- A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child’s health or well-being is jeopardized.
- Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.
- Any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.
- Any person commits the offense of cruelty to children in the third degree when:
- Such person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery; or
- Such person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.
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- A person convicted of the offense of cruelty to children in the first degree as provided in this Code section shall be punished by imprisonment for not less than five nor more than 20 years.
- A person convicted of the offense of cruelty to children in the second degree shall be punished by imprisonment for not less than one nor more than ten years.
- A person convicted of the offense of cruelty to children in the third degree shall be punished as for a misdemeanor upon the first or second conviction. Upon conviction of a third or subsequent offense of cruelty to children in the third degree, the defendant shall be guilty of a felony and shall be sentenced to a fine not less than $1,000.00 nor more than $5,000.00 or imprisonment for not less than one year nor more than three years or shall be sentenced to both fine and imprisonment.
(Ga. L. 1878-79, p. 162, § 3; Code 1882, § 4612h; Penal Code 1895, § 708; Penal Code 1910, § 758; Code 1933, § 26-8001; Code 1933, § 26-2801, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1978, p. 228, § 1; Ga. L. 1981, p. 683, § 1; Ga. L. 1995, p. 957, § 2; Ga. L. 1996, p. 1071, § 1; Ga. L. 1999, p. 381, § 6; Ga. L. 2004, p. 57, § 3.)
Cross references.
You are viewing: What Is Cruelty To Child 2nd Degree
– Televising testimony of child who is victim of offense under subsection (b) of this Code section, § 17-8-55.
Requirements regarding reporting instances of child abuse, § 19-7-5.
Administration of corporal punishment in schools, §§ 20-2-731,20-2-732.
Editor’s notes.
– Ga. L. 1995, p. 957, § 1, not codified by the General Assembly, provides: “This Act shall be known and may be cited as the ‘Child Protection Act of 1995’.”
Ga. L. 1999, p. 381, § 1, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Crimes Against Family Members Act of 1999’.”
Ga. L. 1999, p. 381, § 7, not codified by the General Assembly, provides that: “Nothing herein shall be construed to validate a relationship between people of the same sex as a ‘marriage’ under the laws of this State.”
Ga. L. 2004, p. 57, § 1, not codified by the General Assembly, provides that: “The General Assembly seeks to protect the well-being of this state’s children while preserving the integrity of family discipline. The General Assembly believes that balancing the protection of the health and safety of this state’s children, while preserving a parent’s right to discipline his or her child, is important to all Georgians and vital to the safety of this state’s children.”
Ga. L. 2004, p. 57, § 6, not codified by the General Assembly, provides that the amendment by that Act shall apply to all crimes which occur on or after July 1, 2004.
Law reviews.
– For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, “New Challenges for the Georgia General Assembly: Survey of Child Endangerment Statutes,” see 7 Ga. St. B. J. 8 (2001). For article on 2004 amendment of this Code section, see 21 Ga. St. U. L. Rev. 45 (2004). For note on 1999 amendment to this Code section, see 16 Ga. St. U. L. Rev. 72 (1999).
JUDICIAL DECISIONS
ANALYSIS
- General Consideration
- Application
- Merger with Other Offenses
- Jury Instructions
- Procedural Issues
General Consideration
Former Code 1933, § 26-2801 was constitutional. Williams v. State, 144 Ga. App. 130, 240 S.E.2d 890 (1977).
Former Code 1933, § 26-2801 was not void for vagueness. Davis v. State, 234 Ga. 730, 218 S.E.2d 20 (1975); Caby v. State, 249 Ga. 32, 287 S.E.2d 200 (1982); Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1408, 149 L. Ed. 2d 350 (2001).
Statute is not void for overbreadth.
– O.C.G.A. § 16-5-70 is clearly not void for overbreadth. It is not designed to reach legitimate child-rearing functions, nor could it reasonably be so construed. Caby v. State, 249 Ga. 32, 287 S.E.2d 200 (1982).
Amendment to O.C.G.A.
§ 16-5-70 did not decriminalize conduct. – An amendment to O.C.G.A. § 16-5-70 did not decriminalize the conduct with which the defendants were charged. The result of the amendment was simply to move the language formerly found in § 16-5-70(c) to § 16-5-70(d) and to change the conduct described therein from second-degree to third-degree child cruelty. Hafez v. State, 290 Ga. App. 800, 660 S.E.2d 787 (2008).
No civil cause of action created by violation of statute.
– Because O.C.G.A. § 16-5-70 is a criminal statute, and the violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who was injured thereby, the court declined to find such a private right of action after the plaintiff failed to direct the court to an instance in which the statute had been used to create such a private cause of action. Chisolm v. Tippens, 289 Ga. App. 757, 658 S.E.2d 147 (2008), cert. denied, 129 S. Ct. 576, 172 L. Ed. 2d 431 (2008).
Meaning of “sustenance” as used in section.
– “Sustenance” is that which supports life – food, victuals, provisions. O.C.G.A. § 16-5-70, in use of word “sustenance,” means that necessary food and drink which is sufficient to support life and maintain health. Caby v. State, 249 Ga. 32, 287 S.E.2d 200 (1982); State v. Lawrence, 262 Ga. 714, 425 S.E.2d 280 (1993).
Malice defined.
– Malice, in the legal sense, imports the absence of all elements of justification, excuse and the presence of an actual intent to cause the particular harm produced, or the wanton or wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558 (1995), rev’d on other grounds, 266 Ga. 160, 465 S.E.2d 668 (1996).
“Malice,” for purposes of O.C.G.A. § 16-5-70, imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and willful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Hill v. State, 243 Ga. App. 614, 533 S.E.2d 779 (2000).
Term “maliciously” is of such obvious significance and common understanding as to need no definition by the judiciary. Gaddis v. State, 176 Ga. App. 526, 336 S.E.2d 587 (1985).
Actual knowledge of an injury is not a required element of malice under O.C.G.A. § 16-5-70. Barry v. State, 214 Ga. App. 418, 448 S.E.2d 243 (1994).
“Unreasonable” as element of “cruel or excessive” pain.
– Implicit in the statutory definition of “cruel or excessive” pain is the element of unreasonableness. Boyce v. State, 198 Ga. App. 371, 401 S.E.2d 578 (1991), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).
Stepfather clearly falls within scope of former Code 1933, § 26-2801. Morrow v. State, 155 Ga. App. 574, 271 S.E.2d 707 (1980).
Father of illegitimate child within scope of section.
– Evidence supported the conviction of a father for cruelty to his four-year-old illegitimate son by depriving him of necessary sustenance. Strickland v. State, 211 Ga. App. 48, 438 S.E.2d 161 (1993).
Permissible inference from evidence that victim was battered child.
– Evidence that victim was a battered child, coupled with proof that child was in sole custody of parent, may well permit jury to infer not only that child’s injuries were not accidental, but that they occurred deliberately, at hands of parent. United States v. Bowers, 660 F.2d 527 (5th Cir. 1981).
Defendant’s intent is a question of fact to be determined upon consideration of “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted” under O.C.G.A. § 16-2-6, and the jury’s finding is not to be set aside unless clearly erroneous. McGahee v. State, 170 Ga. App. 227, 316 S.E.2d 832 (1984).
Alford plea to cruelty to children required registration as sexual offender.
– As a defendant entered an Alford plea to two counts of cruelty to children by committing the acts alleged in the indictment, defendant acknowledged touching the breast and buttocks of the 14-year-old victim and although the defendant did not plead guilty to a sexual offense, the defendant pled guilty to conduct which, by its nature, was a sexual offense against a minor. Therefore, the defendant was required to register as a sexual offender under O.C.G.A. § 42-1-12(e)(1). Morrell v. State, 297 Ga. App. 592, 677 S.E.2d 771 (2009).
Conviction used to enhance federal sentence.
– In a case in which defendant was sentenced to 18 months of imprisonment for violating 8 U.S.C. § 1326(a) and (b)(2), the district court did not err in applying the eight-level aggravated-felony enhancement in U.S. Sentencing Guidelines Manual (USSG) § 2L1.2(b)(1)(C), rather than the four-level other felony enhancement in USSG § 2L1.2(b)(1)(D), based on defendant’s prior state guilty plea to three counts of cruelty to children in violation of O.C.G.A. § 16-5-70. The plea documents showed that defendant pled to maliciously causing cruel and excessive mental pain by, among other things, blatant use of force: threatening to hit a child. United States v. Castillo-Villagomez, F.3d (11th Cir. Nov. 4, 2008)(Unpublished).
Improper sentence.
– Despite enumerating such as error, a five-year concurrent sentence imposed against the defendant upon a conviction of misdemeanor cruelty to children was reversed, and the case was remanded for resentencing, as it was not authorized by law. Price v. State, 281 Ga. App. 844, 637 S.E.2d 468 (2006).
Sentence proper.
– Defendant failed to demonstrate that the defendant’s sentence of ten years for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c), and contributing to the deprivation of a minor, O.C.G.A. § 16-12-1(b)(3), were unlawful because the trial court found that the defendant’s defense was based upon lies and asserted in bad faith; the sentences were within the statutory limits for each of the crimes for which the defendant was convicted pursuant to O.C.G.A. §§ 16-5-70(e)(2) and16-12-1(b). Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362 (2011).
Probation revocation for cruelty to children.
– Defendant’s probation was properly revoked as the defendant committed the offense of cruelty to children by maliciously causing the defendant’s own daughter cruel or excessive physical or mental pain because the evidence showed that, when the defendant’s daughter was four and five years old, the defendant frequently disciplined the child by whipping the child’s arms and back with a belt or stick and then locking the child in a dark closet for up to 10 minutes; the child was afraid of the dark and would beat on the closet door and scream and cry to be released from the closet; and, when the child was six, the child attempted to commit suicide to avoid being hurt by the defendant anymore, and because the child was scared of the defendant. Haji v. State, 331 Ga. App. 116, 769 S.E.2d 811 (2015).
Rule of lenity did not apply.
– Rule of lenity did not require that the defendant receive the lesser punishment for the two counts of cruelty to children against the defendant because, although the jury could have found the defendant guilty of the third degree of the offense, based on the violent attack the defendant waged against the adult victim in the child victims’ presence, the evidence authorized the jury to find the additional element required for the second degree of the offense, that is, that the defendant’s conduct caused the child victims to suffer cruel and excessive mental pain as alleged in the indictment; consequently, the rule of lenity did not require that the defendant be punished only for the third degree of the offense. White v. State, 319 Ga. App. 530, 737 S.E.2d 324 (2013).
Trial court did not err by not applying the rule of lenity in sentencing the defendant on cruelty to children in the first degree, rather than in the third degree as a review of the statute and the indictment revealed that the counts did not address the same criminal conduct as first degree required proof of malice and suffering of excessive mental pain, while third degree required only that the perpetrator do an act with knowledge that a minor child was present and can see or hear the act. Gonzalez v. State, 352 Ga. App. 83, 833 S.E.2d 727 (2019).
