State v. Dixon

852 So. 2d 471, 2003 WL 21276503
Louisiana Court of Appeal·Decided June 4, 2003·No. No. 03-160·Published·Cited by 4 cases

Opinion

I THIBODEAUX, Judge.

The Defendant, Joseph Michael Dixon, appeals his conviction of second degree cruelty to juveniles, La.R.S. 14:93.2.3, and his sentence of thirty years at hard labor. He asserts that the sentence imposed was excessive in comparison to the nine year sentence imposed on the co-defendant, the mother of the juvenile. Additionally, he maintains that the trial court erred in determining the competency of the child witness, and the sufficiency of the evidence.

For the following reasons, we affirm.

LAW AND DISCUSSION

Sufficiency of the Evidence

Louisiana Revised Statutes 14:93.2.3 provides in pertinent part:

A. (1) 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.
(2) For purposes of this Section, “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.

At trial, the victim, J.E.,1 testified. The victim stated that he was seven years old and lived in South Carolina with his mom and dad, Tonya and Michael Ballard. The victim testified that he used to live in Marksville with his “real mama,” O. E., and his “step daddy,” Joseph Michael Dixon. When asked if Joseph Michael Dixon was in the courtroom, the victim pointed to the Defendant. According to the victim, he lived in the same house with the Defendant between January and March 1?2002. While living in the same house, the Defendant whipped the victim with an extension cord on the victim’s buttocks, legs, back, and neck. The Defendant made the victim take off his pants and whipped the victim underneath his clothing. When asked how many times this occurred, the victim replied, “[tjwice.” According to the victim, he bled when he was hit with the extension cord.

The victim further testified that the Defendant hit him in the ankle with a walking cane. When asked if the Defendant ever hit him with his fist or his hand, the victim stated that the Defendant hit him with a fist in his stomach and back. When the Defendant hit him in the stomach, the victim’s breath was knocked out of him. The Defendant also held the victim up by his ankles and dropped him to the floor, causing the victim’s stomach and lip to hit the floor. When asked if he bled or got a “busted lip,” the victim replied, ‘Tes, ma'am.” ■

The State asked the victim if he started to bleed or “anything” when he was hit with the walking cane or extension cord. The victim replied, “No, ma‘am. The extension cord.” When the State asked the victim to tell about the extension cord, the victim replied, “When he had hit me it [473] started bleeding.” According to the victim, the bleeding occurred only once, and pictures were taken of his wounds. The victim identified S B as a picture of his legs. The picture shows the victim’s legs with red marks, bruising, and opened wounds. We note that one of the wounds in the photograph looks as though it was bleeding. When asked how “it” felt, the victim replied, “Bad.” The victim also stated that the injuries lasted for more than one month and were present even after he moved to South Carolina.

Next, the victim identified a photograph which showed bruising and what appeared to be (although it is hard to tell) wounds or abrasions on the victim’s buttocks. (State’s Exh. 4). When asked if “this” happened just once or over several | ¡¡times, the victim replied, “Several times.” He also testified that Michael Dixon, the Defendant, did “this” to him with an extension cord.

State’s Exhibit 5 was identified by the victim as a picture of his knees, which appeared to be bruised and swollen. When the State asked the victim what happened to his knees,' the victim answered, “He hit me with his cane on my knee.” The victim testified that it hurt, his knees were swollen, and his walking was affected for one day. State’s Exhibit 6, the victim testified, was a photograph of his neck. According to the victim, “He hit me with the extension cord on my neck.”

Finally, the victim identified S-7 as a photograph of the back of his leg showing wounds and a bandaged area. The victim testified that there was a big sore on his leg that had a bandage on it. When asked how he received the big sore, the victim replied, “He had whipped me with an extension cord.”

The State asked the victim to show the jury where he still had a scar. The court noted that the victim was pointing to his right rear leg just above the knee. The victim also showed the jury other scars on his back that he stated were caused by Michael Dixon hitting him with an extension cord. When asked if he had scars anywhere else, the victim pointed to his behind and stated that his scars were caused by Joseph Michael Dixon hitting him with an extension cord. According to the victim, no one else put scars on him.

On cross, the victim remembered talking with Detective Herbert Guillot of the Marksville Police Department. When asked if he remembered telling Detective Guillot that someone else, besides Michael Dixon, hit him with an extension cord, the victim replied “Yes, sir,” and named his “mama.” According to the victim, his mother hit him one time, but at a different time than Michael Dixon hit him. The victim also stated that his mother made him take his clothes off. When asked if he 14remembered talking with Detective Guil-lot about his aunt and some movies, the victim replied that he did, however, he did not remember whether or not being hit with the extension cord had anything to do with his aunt or the movies. Defense counsel asked the victim if being hit with the extension cord had anything to do with someone showing him something nasty, and the victim replied, “No, sir-.” Although at trial, the victim denied having a cousin that “did something” to him, he remembered previously saying that he did.

When asked on re-direct whether the Defendant ever told him to say something else happened to him, the victim responded, “That was my mama ... [tjhat’s what my mama say.” The victim also testified that his mother did not make him bleed when she hit him with the extension cord, but Michael Dixon did.

Shawn Davis, a Child Protection Investigator, testified that the victim was seven [474] years old while the Defendant was age thirty-eight. She also testified that the Defendant was the victim’s stepfather. Ms. Davis saw the victim’s injuries on March 1, 2002, and identified the photographs introduced as fair representations of the victim’s injuries at that time. According to Ms. Davis, the Emergency Room at Avoyelles Hospital reported this incident.

On cross, defense counsel asked Ms. Davis if she questioned the Defendant as to why he whipped the victim. Ms. Davis stated that she did ask the Defendant and “[he] stated that the child was bad and, you know, he just was bad, you know, a bad child. And that was his method of disciplining him.”

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State v. Dixon, 852 So. 2d 471, 2003 WL 21276503 (La. Ct. App. 2003).

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