splinted, with mild lateral displacement and
deformity. Dr. Culotta noted that the term " comminuted" means that there could be
a separate piece of bone or also indicates " more force," meaning that it was more
than just a typical break. She noted the concern of a " twisting force" or " grab and a
twist" regarding such injuries, though she did not see pieces of bone on the x-ray.'
Dr. Culotta confirmed that C. M.' s head injury was on the left side, but his arm
fracture was on the right side of his body. She noted that it was a concern when
babies have injuries on different planes of their body.
Dr. Culotta diagnosed C. M. with child physical abuse. She testified that her
diagnosis was based on her concerns with each of the injuries in the report. She
specifically noted that C. M. was a four -month- old male presenting with a concern
for physical abuse due to multiple injuries that had been identified and not explained
by the history In that regard, she further noted that the history provided by his
parents did not match C. M.' s injuries. She concluded that a fall from a car seat onto
stairs would not have caused all three of the major injuries, the right arm fracture,
the left skull fracture, and the grade -three liver laceration on the right side, which
meant that his liver was hit so hard and fast that it burst. Additionally, C.M. had
bruises to his chest and in the middle of his back. She testified, "[ s] o my conclusion
was that a fall from the car seat as it was described does not explain the entirety of
his injuries." In describing a fall such as the one alleged, Dr. Culotta noted that if a
baby falls and first hits his head on the stairs, then that is probably where there would
s In this regard, Dr. Culotta noted that she is not a radiologist, conceding that a radiologist would
give the best description" of the x- ray images.
10
be an injury. Once the child starts to roll or if they go down another stair or a couple
of stairs, each of those additional falls is only a matter of inches and they typically
will not get multiple injuries from stair falls.
The defendant testified at trial that on the evening in question, C. M.' s six-
year- old sister, E. M., was not home, but his two-year-old sister, A.M., who was
home, was hungry, and there was no food in the house. The defendant called a friend
and asked him to pick them up to get pizza. He confirmed that he changed C. M.' s
diaper and put C. M. in his car seat, but did not buckle him into the carrier. He stated
that he grabbed A.M.' s hand with his left hand, grabbed C.M. with his right hand,
and went out of the trailer. According to the defendant, as he was going down the
steps, A.M. tripped and fell. When she was falling, he grabbed her, and in doing so,
he slipped down and ended up sitting on the second -to -last wooden step. When he
fell to a sitting position, the car seat tilted and C.M. fell. The defendant noted that
he did not see exactly how C.M. fell because he was looking at A.M. at the time, but
noted that C.M. landed in the grass.
The defendant stated that he picked up C.M., who was crying, and " his arm
was twisted behind him." The defendant took him inside and gave him a bottle, and
he fell asleep. The defendant testified that he did not know that C. M.' s arm was
fractured. The defendant denied ever abusing or beating his children and referred to
his failure to strap C. M. into the car seat as " the worst mistake I' ve ever committed
as a parent[.]" The defendant confirmed that he never called for emergency care.
However, he testified that he realized that C.M.' s arm was fractured within fifteen
minutes of laying him down, when he began crying.
Dr. Amanda Rogers, a family medicine physician, testified as an expert in
family medicine. On October 29, 2019, Dr. Rogers treated C.M. when L.M. brought
him to the doctor due to her concerns about forceful spit up. Dr. Rogers ordered an
ultrasound of C. M.' s abdomen to determine if he had either pyloric stenosis or only
11
normal baby reflux. L.M. brought C. M. back the next day for the ultrasound, which
produced normal results. Dr. Rogers determined that the spitting up was caused by
overfeeding and counseled L.M. regarding the appropriate amount of milk to give
C.M. at one sitting. She did not see any signs of abuse or neglect or have any
developmental concerns. Dr. Rogers wrote a letter confirming that L.M. brought
C. M. to be seen by the Kid Med nurse on November 1, 2019, and January 29, 2020,
for checkup and shots. There was no mention of suspicion of neglect or abuse as to
those visits. Nurse Brandy Guidry, a Kid Med nurse, similarly testified that C.M.
had no issues or problems when she saw him, and she had no concerns of abuse or
neglect.
The trier of fact is free to accept or reject, in whole or in part, the testimony
of any witness. 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 a Taylor, 97- 2261 ( La. App. 1st Cir.
9125198), 721 So. 2d 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- 3342 ( La. 10117100), 772 So.2d 78, 83. The fact that the record
contains evidence which conflicts with the testimony accepted by a trier of fact does
not render the evidence accepted by the trier of fact insufficient. State v Quinn, 479
So. 2d 592, 596 ( La. App. 1st Cir. 1985). See State a Weary, 2003- 3067 ( La.
4124106), 931 So. 2d 297, 311- 12, cert. denied, 549 U.S. 1062, 127 S. Ct. 682, 166
L.Ed.2d 531 ( 2006).
In the absence of internal contradiction or irreconcilable conflict with the
physical evidence, one witness' s testimony, if believed by the trier of fact, is
12
sufficient to support a factual conclusion. State v Higgins, 2003- 1980 ( La. 411105),
898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S. Ct. 182, 163 L.Ed.2d 1872005). An appellate court errs by substituting its appreciation of the evidence and
credibility of the witnesses for that of the factfinder and thereby overturning a verdict
on the basis of an exculpatory hypothesis of innocence presented to, and rationally
rejected by, the trier of fact. See State a Calloway, 2007- 2306 (La. 1121109), 1 So. 3d
417, 418 ( per curiam).