Cited in Newton v. State, 127 Ga. App. 64, 192 S.E.2d 526 (1972); Harmon v. State, 133 Ga. App. 720, 213 S.E.2d 23 (1975); Murray v. State, 135 Ga. App. 264, 217 S.E.2d 293 (1975); Williams v. State, 239 Ga. 50, 235 S.E.2d 386 (1977); Polk v. State, 142 Ga. App. 785, 236 S.E.2d 926 (1977); Lister v. State, 143 Ga. App. 483, 238 S.E.2d 591 (1977); Edwards v. State, 146 Ga. App. 604, 247 S.E.2d 158 (1978); Crawford v. State, 148 Ga. App. 523, 251 S.E.2d 602 (1978); Brewer v. State, 156 Ga. App. 468, 274 S.E.2d 817 (1980); Brown v. State, 173 Ga. App. 264, 326 S.E.2d 2 (1985); Owens v. State, 173 Ga. App. 309, 326 S.E.2d 509 (1985); Daniel v. State, 179 Ga. App. 54, 345 S.E.2d 143 (1986); Hendrick v. State, 257 Ga. 514, 361 S.E.2d 169 (1987); Dudley v. State, 197 Ga. App. 877, 399 S.E.2d 747 (1990); Remine v. State, 203 Ga. App. 30, 416 S.E.2d 326 (1992); Reyes v. State, 250 Ga. App. 769, 552 S.E.2d 918 (2001); Williams v. State, 261 Ga. App. 410, 582 S.E.2d 556 (2003); King v. State, 282 Ga. 505, 651 S.E.2d 711 (2007); Newsome v. State, 289 Ga. App. 590, 657 S.E.2d 540 (2008); Payne v. State, 290 Ga. App. 589, 660 S.E.2d 405 (2008), overruled on other grounds by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019); Lemming v. State, 292 Ga. App. 138, 663 S.E.2d 375 (2008); Mazza v. State, 292 Ga. App. 168, 664 S.E.2d 548 (2008); Yearwood v. State, 297 Ga. App. 633, 678 S.E.2d 114 (2009); Hayes v. State, 298 Ga. App. 338, 680 S.E.2d 182 (2009); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013); Floyd v. State, 342 Ga. App. 438, 803 S.E.2d 597 (2017); Walker v. State, 348 Ga. App. 273, 821 S.E.2d 567 (2018); Naples v. State, 308 Ga. 43, 838 S.E.2d 780 (2020); Caldwell v. State, 355 Ga. App. 608, 845 S.E.2d 345 (2020).
Application
Whipping of child.
– Cruelty to children applies where a girl of 14 years of age was whipped for several hours, accompanied by abusive language. Stone v. State, 1 Ga. App. 292, 57 S.E. 992 (1907).
Evidence that a six-year-old victim was spending the night at the defendant’s house when the defendant became angry because the victim broke a pair of glasses and whipped the victim with a telephone cord, leaving wounds on the victim’s back, buttocks, thighs, and groin, was sufficient to support the defendant’s conviction of first-degree child cruelty in violation of O.C.G.A. § 16-5-70. Chambers v. State, 313 Ga. App. 39, 720 S.E.2d 358 (2011).
Sufficient evidence of malice.
– Father acted maliciously in causing his children to suffer cruel or excessive mental pain when he repeatedly stabbed the children’s mother in their presence, transported the wounded mother and children to a deserted place, and abandoned them there. Sims v. State, 234 Ga. App. 678, 507 S.E.2d 845 (1998).
Sufficient evidence supported the conviction of cruelty to children in violation of O.C.G.A. § 16-5-70(b) because defendant did not obtain treatment for the child, who had a broken arm and two broken legs for three days; defendant knew both the cause of the child’s injuries, abuse at the hands of defendant’s love interest, and the severity of those injuries, as the child cried when the child’s legs were touched, and this was sufficient to support a finding of willful and wanton inaction. Withrow v. State, 275 Ga. App. 110, 619 S.E.2d 714 (2005).
Defendant’s conviction for cruelty to children under O.C.G.A. § 16-5-70(b) arising out of the repeated rape of the defendant’s 11-year-old child was supported by sufficient evidence that the child pleaded for help during the period specified in the indictment; from the testimony of a neighbor, the jury could have inferred that the child screamed during the rapes, that the defendant was at home at the time and failed to intervene, that the defendant told the child that it would be over, and that these events took place after the rapist was released from jail and before the rapist’s arrest, which corresponded with the time period specified in the indictment. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).
There was sufficient evidence of malice to convict defendant of first degree cruelty to children under O.C.G.A. § 16-5-72(b) because the minor daughter of defendant’s girlfriend had an untreated second degree burn on her leg, as well as numerous bruises on her body, and defendant failed to obtain medical care for the child. Garrett v. State, 300 Ga. App. 391, 685 S.E.2d 355 (2009).
Murder of mother in front of child.
– Evidence supported defendant’s conviction of cruelty to a child because defendant pointed a loaded revolver at the victim and pulled the trigger twice, while driving, fatally wounding the victim; the victim’s two-year-old child was also in the car, defendant did not call9-1-1 from defendant’s cell phone, drove past a hospital, and the revolver had a hammer block, preventing the revolver from firing unless pressure was applied to the trigger. Reed v. State, 279 Ga. 81, 610 S.E.2d 35 (2005).
Father’s repeated stabbing of the children’s mother in the children’s presence supported a finding that the father was guilty of cruelty to his children. Sims v. State, 234 Ga. App. 678, 507 S.E.2d 845 (1998).
There was sufficient evidence to support the defendant’s convictions of malice murder, felony murder, aggravated assault, cruelty to children in the first degree, and possession of a firearm in the commission of a felony when the defendant waited for the victim at the victim’s house, drove with the victim and the victim’s 10-year-old child to a rural road and stopped, displayed a gun and refused to allow the victim to leave, and drove to the home of the defendant’s child, where the defendant shot the victim in front of the victim’s child. Dalton v. State, 282 Ga. 300, 647 S.E.2d 580 (2007).
There was sufficient evidence to support the defendant’s conviction for third-degree child cruelty based on the evidence adduced at trial that the defendant beat and stabbed the defendant’s spouse in front of the defendant’s children and other witnesses. Dunn v. State, 292 Ga. 359, 736 S.E.2d 392 (2013).
Evidence was sufficient to convict the defendant of two counts of cruelty to children in the third degree because, although the defendant alleged that the defendant was unaware that the children were present outside when the defendant shot the victim, the children’s mother, as the children had followed the defendant without the defendant’s knowledge, the evidence showed that the defendant was playing with the children in the living room near the front door immediately before the defendant followed the victim out the door, and that the shooting took place in the front yard, just feet from the apartment. Dennard v. State, 305 Ga. 463, 826 S.E.2d 61 (2019).
Murder of grandparent in front of child.
– Evidence was sufficient to support the defendant’s conviction for cruelty to children because, after the entry of a family violence protective order, the defendant purchased a knife with a large blade, followed the victim, who was the defendant’s estranged spouse, and attempted to talk with the victim, appeared at a grocery store where the victim was, yelled at the victim, and stabbed and slashed the victim multiple times, resulting in the victim’s death in the presence of the victim’s grandson. Weaver v. State, 288 Ga. 540, 705 S.E.2d 627 (2011).
Insufficient evidence that grandson heard grandfather murder grandmother.
– Ambiguous statement from the grandson that “something just told” the grandson to go downstairs, without more, did not establish that the grandson heard the act of the defendant murdering the defendant’s spouse to constitute the underlying offense of cruelty to children; thus, that conviction could not be sustained on appeal. McCluskey v. State, 307 Ga. 740, 838 S.E.2d 270 (2020).
Insufficient evidence of malice.
– Trial court erred in denying defendant’s motion for a directed verdict on the charge of cruelty to children, as there was insufficient evidence to support the finding that defendant acted with the malicious intent to cause the minor victim mental pain when defendant had a sexual relationship with the victim; the charge required more than the fact of a sexual relationship with victim. Hightower v. State, 256 Ga. App. 793, 570 S.E.2d 22 (2002).
Conviction required reversal because evidence was improperly excluded.
– During a trial for felony murder while in the commission of cruelty to a child arising from the death of a defendant’s child from brain trauma sustained while the child was in the defendant’s care, the defendant was improperly prevented from cross-examining a person who was in the apartment at the time about the person’s history of inappropriate behavior toward the person’s own child, including allegations of child abuse, because it was a crucial element of the defense that the person was a likely suspect, and, under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6), the circumstantial evidence did not exclude the reasonable hypothesis that the person was the likely culprit; the defendant’s conviction required reversal because it was not highly improbable that the jury’s verdict would have been different if the evidence had been admitted, and the error therefore could not be considered harmless. Scott v. State, 281 Ga. 373, 637 S.E.2d 652 (2006).
Oxygen is not a “necessary sustenance” within the context of O.C.G.A. § 16-5-70(a). State v. Lawrence, 262 Ga. 714, 425 S.E.2d 280 (1993).
Blaming another child for injuries.
– After defendant shot defendant’s two-year old child and blamed the shooting on defendant’s four-year-old child, blaming the child for such a violent act against a loved one which resulted in the child manifesting observable psychological pathology could have authorized the jury to conclude that defendant inflicted on the child mental pain which was unreasonably cruel or excessive. Boyce v. State, 198 Ga. App. 371, 401 S.E.2d 578 (1991), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).
Cruel and excessive mental pain.
– Jury was entitled to conclude beyond a reasonable doubt that the defendant’s two children suffered “cruel and excessive mental pain” when they watched their parent murder another sibling and that the defendant maliciously caused this pain by wantonly and wilfully shooting the defendant’s child with the awareness of a plain and strong likelihood that such harm would result. Hall v. State, 261 Ga. 778, 415 S.E.2d 158 (1991), cert. denied, 505 U.S. 1205, 112 S. Ct. 2993, 120 L. Ed. 2d 870 (1992).
Since the cruelty to children charge which was brought against the defendant was not based on battery and reckless conduct counts with which the defendant was also charged, but on the basis of the defendant’s causing the defendant’s small child “cruel and excessive mental pain by hitting, beating, and striking” the child’s mother, the various charges did not contain the same elements, and an acquittal of the battery and reckless conduct charges did not require an acquittal on the child cruelty charge. Turney v. State, 235 Ga. App. 431, 509 S.E.2d 670 (1998).
Evidence was sufficient to sustain defendant’s conviction for cruelty to children by proof defendant caused excessive mental pain by raping defendant’s own daughter. Alford v. State, 243 Ga. App. 212, 534 S.E.2d 81 (2000).
Sufficient evidence supported defendant’s cruelty to children conviction as: (1) a determination of what constituted excessive mental pain need not depend solely on the victim’s testimony; and (2) testimony from the victim’s parent, grandparent, a detective, and a forensic interviewer testified about the incident, that the victim became upset when the victim talked about it, and was undergoing counseling to help cope with it. Keith v. State, 279 Ga. App. 819, 632 S.E.2d 669 (2006).
