State v. Browhow

945 So. 2d 890, 2006 WL 3615551
CourtLouisiana Court of Appeal
DecidedDecember 13, 2006
Docket41,686-KA
StatusPublished
Cited by8 cases

This text of 945 So. 2d 890 (State v. Browhow) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Browhow, 945 So. 2d 890, 2006 WL 3615551 (La. Ct. App. 2006).

Opinion

945 So.2d 890 (2006)

STATE of Louisiana, Appellee
v.
Chonita BROWHOW, Appellant.

No. 41,686-KA.

Court of Appeal of Louisiana, Second Circuit.

December 13, 2006.
Rehearing Denied January 18, 2007.

*891 Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.

Jerry L. Jones, District Attorney, Fred Royce McGaha, Rosalind D. Jones, Assistant District Attorneys, for Appellee.

Before STEWART, DREW and SEXTON (Pro Tempore), JJ.

DREW, J.

Chonita Browhow was convicted by a jury of one count of attempted cruelty to the infirmed[1] and one count of simple battery. She was sentenced to five years' imprisonment at hard labor on the conviction for attempted cruelty to the infirm and six months' imprisonment on the conviction for simple battery. The court ordered the sentences to be served consecutively. The defendant appeals. We affirm.

*892 FACTS

On May 1, 2002, the defendant, Chonita Browhow, was indicted on one count of cruelty to the infirm for the alleged mistreatment or neglect of Theda Norris and another count of cruelty to the infirm for her mistreatment or neglect of Frances Cole. Both victims were residents at The Arbor House and Terrace, an assisted living facility in West Monroe, Louisiana. Starting in 1998 and until her discharge on January 14, 2002, the defendant was a personal care attendant at the facility and, more specifically, in the Alzheimer's unit of the facility. She worked four days on and three days off on the graveyard shift, which lasted from 11:00 p.m. until 7:00 a.m.

On or about December 24, 2001, Browhow and two other personal care attendants (Stephanie Riggins and Oniece Williams) were trying to dress Frances Cole, who suffered from Alzheimer's disease and was being uncooperative. In her attempts to resist, Cole struck the defendant. Williams and Riggins both testified that, in response, the defendant slapped Cole in the face. When Cole struck back, the defendant slapped her again. When Williams asked the defendant to stop slapping the patient, the defendant left the room.

A week later, on the night of either December 31, 2001, or January 1, 2002, Riggins again worked the graveyard shift with the defendant. According to Riggins, on this particular evening the defendant was caring for Theda Norris, an 81-year-old, non-ambulatory Alzheimer's patient. When Riggins first observed the defendant that evening, she was preparing to give Norris a shower. Sometime later, she observed the defendant standing by the facility's back door, which led to an open-air enclosure. Occupants of this enclosure were exposed to the elements but still securely within the facility. Riggins asked the defendant where Norris was and was told that she was outside. When Riggins asked why Norris was outside, the defendant responded that it was because she had been "acting a fool." Riggins proceeded with her duties and about 15 minutes later observed the defendant bringing Norris back inside. Riggins testified that Norris was in a wheelchair with her head down and her arms crossed in front of her and was wearing only flannel pajamas. Riggins testified that it was very cold on that particular evening. While none of the witnesses unequivocally testified that Norris was unable to walk, Riggins and the facility's administrator, Betty Grice, both testified that her condition would have prevented her from finding her way outside on her own or back inside on the evening in question.

Neil Shaw, a meteorologist, testified that the average ambient temperature between 10:00 p.m. on December 31, 2001, and 2:00 a.m. on January 1, 2002, was 29 degrees Fahrenheit. During the same time frame on the night of January 1, 2002, and early morning of January 2, 2002, the average ambient temperature was 32 degrees Fahrenheit.

After a one-day trial in January 2006, the jury returned a responsive verdict of attempted cruelty to Norris and a responsive verdict of simple battery of Cole. The trial court then ordered the preparation of a pre-sentence investigation report, and the defendant's sentencing was taken up on May 8, 2006.

At sentencing, the trial court noted that:

• it had reviewed the pre-sentence investigation report containing the defendant's social, educational, work, family, and criminal histories;
• it also considered the guidelines set forth in La. C. Cr. P. art. 894.1;
*893 • the only applicable mitigating factor set forth therein was the defendant's lack of a prior criminal history;
• the defendant had two teenage sons residing with her at the time of sentencing;
• the defendant manifested deliberate cruelty to victims, whom the defendant knew to be particularly vulnerable due to their advanced age and infirmity;
• the defendant abused her position in that she violated the trust placed in her by the victims' families who looked to the defendant to care for their loved ones;
• the defendant was afforded an opportunity to make a statement for the pre-sentence investigation report but declined to do so; and
• the defendant was also afforded an opportunity to address the court at the sentencing hearing, but declined to do so.

Finding that the defendant was in need of correctional treatment, and that a lesser sentence would deprecate the seriousness of the crime, the trial court sentenced the defendant to serve five years' imprisonment at hard labor on the count of attempted cruelty to the infirm and six months' imprisonment on the count of simple battery, with the sentences to be served consecutively. After the trial court rejected the defendant's motion to reconsider the sentences, the defendant perfected this appeal, asserting two assignments of error.

Sufficiency of Evidence

The defendant argues that the evidence was insufficient to show that Theda Norris had experienced any pain or suffering as a result of being placed outside by the defendant. Without proof of any pain or suffering, the defendant contends that there is insufficient evidence to support the conviction for attempted cruelty to the infirm.

The state counters by pointing to the evidence of the ambient temperature of 29 degrees Fahrenheit on the evening that the defendant placed Norris outside in her wheelchair clothed only in her pajamas. It also contends that the testimony regarding Norris' appearance when she was brought back inside with her head down and arms crossed supports the conclusion that the defendant had inflicted suffering.

La. R.S. 14:93.3(A) provided at the time of the crime:

Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.

La. R.S. 14:27(A) provided at the time of the crime:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

"Unjustifiable," within the meaning of La R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
945 So. 2d 890, 2006 WL 3615551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-browhow-lactapp-2006.