We note that the defendant told inconsistent stories before ultimately
indicating that C.M.' s injuries were caused by an accidental fall down a set of steps.
Lying has been recognized as indicative of an awareness of wrongdoing. State u
Captville, 448 So. 2d 676, 680 n.4 ( La. 1984); State v Chesterfield, 2016- 1570 ( La.
App. 1st Cir. 6/ 2/ 17), 2017 WL 2399029, * 6, writ denied, 2017- 1210 ( La. 4127118),
241 So. 3d 310. Considering the discrepancies among the defendant' s various
explanations for C.M.' s injuries, the jury could have concluded that his lies were an
indication of guilt. Moreover, the jury heard, and rejected, the defendant' s ultimate
theory that all of C. M.' s injuries were caused by an accidental fall on the steps. In
reviewing the evidence, we cannot say that the jury' s determination was irrational
under the facts and circumstances presented to them. See 4rdodi, 946 So.2d at 662.
Based on the evidence presented in this case, the jury could have rationally
concluded that the defendant committed intentional, or at the very least, criminally
negligent mistreatment of his four -month-old son. Viewing the evidence in the light
most favorable to the State, we are convinced that any rational trier of fact could
have found beyond a reasonable doubt, and to the exclusion of every reasonable
hypothesis of innocence, that the defendant was guilty of second degree cruelty to
juveniles. See Calloway, 1 So. 3d at 418. Thus, we find no merit in assignment of
error number one.
13
EXCESSIVE SENTENCE
In a combined argument for assignments of error numbers two and three, the
defendant argues the sentence is unconstitutionally excessive and that the trial court
erred in denying his motion to reconsider sentence. He notes that he has no reported
history of child abuse or a prior criminal history. He further notes that C. M.' s mother
testified that when he was working, he was the sole provider of financial support for
his children. He argues "[ t]he evidence at best shows that he was perhaps neglectful
in failing to buckle his baby into the car seat prior to transporting him," conceding
the jury may have relied on this prong of the statute to convict him. He concludes
that a twenty -five-year sentence for the facts presented in this case is nothing more
than a needless infliction of pain and suffering.
The Eighth Amendment to the United States Constitution and Article I,
Section 20 of the Louisiana Constitution prohibit the imposition of excessive
punishment. Although a sentence may be within statutory limits, it may violate a
defendant' s constitutional right against excessive punishment and is subject to
appellate review. State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979); State v. Honea,
2018- 0018 ( La. App. 1st Cir. 12/ 21118), 268 So.3d 1117, 1120. A sentence is
constitutionally excessive if it is grossly disproportionate to the severity of the
offense or is nothing more than a purposeless and needless infliction of pain and
suffering. A sentence is grossly disproportionate if,when the crime and punishment
are considered in light of the harm done to society, it shocks the sense of justice.
State v. Hurst, 99- 2868 ( La. App. 1 st Cir. 10/ 3100), 797 Sold 75, 83, writ denied,
2000- 3053 ( La. 1015101), 798 So. 2d 962.
Louisiana Code of Criminal Procedure article 894. 1 sets forth the factors for
the trial court to consider when imposing sentence. While the entire checklist of
Article 894. 1 need not be recited, the record must reflect that the trial court
adequately considered the criteria. In light of the criteria expressed by Article 894. 1,
14
a review for individual excessiveness should consider the circumstances ofthe crime
and the trial court' s stated reasons and factual basis for its sentencing decision. State
u Brown, 2002- 2231 ( La. App. 1st Cir. 519103), 849 So. 2d 566, 569. Remand is
unnecessary when a sufficient factual basis for the sentence is shown. State v
Lanclos, 419 So. 2d 475, 478 ( La. 1982); State v Graham, 2002- 1492 ( La. App. 1 st
Cir. 2114103), 845 So. 2d 416, 422.
Whoever commits the crime of second degree cruelty to juveniles shall be
imprisoned at hard labor for not more than forty years. La. R.S. 14: 93. 2.3( C). The
defendant was sentenced to twenty-five years at hard labor, which is less than the
maximum allowed sentence. We note that the injuries suffered by C. M. indicate
physical force was used against him. Just prior to the imposition of sentence, defense
counsel asked the trial court to consider the defendant' s lack of any criminal history,
thus the trial court was aware of that factor. In sentencing the defendant, the trial
court noted its consideration of the sentencing guidelines. The trial court further
noted that the injuries suffered by C. M. were " horrific." The trial court further
stated, "[ a] four -month-old child presents no ability to defend itself, to ask for mercy,
or to remove itself from danger. It is particularly difficult for the Court to understand
how the father of this child could perpetrate such a crime upon his own son." The
court found that during the period of any suspended sentence, the defendant would
present an undue risk of harm to C. M.; that the defendant was in need of correctional
treatment or a custodial environment that could be provided most effectively by his
commitment to an institution; and that a lesser sentence would deprecate the
seriousness of the defendant' s crime. We further note that the the defendant knew
or should have known that the victim of the offense was particularly vulnerable or
incapable of resistance due to extreme youth. See La. Code Crim. P. art. 894. 1
We find that the imposed sentence is not grossly disproportionate to the
15
severity of the offense, and therefore, was not unconstitutionally excessive. Thus,
we find no error in the trial court' s denial of the defendant' s motion to reconsider
sentence. Accordingly, we find no merit in assignments of error numbers two and
three.
CONVICTION AND SENTENCE AFFIRMED.
16