Defendant’s conviction for cruelty to children under O.C.G.A. § 16-5-70(b) arising out of the repeated rape of the defendant’s 11-year-old child was supported by sufficient evidence that the child suffered from excessive mental pain caused, at least in part, by the defendant’s refusal to heed the child’s outcries; from the testimony of a neighbor, the jury could have found that the child screamed during the rapes, that the defendant was at home at the time and did not intervene, and that the defendant told the child that it would be over. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).
Because there was testimony that a 14-month-old child died from multiple blunt force traumas while in the defendant’s care, there was no merit to the defendant’s contention that the evidence was insufficient to establish the pain element of cruelty to children; evidence of a child’s age, the extent of injuries, the nature of the assault to which the child was subjected, and the force with which the child was struck was sufficient evidence from which a jury could conclude whether the defendant caused the child cruel or excessive physical pain. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008).
Trial court did not err in admitting the victim’s testimony that just prior to trial, the victim had attempted suicide due to the stress caused by the molestation because this evidence was proper to show the excessive physical or mental pain needed for a cruelty-to-children conviction under O.C.G.A. § 16-5-70(b); the defendant’s complaint that too much time had passed since the incidents to allow a jury to infer that the attempted suicide resulted from stress caused by the incidents was a matter for the jury to resolve. Bradberry v. State, 297 Ga. App. 679, 678 S.E.2d 131 (2009).
There was sufficient evidence to support a defendant’s conviction for cruelty to children because, after the defendant inappropriately touched the defendant’s 16-year-old daughter in bed, the daughter fled to her boyfriend’s house where she “couldn’t talk” and was “shaking” and “hysterically crying.” She had not spoken to her father since the incident, and for months after the incident, and when the daughter began speaking about the incident (which was rare), she began shaking. Cline v. State, 300 Ga. App. 615, 685 S.E.2d 501 (2009).
Evidence was sufficient to support a jury’s finding that a defendant’s acts of molestation caused the child victims, ages 7 and 9, cruel and excessive mental pain for purposes of the child cruelty statute, O.C.G.A. § 16-5-70(b), given evidence of school problems and aggressiveness and one victim’s testimony that the victim was sad and uncomfortable. Bunn v. State, 307 Ga. App. 381, 705 S.E.2d 180 (2010), aff’d, 291 Ga. 183, 728 S.E.2d 569 (2012).
Trial court did not err in convicting the defendant of cruelty to children in the first degree, O.C.G.A. § 16-5-70(b), because a jury could infer from the evidence that the defendant maliciously intended to cause the victim cruel and excessive mental pain; the evidence showed that the defendant hid in the girls’ bathroom with a knife, duct tape, and a camera, laid in wait for a young lady to come in, and then held the 12-year-old victim in a bathroom stall against her will as she screamed continuously for help, during which time the defendant tried to tear off a piece of duct tape and held a knife. Kirt v. State, 309 Ga. App. 227, 709 S.E.2d 840 (2011).
Evidence was sufficient to support the defendant’s conviction for cruelty to children in the second degree because there was more than sufficient evidence from which the jury could infer that the defendant’s children had suffered cruel and excessive mental pain as a result of the patently unhealthy, filthy, and dangerous conditions in which the children were forced to live; the state presented overwhelming evidence of the filthy and neglected conditions of the children, the children’s significant developmental delays, one child’s confinement to a urine and feces-stained crib without a diaper, and the fact that another child was locked in a urine-soiled bedroom without access to a toilet. Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362 (2011).
Evidence was sufficient to convict the defendant of cruelty to children in the second degree because the jury was authorized to conclude that the presence of an unembalmed corpse in the minor children’s home for nearly three days was a criminally negligent act constituting an unsanitary condition and to infer from the reaction of the police officers that the resulting stench caused the children excessive mental pain; neither an incomplete understanding by the children nor an absence of physical symptoms, such as vomiting, would preclude the internal experience of excessive mental pain. Walden v. State, 289 Ga. 845, 717 S.E.2d 159 (2011).
Cruel or excessive physical or mental pain.
– Evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant caused the child cruel or excessive physical or mental pain by squeezing the child and causing serious abdominal injuries to the child and by failing to seek medical treatment for the fractured bones in both arms suffered by the child while the defendant and the child’s parent were jointly caring for the child. Sabbs v. State, 248 Ga. App. 114, 545 S.E.2d 671 (2001).
Sufficient evidence supported the defendant’s conviction of cruelty to children in the first degree under O.C.G.A. § 16-5-70(b) as the victim testified that the victim saw the defendant shake their two-year-old child in a rage, that the victim was attacked by the defendant and two companions in the child’s presence, and that the child, after the incident, just stared and looked into space. Souder v. State, 281 Ga. App. 339, 636 S.E.2d 68 (2006), cert. denied, No. S07C0113, 2007 Ga. LEXIS 97 (Ga. 2007); overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
After the defendant’s 11-month-old child was seriously burned by extremely hot bath water, the defendant delayed calling for emergency medical assistance for over an hour; this evidence was sufficient to authorize a rational trier of fact to find that the defendant maliciously caused the child cruel and excessive physical and mental pain by failing to promptly provide medical attention and treatment to the child. Williams v. State, 285 Ga. App. 628, 647 S.E.2d 324 (2007).
Defendant’s argument that there was no evidence that the child victim suffered cruel or excessive physical or mental pain was rejected as: (1) a doctor testified that the victim’s injuries were caused by “something with a lot of force that sheared at the same time”; (2) the victim had a bruised labia majora and a cut to the hymen that looked as if the cut had been bleeding at one time; (3) due to the defendant’s warning, the child became visibly upset upon telling the mother about the charged incidents; and (4) in the days before the victim reluctantly told the mother about the abuse, the child was nervous and was not sleeping or eating well. Cortez v. State, 286 Ga. App. 170, 648 S.E.2d 488 (2007).
Sufficient evidence supported the defendant’s cruelty to children convictions because, although the evidence did not show that the defendant had personally caused the bone fractures on the child, the evidence authorized findings that multiple bone fractures were being inflicted upon the young child over the course of about 13 months, that caused the child manifest physical pain, that the defendant was aware of the bone fractures while in the defendant’s care or the father’s care, and failed to intervene. Morast v. State, 323 Ga. App. 808, 748 S.E.2d 287 (2013).
Denial of necessary and appropriate medical care can, under O.C.G.A. § 16-5-70(b), constitute cruelty to a child when it causes the child “cruel or excessive physical or mental pain” but it does not constitute a denial of “sustenance,” which is the offense proscribed in O.C.G.A. § 16-5-70(a). Howell v. State, 180 Ga. App. 749, 350 S.E.2d 473 (1986).
Evidence of malice necessary to sustain conviction under O.C.G.A. § 16-5-70(b), the cruelty to children statute, was shown where evidence established that the babysitter made a deliberate decision not to seek immediate medical care while knowing the infant needed it but instead spent approximately 90 minutes trying to contact the infant’s parents to inform them of infant’s grave medical condition. Hoang v. State, 250 Ga. App. 403, 551 S.E.2d 813 (2001).
Sufficient evidence existed to uphold defendant’s conviction for cruelty to children and felony murder predicated on that offense with regard to the birth of a premature infant by the defendant’s 10-year-old step-daughter as a result of sexual molestation of the step-daughter by the defendant, which infant, after receiving no medical attention, died within a few hours of birth; failure to seek timely medical care for a child may form the basis for the offense of cruelty to children and the jury could reasonably have inferred that, as a result of the defendant’s refusal to allow the baby to seek medical care, the baby suffocated to death and suffered cruel and excessive pain. Grayer v. State, 282 Ga. 224, 647 S.E.2d 264 (2007).
Although the evidence was sufficient to convict of first degree cruelty to children under O.C.G.A. § 16-5-72(b) because the minor daughter of defendant’s girlfriend had an untreated second degree burn on her leg, as well as numerous bruises on her body, and contrary to the defense, an examining doctor testified that the burn was not caused by pouring hot bath water on the child, the failure of defendant to obtain medical care for the child also showed child cruelty. Garrett v. State, 300 Ga. App. 391, 685 S.E.2d 355 (2009).
Failure to seek timely medical care for a child may form the basis for the offense of cruelty to children. Morast v. State, 323 Ga. App. 808, 748 S.E.2d 287 (2013).
Sufficient evidence supported the defendant’s cruelty to children convictions based on being criminally negligent in failing to seek medical care for the defendant’s child after the child was bitten by a dog and a human and suffered excessive vomiting, and the defendant knew for several days but did not seek medical attention for the child. Morast v. State, 323 Ga. App. 808, 748 S.E.2d 287 (2013).
Evidence was sufficient to convict the defendant of cruelty to children in the second degree for failing to seek medical attention for the first victim after noticing the first victim’s head swelling as the state presented evidence, through the testimony of a detective, that the defendant was aware of the first victim’s head swelling a few weeks prior to an appointment for routine vaccinations. Freeman v. State, 333 Ga. App. 6, 775 S.E.2d 258 (2015).
Failure to procure medical treatment.
– Being afraid because one might get in trouble is neither justification nor excuse for refusing to obtain medical care for one’s injured child. Hill v. State, 243 Ga. App. 614, 533 S.E.2d 779 (2000).
Evidence that while in defendants’ care the child suffered a fracture to the child’s arm for which defendants refused to seek medical treatment and were evasive about explaining, although circumstantial, was sufficient to support convictions for child cruelty and contributing to the deprivation of a minor. Thompson v. State, 262 Ga. App. 17, 585 S.E.2d 125 (2003).
Evidence that defendant kicked and slammed the defendant’s love interest’s infant child, breaking an arm and legs, and that, although defendant knew the severity of the child’s injuries, failed to procure medical treatment for the child on the day of the incident and for the following three days was sufficient to enable a jury to conclude that defendant was guilty of the offense of cruelty to children in the first degree, pursuant to O.C.G.A. § 16-5-70(b). McKee v. State, 275 Ga. App. 646, 621 S.E.2d 611 (2005).
Jury was authorized to conclude that the defendant participated in a pattern of child cruelty over the course of several months, and aided and abetted in the malicious acts that caused the death of the child victim where, among other things, the defendant, the father of the child, regularly beat the child with a belt, the defendant was aware that the child had experienced seizures before the night in question, the defendant observed the child in extreme distress that night but offered no assistance, and the defendant realized that the child’s condition had worsened during the night but still took no action to procure medical care until the next morning. Delacruz v. State, 280 Ga. 392, 627 S.E.2d 579 (2006).
Evidence was sufficient to support the defendant’s conviction for cruelty to children in the first degree, O.C.G.A. § 16-5-70(b), because after the victim sustained second and third degree burns, the defendant failed to seek immediate treatment for the victim, and the defendant also prevented the victim’s mother from taking the victim to the hospital for treatment; during the delay in which appropriate medical treatment was withheld, the victim had difficulty eating and sleeping, became dehydrated, and developed an infection in the area of the burns. Wells v. State, 309 Ga. App. 661, 710 S.E.2d 860 (2011).
Evidence was sufficient to convict the defendant, the child’s mother, of one count of cruelty to children in the second degree as to the second child because the child had a cancerous tumor for a very long time, and the child’s parents were aware of the tumor, but the parents failed to provide the child with any medical treatment; when the tumor was finally diagnosed, it was so large that the child required surgery and at least two rounds of chemotherapy to treat the tumor; and the child’s paternal uncle testified that the chemotherapy made the child nauseous, which drained the child and kept the child from doing things the child normally wanted to do. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).
Evidence was sufficient to support the defendant’s conviction for cruelty to children in the first degree based on the defendant hitting the defendant’s two year old child on the head and instead of seeking medical care or reporting the child’s injury to any authority, the defendant moved the child to a bedroom, placed the child’s body in the attic, and pressured the mother, the defendant’s wife, to obtain money for bus tickets and fled the country. Vasquez v. State, 306 Ga. 216, 830 S.E.2d 143 (2019).
Denying child one day’s special formula.
– State failed to establish that a denial of one day’s special formula was sufficient to “jeopardize” the child’s health, where there was no evidence that the child was denied any milk at any time or that the child’s health had been jeopardized by the defendant’s failure to utilize a prescribed special formula. Howell v. State, 180 Ga. App. 749, 350 S.E.2d 473 (1986).
Malnourished child.
– Trial court did not err in denying the defendants’ motion for a directed verdict because the evidence presented was sufficient for a rational trier of fact to have found the defendants guilty of cruelty to children in the first degree in violation of O.C.G.A. § 16-5-70(a). Direct medical testimony revealed that the victim was severely malnourished and that the victim’s health was jeopardized. Coleman v. State, 308 Ga. App. 731, 708 S.E.2d 638 (2011).
Evidence authorized a rational trier of fact to find that, given the oldest child’s double black eyes, as well as the dire condition of the victims who were underweight compared to the defendant mother’s healthy condition, the mother’s intention was willful such that the mother’s convictions for cruelty to children in the first degree were proper. Brown v. State, Ga. App. , S.E.2d (Sept. 1, 2020).
Malnutrition.
– Evidence of the lack of material in both the stomach and the gastrointestinal tract precluded a finding that the child had succumbed from the effects of malabsorption syndrome and thus, the evidence supported a finding that the infant’s death was due to severe growth retardation secondary to malnutrition with marked dehydration; thus, a conviction under O.C.G.A. § 16-5-70 was authorized. Beasley v. State, 161 Ga. App. 29, 288 S.E.2d 828 (1982).
Evidence was sufficient to support a father’s conviction under O.C.G.A. § 16-5-70 where the defendant’s 4 month old child was found severely malnourished, even though there was food in the house to feed the child properly and the child’s mother and children received WIC food and formula vouchers. Knight v. State, 233 Ga. App. 819, 505 S.E.2d 796 (1998).
Defendant’s motion for a directed verdict was properly denied because evidence that defendant’s 3-month-old child was underweight and severely malnourished to the point where it was too weak to feed and had to be fed initially through a naso-gastric tube, that defendant fed the child sugar water to avoid bothering with making formula, and that defendant sometimes propped up a bottle near the child instead of feeding the child, allowed a rational trier of fact to find defendant guilty beyond a reasonable doubt of the charge of cruelty to children by willfully depriving the child of necessary sustenance to the extent that the child’s well-being was jeopardized. Wilson v. State, 257 Ga. App. 242, 570 S.E.2d 679 (2002).
Defendant was properly convicted of child cruelty where a doctor stated that defendant’s two-month old child was suffering from one of the worse cases of malnutrition that the doctor had ever seen, as evidenced by the child’s sunken eyeballs, delayed capillary refill, increased turgor of the skin, and poor reaction to the environment. Bosnak v. State, 263 Ga. App. 313, 587 S.E.2d 814 (2003).
Defendant’s motion for directed verdict of acquittal on two counts of cruelty to children, in violation of O.C.G.A. § 16-5-70(a), in connection with the malnourishment of the defendant’s live-in love interest’s two-year-old twins was properly denied because there was direct medical, photographic, and testimonial evidence showing that the children were severely malnourished and that their health was jeopardized and that defendant wilfully deprived the children of necessary sustenance; the evidence included a doctor’s testimony that the children had no subcutaneous fat, had bulging abdomens, could make sounds but not say any words, could not bear weight, had very delayed bone development, were severely malnourished, had no medical reason for their failure to thrive, and gained about as much weight during their first six weeks in foster care as they had in two years under defendant’s care. Copeland v. State, 263 Ga. App. 776, 589 S.E.2d 319 (2003).
Because a pediatrician testified that a child victim’s reflux condition could not have caused the degree of malnourishment that the pediatrician found in the victim, and that the child’s extreme failure to thrive was caused by a failure to feed the child, because the state presented evidence that the victim was not fed, the trial court did not err in denying defendants’ motion for a directed verdict of acquittal in defendants’ trial for cruelty to children. Allen v. State, 278 Ga. App. 292, 628 S.E.2d 717 (2006).
Evidence supported the conviction of the defendants as: (1) the first defendant took custody of a healthy normal weight three-and-a-half-year-old child and after five months, the child was very ill and had lost 14 pounds; (2) having been told upon the child’s discharge from a hospital to return for testing and to contact the child’s regular pediatrician, the defendants did neither and took no steps to seek medical attention until the child was almost dead; (3) when the child was fed, despite the child’s claimed celiac disease, the child thrived and gained weight and it was only when the child was with the defendants that the child became an emaciated waif; and (4) the first defendant’s claims that the child’s other biological parent caused the child’s condition and that the sores on the child’s body were not as severe as portrayed by the medical testimony and the photos in evidence were rejected by the jury. Revells v. State, 283 Ga. App. 59, 640 S.E.2d 587 (2006).
Evidence was sufficient to support a father’s malice murder conviction and a mother’s conviction of felony murder during first-degree child cruelty under O.C.G.A. § 16-5-70(a) since extensive medical testimony showed their baby’s need of medical attention and the baby’s condition of extreme malnourishment or starvation causing death. Sanders v. State, 289 Ga. 655, 715 S.E.2d 124 (2011).
Raising a child in unsanitary conditions can constitute the offense of cruelty to children; however, there must be evidence establishing the age of the child, that the child suffered physical or mental pain, that the pain was cruel or excessive, that defendant caused the pain, and that defendant acted maliciously in so doing. Brewton v. State, 266 Ga. 160, 465 S.E.2d 668 (1996).
Evidence of unsanitary conditions is not enough, by itself, to prove the element of malice required for the offense of cruelty to children. Brewton v. State, 266 Ga. 160, 465 S.E.2d 668 (1996).
Child sitting in tub with scalding water and caustic chemicals.
– Convictions of cruelty to children and battery were supported by evidence that defendant caused defendant’s eight-year-old child to suffer severe burns by forcing the child to sit in a bathtub filled with hot water and caustic chemicals. Mitchell v. State, 233 Ga. App. 92, 503 S.E.2d 293 (1998).
Burning of victim with hot water.
– Evidence was sufficient to support the defendant’s convictions for aggravated battery, O.C.G.A. § 16-5-24(a), first degree cruelty to children, O.C.G.A. § 16-5-70(b), and second degree cruelty to children, O.C.G.A. § 16-5-70(c), because the victim stated in a forensic interview and testified at trial that the defendant had burned the victim with hot water on more than one occasion and that the defendant had slapped the victim’s face and punched the victim in the stomach; the victim was admitted to the hospital with severe burns on the feet, buttocks, and scrotum, and the victim’s mother testified that the victim had been under the defendant’s care at the time the victim received the burns. Jackson v. State, 310 Ga. App. 476, 713 S.E.2d 679 (2011).
Holding child in scalding water.
– Ample evidence sustained defendant’s convictions for cruelty to children, under O.C.G.A. § 16-5-70(b) where the evidence revealed that: (1) defendant took a two-year-old victim into the bathroom where the victim was burned; (2) the victim told other people that it was defendant who burned the victim; (3) the burns on the victim’s body were consistent with purposeful immersion in excessively hot water; (4) doctors who initially treated the victim immediately suspected child abuse; and (5) the victim was burned to the point that skin melted from the victim’s feet and the victim was in extreme physical and emotional pain. Ratledge v. State, 253 Ga. App. 5, 557 S.E.2d 458 (2001).
Ample evidence concerning the child victim’s condition and expert testimony regarding the same was presented to authorize the jury to find defendant guilty of committing felony murder by holding the child in scalding water, and guilty of committing cruelty to a child by failing to provide medical attention, and to reject the evidence and hypotheses defendant presented in an attempt to refute the charges. Robles v. State, 277 Ga. 415, 589 S.E.2d 566 (2003).
Evidence was sufficient to support defendant’s convictions on four counts of aggravated battery and one count of cruelty to children in the first degree after the 17-month-old child of defendant’s love interest was found with hot-water immersion burns incurred while defendant was watching the child for the love interest; the jury was free to reject the explanation that defendant had no criminal intent at the time the burns were incurred and find that the only reasonable hypothesis was that defendant maliciously and intentionally immersed the baby in hot water after the baby soiled a diaper, especially since defendant’s explanations were not consistent with the evidence. Lee v. State, 275 Ga. App. 93, 619 S.E.2d 767 (2005).
Drowning deaths of children.
– Evidence was insufficient to convict the defendant because the state did not show that the defendant’s conduct while the two children were under the defendant’s supervision constituted criminal negligence supporting the defendant’s convictions for second degree cruelty to children and for reckless conduct related to the drowning deaths of the two children as it could not be said that taking a 45-minute phone call in itself constituted a failure to reasonably supervise the children; the defendant confirmed that the children were in an upstairs room playing when the defendant initiated the phone call; and the defendant had told the children they could not go swimming and there was no showing that the children had a propensity to disobey the defendant. Corvi v. State, 296 Ga. 557, 769 S.E.2d 388 (2015).
Evidence sufficient for murder of infant child.
– Defendant’s conviction for murder was upheld on appeal because the evidence established that the only possible perpetrators of the fatal abdominal trauma to the child were defendant or the mother and the expert opinion evidence established that the death would have occurred within 45 minutes after the abdominal trauma and likely sooner than that and the mother had already gone to work and the neighbor who drove the child and the defendant to the hospital testified that the child was still alive. Wilson v. State, 308 Ga. 306, 840 S.E.2d 370 (2020).
Felony murder conviction upheld.
– Evidence that defendant shook child repeatedly until child went limp along with pathologist testimony that injury to child’s skull resulted in the child’s death was sufficient to conclude that defendant was guilty beyond a reasonable doubt of felony murder in the death of the child. McNeal v. State, 263 Ga. 397, 435 S.E.2d 47 (1993).
Evidence that the cause of death was loss of blood due to a laceration of the liver caused by blunt force trauma to the abdomen, most likely a punch with a fist, was sufficient to show either excessive pain or the malice required for a conviction of felony murder with cruelty to children. Folson v. State, 278 Ga. 690, 606 S.E.2d 262 (2004).
Evidence that there was an 80 to 90 percent chance that injuries that caused the death of a defendant’s 10-month-old child were inflicted within an hour of the child’s death, that the defendant left the apartment at 4:10 P.M., that an attending physician was called to the emergency room at 5:46 P.M., and that the child was dead on arrival at the emergency room was sufficient to support the defendant’s convictions for felony murder while in commission of cruelty to a child in the second degree, aggravated assault, and cruelty to a child in the first degree; the evidence permitted the jury to conclude that the time frame in which the child’s injuries were inflicted included the time before the defendant left for work, there was evidence concerning the defendant’s actions before and after the child’s death that indicated the defendant’s guilt, and the jury was not required to accept the defendant’s version of events. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).
Sufficient evidence supported a conviction of felony murder while in the commission of cruelty to children in the first degree: (1) the pathologist who performed the child’s autopsy testified that the 14-month-old child, who had been injured while left in the defendant’s care, died from multiple blunt force injuries that were inconsistent with falling off a bed or being dropped, as claimed by the defendant; (2) a defense pathologist agreed that there were at least seven distinct impact sites on the child’s head and about 105 impact sites on the child’s body; and (3) there was evidence that two years before, the defendant’s six-month-old child had been left in the defendant’s care and had been returned to the child’s parent with unexplained bruises and other injuries. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008).
The following evidence was sufficient to establish that the defendant acted with malice and thus supported the defendant’s convictions of felony murder and the predicate felonies of aggravated battery, O.C.G.A. § 16-5-24(a), and first-degree child cruelty, O.C.G.A. § 16-5-70: 1) the defendant claimed the victim, a 16-month-old child who had been left in the defendant’s care, became unresponsive and that the defendant shook the child in an attempt to revive the child; 2) a medical examiner testified that the victim died from head trauma; 3) the victim’s 10-year-old sibling testified that the defendant had struck the victim in the past and had been yelling at the victim before the victim lost consciousness. Sears v. State, 290 Ga. 1, 717 S.E.2d 453 (2011).
Conviction for felony murder predicated on cruelty to children in the first degree was supported by evidence concerning the severity and scope of the victim’s injuries, which permitted an inference that whoever struck the victim, an act to which the defendant admitted, did so maliciously and that the injuries were not the result of reasonable disciplinary measures as alleged by the defendant. Butler v. State, 292 Ga. 400, 738 S.E.2d 74 (2013).
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Testimony by the state’s medical expert that the child’s malnutrition materially contributed to the child’s death from battered child syndrome, the defendant’s testimony that the defendant made sure there was food because the defendant believed it was the defendant’s duty to provide food for the family, and the evidence that there was no food suitable for the child other than oatmeal in the house supported the jury’s finding that the defendant was guilty of felony murder based on child cruelty. Brown v. State, 297 Ga. 685, 777 S.E.2d 466 (2015).
Guilty verdict clearly supportable as matter of law. Fain v. State, 165 Ga. App. 188, 300 S.E.2d 197 (1983).
When the testimony of defendant’s wife, who was charged and pled guilty as an accomplice, was corroborated by the testimony of the wife’s sister who observed defendant beating the same victim on an earlier occasion, such evidence was sufficient to sustain defendant’s conviction. Jackson v. State, 178 Ga. App. 378, 343 S.E.2d 122 (1986).
Evidence sufficient to sustain conviction on count charging defendant with causing child excessive physical pain by striking the child in the face. Howell v. State, 180 Ga. App. 749, 350 S.E.2d 473 (1986).
Evidence held sufficient for rational trier of fact to find cruelty to children. Sharp v. State, 183 Ga. App. 641, 360 S.E.2d 50 (1987); Lewis v. State, 191 Ga. App. 287, 381 S.E.2d 558 (1989); Rigenstrup v. State, 197 Ga. App. 176, 398 S.E.2d 25 (1990).
Evidence supported defendant’s conviction, where the record showed that the victim had second-degree burns which, in the expert medical opinion of an attending physician, demonstrated that the victim had been dipped into hot water. Gatson v. State, 198 Ga. App. 279, 401 S.E.2d 71 (1991).
Evidence was sufficient to support defendants’ convictions of cruelty to children and aggravated battery where the medical testimony concerning the extent and possible cause of the victim’s injuries, evidence of defendants’ complacent demeanor, and testimony concerning their access to the victim were but some of the factors from which the jury could find them guilty. Thomas v. State, 262 Ga. App. 492, 589 S.E.2d 243 (2003).
Evidence was sufficient to support conviction for cruelty to children because defendant, a police officer on duty, repeatedly threatened minor victim with prosecution if the victim did not have sex with defendant, the act was painful and upsetting to the victim, defendant forced the victim to touch defendant’s genitals, and defendant had no justification for the actions. Wiggins v. State, 272 Ga. App. 414, 612 S.E.2d 598 (2005), aff’d in part and rev’d in part, 280 Ga. 268, 626 S.E.2d 118 (2006).
Sufficient evidence supported defendant’s convictions of felony murder and cruelty to children where defendant admitted striking the child multiple times on the night in question, causing the child to bleed, but denied striking the child with sufficient force to cause the injuries the child sustained; the child’s mother testified that the bruises the mother found on the child’s head and body in the morning had not been present the previous evening. Sauerwein v. State, 280 Ga. 438, 629 S.E.2d 235 (2006).
Defendant’s malice murder and cruelty to children convictions were affirmed on appeal as post-autopsy photographs were properly admitted to assist the jury in understanding both the internal injuries and the cause of the victim’s death, and sufficient and overwhelming evidence was presented that the victim’s injuries were not accidental. Thomas v. State, 281 Ga. 550, 640 S.E.2d 255 (2007).
Despite the defendant’s claim that breaking defendant’s infant daughter’s arm was an accident and that the evidence of intent was insufficient to support a first-degree cruelty to children conviction, the conviction was upheld on appeal based on: (1) medical evidence regarding the normal frailty of an infant’s bones; (2) evidence that the injury the child suffered was normally one caused by a non-accidental trauma; (3) evidence that the injury occurred shortly after the defendant angrily confronted the crying infant; and (4) prior difficulties evidence which showed the defendant began spanking the child when the child was two or three months old. Cochran v. State, 285 Ga. App. 175, 645 S.E.2d 662 (2007).
Trial court did not err in denying the defendant’s motion for directed verdict of acquittal after a jury convicted the defendant of two counts of cruelty to children in violation of O.C.G.A. § 16-5-70(b) because the state did not fail to prove that the defendant used a bat and a belt as stated in the indictment; both victims, who were the defendant’s adopted children, testified that the defendant beat the victims with a belt and a bat and that the beatings occurred when the victims did not complete the exercises that the defendant required the victims to do on a daily basis. Dinkler v. State, 305 Ga. App. 444, 699 S.E.2d 541 (2010), overruled on other grounds, Stuart v. State, 318 Ga. App. 839, 734 S.E.2d 814 (2012).
Eyewitness testimony of child’s mother was sufficient to support inferences that defendant had acted with malice in hitting the child and that defendant’s acts had caused the child cruel and excessive physical pain. Martin v. State, 190 Ga. App. 486, 379 S.E.2d 170, cert. denied, 190 Ga. App. 898, 379 S.E.2d 170 (1989).
Marital privilege exception applied in child cruelty case, despite lack of physical contact.
– Defendant’s alleged violation of O.C.G.A. § 16-5-70(d), cruelty to children, was a “crime against the person of a minor child” within the meaning of former O.C.G.A. § 24-9-23(b) (see now O.C.G.A. § 24-5-503), which provided an exception to the marital privilege against testifying in cases of crimes against the person of children, even though no physical contact was involved. Therefore, a trial court did not err in compelling the defendant’s spouse to testify against the defendant despite invoking the privilege. Sherman v. State, 302 Ga. App. 312, 690 S.E.2d 915, cert. denied, No. S10C0961, 2010 Ga. LEXIS 545 (Ga. 2010).
Circumstantial evidence was sufficient to show that acts of cruelty committed by defendant on defendant’s 13-year-old stepson were committed within the statute of limitation. Lee v. State, 232 Ga. App. 300, 501 S.E.2d 844 (1998).
Evidence that a defendant’s 13-month-old child died while in the defendant’s care from brain trauma caused by being struck by or against an object or violently shaken, at a time when one other person and that person’s child were in the defendant’s apartment, provided sufficient circumstantial evidence under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder while in the commission of cruelty to a child; questions as to the reasonableness of hypotheses were to be decided by the jury, and the jury’s authorized finding that evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt was not to be disturbed unless the guilty verdict was insupportable as a matter of law. Scott v. State, 281 Ga. 373, 637 S.E.2d 652 (2006).
Digital penetration sufficient.
– Evidence was sufficient to convict defendant of first degree cruelty to children, O.C.G.A. § 16-5-70(b), where the victim’s testimony, the victim’s mother’s testimony, and the doctor’s testimony all established that defendant digitally penetrated the victim, causing physical injury. Gearin v. State, 255 Ga. App. 329, 565 S.E.2d 540 (2002).
Burning of victim.
– Evidence that the child showed no signs of injury when dropped off at day care, the child was crying while being cleaned by the defendant, and later the child had what was a burn that had not been seen before was sufficient to support the defendant’s conviction for cruelty to children. Pittmon v. State, 342 Ga. App. 874, 805 S.E.2d 628 (2017).
Leaving very young child alone on couch.
– Evidence was sufficient to convict the defendant of second-degree cruelty to children because the defendant’s failure to secure the very young victim before leaving the victim on a couch for 15 minutes while the defendant used the bathroom exposed the victim to an obvious risk of injury of being smothered by couch cushions; and the defendant’s actions showed the defendant’s reckless disregard for the victim’s safety. Scott v. State, 307 Ga. 37, 834 S.E.2d 88 (2019).
Exclusion of evidence of state’s witness’s mental illness could not be reviewed.
– In the defendant’s appeal from convictions based on sex acts committed against the defendant’s step-daughter, O.C.G.A. §§ 16-5-70(b),16-6-2, and16-6-4, the defendant’s claim that the trial court erred in excluding evidence that the victim’s grandmother, who lived with the family and insisted to the mother that the defendant was molesting the child, had been diagnosed with mental illness could not be reviewed because trial counsel did not proffer the evidence. Whitelock v. State, 349 Ga. App. 28, 825 S.E.2d 426 (2019).
Admission of irrelevant evidence did not require mistrial.
– During a trial for felony murder while in the commission of cruelty to a child, evidence that a defendant’s romantic partner did not know that the defendant was married was irrelevant; although the defendant’s objection to the admission of the evidence was improperly overruled, the defendant’s motion for a mistrial was properly denied because a mistrial was not mandated. Scott v. State, 281 Ga. 373, 637 S.E.2d 652 (2006).
Similar transaction evidence properly admitted.
– In a prosecution on two counts of second-degree cruelty to children and family violence battery, the trial court properly admitted similar transaction evidence against the defendant for the limited purpose of showing the defendant’s course of conduct and bent of mind as identity was not an issue and the similar transaction and the charged offense were the same, except for the fact that they were committed against different family members. Breazeale v. State, 290 Ga. App. 632, 660 S.E.2d 376 (2008).
Excessive physical pain imposed on 13-month old child.
– Evidence was sufficient to authorize a rational jury to find a husband guilty beyond a reasonable doubt of malice murder of a 13-month-old child in the husband’s care, first-degree child cruelty charges, and sexual battery: the victim was often bruised after the husband became the child’s primary caretaker, the husband and wife were the only adults in the home, and the wife testified that the husband inflicted the victim’s injuries, including head trauma from swinging the child by the ankle against a sofa. Virger v. State, 305 Ga. 281, 824 S.E.2d 346 (2019).
Evidence properly admitted.
– With regard to a defendant’s conviction on three counts of cruelty to children in the first degree based on injuries to the child of defendant’s love interest, the trial court did not err by admitting the incriminating statements that the defendant used too much force in putting the child into a swing, which the defendant made to the polygraph examiner during the pre-polygraph examination interview; the examiner and the investigator testified that, prior to making any statements, the defendant was read the defendant’s Miranda warnings, had voluntarily signed a waiver of rights form, and had voluntarily signed a form stipulating that the results of the polygraph examination would be admissible evidence and both the waiver of rights form and the stipulation were produced for the trial court’s review during a suppression hearing and were introduced into evidence at trial after defendant’s motion to suppress was denied. Legan v. State, 289 Ga. App. 244, 656 S.E.2d 879 (2008).
Evidence that since being raped by defendant a victim had nightmares and had to sleep with her parents was properly admitted as proof that defendant had caused the victim the mental pain necessary to support a conviction for cruelty to a child. Mims v. State, 291 Ga. App. 777, 662 S.E.2d 867 (2008), cert. denied, No. S08C1691, 2008 Ga. LEXIS 768 (Ga. 2008).
In a case when a defendant was convicted of cruelty to children in violation of O.C.G.A. § 16-5-70, the trial court did not err in denying the defendant’s motion for a mistrial or in refusing to strike certain testimony because hearsay statements by the defendant’s daughter were admissible pursuant to former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) since the daughter was available to appear at trial and, in fact, took the witness stand. Stegall v. State, 297 Ga. App. 425, 677 S.E.2d 441 (2009).
Evidence was sufficient to convict the mother of two counts of cruelty to children in the second degree as to the first child because the child felt lonely and isolated from the child’s siblings while the child was locked in a basement closet for about two years, with only one or two daily visits from a parent; the window in the room was covered; the child’s treating pediatrician testified that the child suffered from osteopenia in the wrists, knees, and legs, a rare condition that was likely caused by the child’s confinement to a small room, which prohibited the child from playing, running, and exercising; and the child had significantly low levels of Vitamin D in the child’s body, which could have caused the child’s weakness and fatigue. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).
Evidence sufficient for conviction.
– See Black v. State, 261 Ga. 791, 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S. Ct. 118, 121 L. Ed. 2d 74 (1992); Morris v. State, 202 Ga. App. 673, 415 S.E.2d 485 (1992); Weeks v. State, 220 Ga. App. 141, 469 S.E.2d 316 (1996); Glenn v. State, 228 Ga. App. 29, 491 S.E.2d 92 (1997); Goss v. State, 228 Ga. App. 411, 491 S.E.2d 859 (1997); Nunez v. State, 237 Ga. App. 808, 516 S.E.2d 357 (1999); Avila-Nunez v. State, 237 Ga. App. 649, 516 S.E.2d 335 (1999); Wilhelm v. State, 237 Ga. App. 682, 516 S.E.2d 545 (1999); Johnson v. State, 239 Ga. App. 886, 522 S.E.2d 478 (1999); Porter v. State, 243 Ga. App. 498, 532 S.E.2d 407 (2000); Bartlett v. State, 244 Ga. App. 49, 537 S.E.2d 362 (2000); Loveless v. State, 245 Ga. App. 555, 538 S.E.2d 464 (2000).
Evidence was sufficient for the jury to conclude that the mother was guilty of cruelty to children. Stokes v. State, 204 Ga. App. 586, 420 S.E.2d 84 (1992).
Evidence was sufficient to convict the defendant of the remaining counts of aggravated child molestation, child molestation, attempted child molestation, and cruelty to children, not included in Count 3, based on the video-recordings of the children’s forensic interviews; testimony about the children’s various disclosures; the children’s testimony; and the neighbors’ testimony that the neighbors observed bruises and other injuries on the children, and saw the defendant kick one of the children. Shepherd v. State, 353 Ga. App. 228, 836 S.E.2d 221 (2019).
Sufficient evidence supported the appellant’s convictions for burglary, cruelty to children, terroristic threats, and aggravated assault as neither parent gave the appellant permission to enter their home, the appellant was identified as the intruder who held a knife to the child’s neck, and struggled with one parent as the appellant tried to remove the child from the home, and the appellant threatened to kill one of the children while holding a knife to their neck. Cordova v. State, 351 Ga. App. 652, 832 S.E.2d 465 (2019).
Although the evidence did not show exactly how the victim’s fatal injuries were inflicted, the evidence was sufficient to support the defendant’s murder and child cruelty convictions, as the father said consistently that the father was out by the car at the time the injuries occurred, whereas the defendant admitted to being alone in the room with the victim and changed the defendant’s story several times, each time giving an account that was dubious in light of the physical and medical evidence. Long v. State, Ga. , S.E.2d (Sept. 8, 2020).
Excessive physical pain sufficient for conviction.
– There was ample evidence in the record from which a rational trier of fact could find beyond a reasonable doubt that defendant was guilty of cruelty to children by maliciously causing defendant’s ward excessive physical pain. Strickland v. State, 212 Ga. App. 170, 441 S.E.2d 494 (1994); Keller v. State, 221 Ga. App. 846, 473 S.E.2d 194 (1996).
There was ample evidence to support the defendant’s conviction of cruelty to children, where there was videotaped testimony by the child as well as testimony by the child’s relatives that the victim experienced cruel and excessive mental pain, including testimony concerning: the victim’s complaints of physical pain and apparent emotional distress; her vagina appearing to be red and irritated; the child’s conduct in seeking to avoid the defendant; and regression in her toilet training. Clark v. State, 234 Ga. App. 503, 507 S.E.2d 241 (1998).
Considering the child’s age, the child’s injuries, and testimony that the defendant’s blows were severe enough to make the child cry, the defendant was guilty of first degree cruelty to children where the evidence showed that the defendant maliciously struck the child in the head twice, causing numerous bruises and a fractured skull. Smith v. State, 261 Ga. App. 106, 581 S.E.2d 713 (2003).
Defendant’s proceeding pro se after three detailed trial court warnings was not an abuse of discretion; the defendant’s conviction of two counts of O.C.G.A. § 16-5-21(a)(2), aggravated assault, and one count of O.C.G.A. § 16-5-70(c), cruelty to children, (using defendant’s car as a deadly weapon to run into the defendant’s spouse’s car with the spouse and child inside) was supported by sufficient evidence. Bush v. State, 268 Ga. App. 200, 601 S.E.2d 511 (2004).
Evidence of the victim alone was sufficient to authorize a guilty verdict in a child molestation case; there was no requirement that the victim’s testimony be corroborated, and defendant’s convictions of child molestation, aggravated child molestation, rape, aggravated sexual battery, and cruelty to children were affirmed. McKinney v. State, 269 Ga. App. 12, 602 S.E.2d 904 (2004).
Sufficient evidence, including testimony from the child victim identifying defendant’s vehicle, evidence of defendant’s DNA matching that of the victim and expert testimony that the frequency of such occurrence was approximately one in two billion in the Caucasian population, and similar transaction evidence, supported defendant’s kidnapping with bodily injury, rape, aggravated sodomy, aggravated child molestation, aggravated assault, and first-degree cruelty to children convictions. Morita v. State, 270 Ga. App. 372, 606 S.E.2d 595 (2004).
Defendant’s convictions for child molestation, aggravated child molestation, and two counts of cruelty to children in the first degree, in violation of O.C.G.A. §§ 16-5-70(b) and16-6-4(a), (c), as well as the defendant’s conviction for attempt to commit rape, were supported by evidence, including testimony by the defendant’s two grandchildren who were the victims of the instant crimes, as well as the introduction of similar transaction evidence, including sex offense convictions and similar acts by the defendant against other minor victims; evidence of the similar transaction was properly admitted, as any issue as to its remoteness went to the weight of the evidence, not its admissibility. Shorter v. State, 271 Ga. App. 528, 610 S.E.2d 162 (2005).
Hitting victim with a belt.
– Evidence supported defendant’s conviction under O.C.G.A. § 16-5-70(b) because the five-year-old victim told a detective and two Department of Family and Children Services employees that the child’s parent and defendant hit the victim with a belt; the victim’s injuries included a large black eye, facial swelling, multiple facial abrasions, and multiple contusions to the chest, thorax, legs, and arms; an emergency room physician testified that the force exerted must have been severe and that the bruises were “fresh” and had been inflicted within the last 48 hours; and the victim was temporarily living with defendant and the defendant’s spouse, the victim’s cousin. Morgan v. State, 272 Ga. App. 68, 611 S.E.2d 740 (2005).
Defendant’s conviction of cruelty to children was supported by sufficient evidence which showed that defendant’s six-year-old victim had fresh bruises, marks, and a swollen wrist at school, that the child identified defendant as the person who caused this, and that the victim’s mother testified that defendant had struck the victim with a belt. Sims v. State, 273 Ga. App. 723, 615 S.E.2d 785 (2005).
Evidence supported defendants’ convictions for aggravated battery and cruelty to children because the jury was free not only to reject defendants’ explanations of the child’s injuries as unreasonable, but to find that the state’s case, including testimony as to the extent and cause of the child’s injuries and as to defendants’ access to the child, excluded every reasonable possibility save defendants’ guilt. Hunnicutt v. State, 276 Ga. App. 547, 623 S.E.2d 714 (2005).
Despite allegations that: (1) the victim’s testimony was contradicted by the victim’s parent; and (2) the victim had a motive to lie about the defendant, the appeals court refused to disturb the jury’s determination, given the jury’s province to resolve the conflicts in the evidence; hence, the defendant’s cruelty to children and attempted aggravated and child molestation convictions were upheld on appeal. Chalker v. State, 281 Ga. App. 305, 635 S.E.2d 890 (2006).
Firing a shot when child present.
– Despite the defendant’s contentions that insufficient evidence as to a child’s presence in the room when the victim was accosted required reversal of a cruelty to children conviction, such conviction was upheld, supported by the victim’s testimony notifying the defendant of the presence of the child before the defendant fired a shot next to the victim’s head. Price v. State, 281 Ga. App. 844, 637 S.E.2d 468 (2006).
Squeezing of child.
– Evidence, including the defendant’s admission to squeezing and shaking the child and the testimony of the forensic pediatrician that the child’s injuries were consistent with being squeezed, was sufficient to convict the defendant of child cruelty in the first degree under O.C.G.A. § 16-5-70(b) and aggravated battery under O.C.G.A. § 16-5-24(a). Bass v. State, 282 Ga. App. 159, 637 S.E.2d 863 (2006).
Defendant’s convictions for aggravated assault, aggravated battery, and first-degree child cruelty pursuant to O.C.G.A. §§ 16-5-21(a),16-5-24(a), and16-5-70(b) for participating in a drive-by shooting were supported by sufficient evidence because the testimony of a single witness was generally sufficient to establish a fact pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) and it was the function of the jury to evaluate the credibility of witnesses; based on the testimony of the witnesses to the shooting, a reasonable jury could have rejected the defendant’s claims and determined that the defendant was a party to each of the crimes. Hill v. State, 282 Ga. App. 743, 639 S.E.2d 637 (2006).
Child attempting to protect parent.
– Sufficient evidence existed to support the defendant’s conviction of cruelty to children in the first degree since the jury was authorized to conclude that the defendant’s actions of maliciously causing the child of defendant’s girlfriend to incur cruel and excessive pain by throwing the child to the ground and by striking the child with the defendant’s hand when the child attempted to remove the defendant off of the child’s mother, who was being beaten by the defendant; the evidence showed that the defendant grabbed the 11-year-old child and slammed the child to the ground and then struck the child again after the child tried to protect the mother’s face. Ferrell v. State, 283 Ga. App. 471, 641 S.E.2d 658 (2007).
Multiple bone fractures.
– Evidence was sufficient to support the jury’s verdict of guilty with regard to the defendant’s convictions on three counts of cruelty to children in the first degree based on injuries to the child of defendant’s love interest because the jury was not required to believe (1) the defendant’s self-serving statements that the defendant did not intend to harm the child or (2) the defendant’s statements to law enforcement officers that the defendant accidentally fell on the child because the defendant’s hip gave out while putting the child in a swing, and that the child’s ribs may have been broken when the defendant administered CPR to save the child after a choking incident. The jury was authorized to weigh those assertions against the other evidence, including the testimony of the doctors, who stated that the child’s multiple bone fractures were not the result of accidental trauma or CPR, but were the result of child abuse. Legan v. State, 289 Ga. App. 244, 656 S.E.2d 879 (2008).
Threatening to shoot in front of children.
– There was sufficient evidence to support convictions of aggravated assault under O.C.G.A. § 16-5-21 and of third-degree cruelty to children under O.C.G.A. § 16-5-70. The victim, who had formerly been romantically involved with the defendant, was leaving a motel with the victim’s two children, three other children, and two friends when the defendant approached the victim from behind, put a gun to the victim’s head, and told the victim that when the defendant did not care about the children anymore, the defendant was going to kill the victim, and the state introduced prior difficulties evidence about an earlier incident where the victim was asleep at a parent’s house when the victim woke up to a punch in the face and saw the defendant running out the front door. McCullors v. State, 291 Ga. App. 393, 662 S.E.2d 197 (2008).
Evidence that a defendant forced himself on one young child and had intercourse with the child and that the defendant disciplined that child and the child’s two siblings by forcing them to take their clothes off, whipping them with a belt, and beating or choking them was sufficient to convict the defendant of child molestation, O.C.G.A. § 16-6-4(a), and cruelty to children, O.C.G.A. § 16-5-70(b). Williams v. State, 293 Ga. App. 617, 668 S.E.2d 21 (2008).
As babysitter, forcing actions at gunpoint.
– With regard to a defendant’s convictions on one count of enticing a child for indecent purposes, ten counts of child molestation, one count of aggravated child molestation, and three counts of cruelty to children in the first degree, regarding actions the defendant took toward three children and what the children were forced to do to each other by gunpoint while the defendant was a babysitter for the children, the state proved the charged offenses beyond a reasonable doubt based on the testimony of the three victims and the victims’ videotaped forensic interviews. It was within the province of the jury to disbelieve the defendant’s testimony that the defendant did not commit the charged crimes. Sullivan v. State, 295 Ga. App. 145, 671 S.E.2d 180 (2008), cert. denied, No. S09C0624, 2009 Ga. LEXIS 215 (Ga. 2009).
Trial court properly denied a defendant’s motion for a directed verdict with regard to two counts of first degree cruelty to children against the defendant regarding the defendant’s two children as the medical evidence indicating significant physical injuries over a period of time on both the children was sufficient to find that the defendant acted maliciously in causing the physical pain or was a party to such action by a romantic friend. Further, the evidence that the defendant attempted to conceal the second child’s injuries by leaving that child at the house of the romantic friend’s sibling, encouraging that sibling to hide the boy, and denying to the authorities that a second child existed was sufficient evidence to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of first degree cruelty to the second child. Hinds v. State, 296 Ga. App. 80, 673 S.E.2d 598 (2009).
Sufficient evidence supported the defendant’s conviction of misdemeanor cruelty to children in the third degree under circumstances in which the victim’s father received a call originating from the victim’s cell phone, and, when that number was called back, all that could be heard were noises, including gasping, gurgling, and children screaming during the second call, before the line was disconnected; officers later found the victim lying on the kitchen floor with a cell phone in the victim’s hand, dead from a single gunshot wound to the head, and a handgun retrieved on the premises was later determined to have fired the bullet that killed the victim. The defendant testified that the defendant and the victim were arguing inside the home, that the argument became physical, that the defendant took the children and a gun out to the defendant’s truck, that the defendant returned to the house, and that the defendant did not know what happened after that. Paslay v. State, 285 Ga. 616, 680 S.E.2d 853 (2009).
Threatening to shoot in front of children.
– Inasmuch as the offense of first-degree child cruelty in violation of O.C.G.A. § 16-5-70(b) was based on the victim’s testimony that defendant’s passenger pointed a gun at the victim’s forehead, the evidence was sufficient to support defendant’s conviction for first-degree child cruelty as a party and coconspirator. Johnson v. State, 299 Ga. App. 706, 683 S.E.2d 659 (2009).
Burned child.
– Evidence was sufficient to support the defendant’s conviction for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c), because the evidence authorized a finding that the defendant acted with the requisite criminal negligence under O.C.G.A. §§ 16-2-1(b) and16-5-70(c) in causing the victim to sustain severe, painful burns to the victim’s body; the state’s expert testified that the victim’s burns were inconsistent with the defendant’s claim that the incident leading to the victim’s injuries was merely accidental. Wells v. State, 309 Ga. App. 661, 710 S.E.2d 860 (2011).
Because the defendant pointed a gun at the victim while defendant’s accomplices robbed the victim, and thereafter shot at the victim’s trailer, hitting a child and killing the victim’s sister-in-law, the evidence was sufficient to find the defendant guilty of felony murder, aggravated assault, armed robbery, cruelty to children, possession of a gun during the commission of a crime, and possession of a revolver by a person under the age of 18. Lytle v. State, 290 Ga. 177, 718 S.E.2d 296 (2011).
There was sufficient evidence to support the defendant’s conviction for child molestation, aggravated child molestation, and first degree cruelty to children with regard to the defendant’s girlfriend’s niece based on the testimony of the victim and similar transaction evidence involving the defendant’s older daughter. Royal v. State, 319 Ga. App. 466, 735 S.E.2d 793 (2012).
When excessive physical or mental pain arises.
– Sufficient evidence existed to support the defendant’s conviction for cruelty to children because, despite the defendant’s contention to the contrary, the evidence was not undisputed that the two-year-old victim was asleep throughout the assault of the child’s mother because the mother testified that the two-year-old was shaking just after the mother called9-1-1, and O.C.G.A. § 16-5-70(c) does not expressly require that the child victim’s cruel or excessive physical or mental pain arise immediately upon the defendant’s act of criminal negligence. White v. State, 319 Ga. App. 530, 737 S.E.2d 324 (2013).
When the victim described the defendant’s abuse to the jury and in a recorded forensic interview that was played for the jury, and the victim included details that the forensic interviewer found inconsistent with someone who had been coached, the victim’s testimony and the forensic interview supported the defendant’s convictions for aggravated child molestation, child molestation, and first degree cruelty to children. Worley v. State, 319 Ga. App. 799, 738 S.E.2d 641 (2013).
Sufficient direct evidence existed to sustain the defendant’s conviction for cruelty to children in the first degree based on the testimony of the child victim, who indicated that it was the defendant, not the victim’s biological father, who inflicted the injuries; in addition, the victim’s biological father was incarcerated out-of-state at the time the injuries were sustained. Moore v. State, 319 Ga. App. 766, 738 S.E.2d 348 (2013).
Evidence that the baby had been in the defendant’s care for more than two hours when the baby died; that in the medical examiner’s opinion, the baby would have died within minutes or hours of suffering a brain injury; and that the autopsy uncovered extensive internal injuries to the baby was sufficient to support the defendant’s convictions for cruelty to children, aggravated assault, and aggravated battery. Graham v. State, 320 Ga. App. 714, 740 S.E.2d 649 (2013).
Defendant’s admission that the defendant helped the defendant’s son hold down the victim as the son penetrated the victim, that the defendant rubbed the defendant’s own penis against the victim and ejaculated on the victim, that the defendant put the defendant’s hands over the son’s as the son choked the victim, that the defendant helped dump the victim’s body, and the testimony of the defendant’s wife that the defendant helped undress the victim, the defendant put the defendant’s mouth on the victim’s penis, and the defendant attempted to put the defendant’s penis in the victim’s anus was sufficient to support defendant’s convictions for murder, false imprisonment, two counts of aggravated child molestation, child molestation, cruelty to children in the first degree, concealing the death of another, and tampering with evidence. Edenfield v. State, 293 Ga. 370, 744 S.E.2d 738 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Skull fractures to child.
– Sufficient evidence supported the defendant’s convictions for aggravated battery, aggravated assault, and cruelty to children with regard to the skull fracture and other head injuries incurred by the defendant’s infant son because the expert testimony and medical evidence established that the child’s injuries were not accidental but caused by a blow to the head and severe trauma. Oliver v. State, 324 Ga. App. 53, 748 S.E.2d 510 (2013).
Children witnessing murder.
– Evidence was sufficient to sustain the defendant’s first-degree child cruelty convictions because the defendant was an accomplice in the malice murder of the victim, which was witnessed by all three children, who were under the victim’s care at the time and all three children testified at trial to their fright and angst during and immediately after the shooting. Oliphant v. State, 295 Ga. 597, 759 S.E.2d 821 (2014).
Use of airsoft gun to discipline children.
– Evidence was sufficient to find the defendant guilty of two counts of cruelty to children in the first degree because the evidence was sufficient for the jury to conclude that the pain suffered by the children was cruel and excessive as the evidence showed that the defendant repeatedly and frequently shot the children with airsoft pistols and an airsoft rifle as a form of discipline; that the pellets left welts on the children and some of the pellets caused broken skin; that both children testified that the pellets caused them pain and made them cry; and that the use of the airsoft gun to discipline the children was unreasonable discipline. Pritchett v. State, 327 Ga. App. 389, 759 S.E.2d 300 (2014).
Although the defendant testified that perhaps the second victim’s ribs were fractured when the defendant fell while holding the second victim one time, the evidence was sufficient to convict the defendant of cruelty to children in the second degree for fracturing the second victim’s ribs because a doctor testified that the doctor would not expect to see that type of injury as the result of an accident. Freeman v. State, 333 Ga. App. 6, 775 S.E.2d 258 (2015).
Evidence was sufficient to convict the defendant of cruelty to children in the first degree for fracturing the first victim’s ribs and a leg as a doctor testified that the location and nature of the rib fractures in the first victim showed that the injuries were the result of child abuse, specifically from a squeezing force; and that leg fractures in a nonmobile infant with no history of accidental trauma was diagnostic of child abuse. Freeman v. State, 333 Ga. App. 6, 775 S.E.2d 258 (2015).
Evidence that the defendants were the only adults with the child when the child suffered the fatal head injuries supported an inference that the rib fractures were part of a pattern of ongoing abuse by, at least in part, the mother, which culminated in the child’s death and supported a conviction for second degree cruelty to children. Gomez v. State, 301 Ga. 445, 801 S.E.2d 847 (2017).
Shaken baby.
– Evidence that the child suffered serious injuries from being shaken and that the child’s brain function was impaired as a result was sufficient to authorize the jury to find the defendant guilty of cruelty to children in the first degree and aggravated battery. Hillsman v. State, 341 Ga. App. 543, 802 S.E.2d 7 (2017).
Fire caused by space heater.
– Evidence was sufficient to find the defendant guilty of two counts of involuntary manslaughter and one count of second degree cruelty to children as the defendant’s actions were the proximate cause of the victims’ deaths and injuries because a toppled space heater ignited a fire in the victims’ bedroom, causing their injuries while the defendant was absent; the defendant knew that space heaters could cause fires; there was sufficient space in the boyfriend’s vehicle to fit all four children; and, with the foregoing knowledge, the defendant left the defendant’s three children completely unattended for an extended period of time in a combustibles-filled room, sleeping on a mattress that was placed directly on the floor next to a space heater. Johnson v. State, 341 Ga. App. 425, 801 S.E.2d 294 (2017).
Evidence was sufficient to convict the defendant of being at least a party to the offenses of malice murder and first-degree cruelty to children because the defendant admitted that the defendant was present on the night of the victim’s death while the co-indictee hit the victim, the defendant’s three-year-old daughter, with a belt continually and repeatedly on the victim’s body as the victim yelled and twisted trying to avoid the blows; the victim had internal bruising on both lungs, which caused massive internal blood loss into the victim’s chest; and the medical examiner concluded that the victim’s cause of death was blunt force trauma of the torso and head, with the contributing condition of soft tissue hemorrhage. Battle v. State, 305 Ga. 268, 824 S.E.2d 335 (2019).
Death resulting from or part of cruelty to children.
– Evidence was sufficient to support defendant’s convictions for felony murder in violation of O.C.G.A. § 16-5-1(c) and child cruelty in violation of O.C.G.A. § 16-5-70(b), where the record revealed that the eight-month old victim suffered a lacerated liver resulting from blunt force trauma to the abdomen, the injury was inflicted 12-24 hours prior to death, and that despite the infant’s obvious pain and tenderness in the abdominal area, defendant refused to take the infant, or to allow the parent to take the infant, to seek medical attention for fear that the baby would be taken away; although the indictment did not charge that defendant committed the predicate act of child cruelty with malice within the count alleging felony murder, such was not insufficient because the separate count alleging child cruelty indicated that it was committed with malice. Mikenney v. State, 277 Ga. 64, 586 S.E.2d 328 (2003).
Medical evidence showing that a child died of a combination of being shaken, blunt force trauma to the head, and injuries to the spinal cord, and evidence of bruising on the child’s head and torso, together with defendant’s varying versions of the events leading to the child’s death, authorized a jury to convict defendant of felony murder based on the crime of cruelty to a child. Miller v. State, 277 Ga. 707, 593 S.E.2d 659 (2004).
Jury was authorized to weigh the defendant’s assertion that the defendant “gently” shook a child who died while in defendant’s care against the other evidence, including the testimony of the child’s doctors, who said that the child’s injuries were the result of “major violent force.” Johnson v. State, 278 Ga. App. 66, 628 S.E.2d 183 (2006).
Evidence supported the defendant’s convictions of aggravated assault, aggravated battery, cruelty to children, and reckless conduct in connection with the death of the 16-month-old victim since: the defendant repeatedly fed the victim tomatoes despite the victim’s allergic reactions to the tomatoes; two days before the victim’s fatal injuries, the victim had numerous bruises, a black eye, and a split bottom lip; while the victim was in the hospital for the fatal injuries, the defendant repeatedly asked a babysitter to persuade the defendant’s five-year-old child to say that the child had taken the victim out of the bathtub; the defendant asked medical personnel whether it could be proven that the victim was shaken; and medical evidence showed that the victim’s death was consistent with violent shaking by a person of adult strength. Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Evidence supported the defendant’s convictions of malice murder, felony murder, and cruelty to children as: the victim had not experienced any unusual injuries prior to the time the defendant moved in with the victim’s mother; the defendant was alone in the house with the victim and the victim’s young brothers prior to the time the victim’s head began to swell and at various times on the night the victim died; the defendant told a co-worker that the defendant was beating the victim and the victim’s brothers; and the defendant also told an uncle that the defendant could not do anything with the victim and felt like punching the victim in the head as hard as the defendant could. Collum v. State, 281 Ga. 719, 642 S.E.2d 640 (2007).
Evidence supported the defendant’s convictions of malice murder, felony murder, and cruelty to children with regard to the death of the defendant’s 15-month-old child; although the defendant claimed to have not noticed anything wrong with the child until a codefendant said that the child was having difficulty breathing, the evidence authorized the jury to find that the victim was beaten so severely that the victim’s pancreas and duodenum were ruptured, that two to four hours was the maximum time that occurred between the injuries and the victim’s death, that the victim would have begun vomiting immediately after the fatal injuries were inflicted, and that the victim would have been in extreme pain. Jackson v. State, 281 Ga. 705, 642 S.E.2d 656 (2007).
Evidence supported the defendant’s convictions of felony murder while in the commission of cruelty to children in the first degree and making a false statement to a government agency after a 23-month-old child whom the defendant had been baby-sitting died from severe aspiration pneumonia due to brain swelling and bleeding on the surface of the brain caused by multiple blows to the child’s head and face; the defendant was the only adult with the child during the afternoon and early evening in question, the child had appeared uninjured and was walking when the child visited a store earlier in the day, the child had “pattern injury” contusions indicating that hair had been pulled out, a medical examiner testified that the child’s brain swelling would have prevented the child from performing normal functions such as walking, talking, or waking, and the defendant told several conflicting stories about how the child had been injured. Banta v. State, 282 Ga. 392, 651 S.E.2d 21 (2007).
There was sufficient evidence to support a conviction of felony murder, with cruelty to a child in the first degree as the underlying felony. The defendant was the child’s sole caregiver from 9:30 A.M. to 3:30 P.M. on October 30, the date that the child’s parent came to pick up the child and found the child unresponsive; a neighbor denied the defendant’s claim that the neighbor had said that the child’s other parent had shaken the child the day before; and a forensic pathologist testified that had the injuries been inflicted before 7:00 A.M. on October 30, the child would not have been acting normally when the child was dropped off at the defendant’s home as testified to by the child’s relatives. Bostic v. State, 284 Ga. 864, 672 S.E.2d 630 (2009).
Sufficient evidence was presented to convict a defendant of malice murder and cruelty to children under O.C.G.A. § 16-5-70(b) because the defendant testified that the defendant shook the five-year-old victim after the victim spit up dinner and in so doing, struck the victim’s head against the railing of a bunk bed; the victim died a few days later of massive head trauma and intracranial bleeding. Wright v. State, 285 Ga. 57, 673 S.E.2d 249 (2009).
Evidence that a defendant was the only person home with defendant’s 17-month-old son when the son became unresponsive, along with the defendant’s admission that the defendant had shaken defendant’s son to make the son stop crying and shaken the son again to try to wake the son up was sufficient to support the defendant’s convictions for involuntary manslaughter and child cruelty. Lewis v. State, 304 Ga. App. 831, 698 S.E.2d 365 (2010).
Evidence was sufficient to enable a rational trier of fact to find defendants guilty of felony cruelty to children since both defendants repeatedly beat the defendants’ eight-year-old son with a foot long glue stick, then forced the child into a wooden box, beating the boy about the head as the defendants did so, and when numerous medical experts testified that the cause of the child’s death was either blunt force trauma or asphyxiation. Smith v. State, 288 Ga. 348, 703 S.E.2d 629 (2010), aff’d, 2020 U.S. App. LEXIS 3975 (11th Cir. Ga. 2020).
Placing infant in plastic bag sufficient for conviction.
– Determination of a defendant’s intent to cause the particular harm, or the wanton and willful doing of an act with an awareness of a plain and strong likelihood that such harm might result, sufficient for conviction of the crime of cruelty to children is peculiarly a question for the jury; likewise, the determination of what is cruel or excessive physical or mental pain is a jury issue. The evidence was sufficient to support a conviction for cruelty where the jury could find that an infant was born alive and that defendant placed the child into plastic bags, thus causing the infant to suffocate; this evidence could support a jury finding that defendant maliciously caused the infant excessive physical or mental pain. Ferguson v. State, 267 Ga. App. 374, 599 S.E.2d 335 (2004).
Biting and kicking children.
– Evidence was sufficient to support a conviction of cruelty to children, O.C.G.A. § 16-5-70(b), because defendant admitted that defendant bit and kicked the child victim because defendant was angry and that defendant ripped hair from the child’s scalp in a fit of rage; defendant’s testimony that the child’s injuries were accidental did not warrant a reversal of the conviction. Kennedy v. State, 272 Ga. App. 347, 612 S.E.2d 532 (2005).
Biting a child.
– Despite the defendant’s challenge to the sufficiency of the evidence, specifically, that no evidence showed the malice element of a cruelty-to-children offense, and that the evidence failed to show the defendant harmed the police officer to support an obstruction offense, convictions on said offenses were upheld on appeal as: (1) the severity of the bite marks inflicted on the child victim allowed the court to infer malice; (2) actual harm to the officer was not an essential element of an obstruction charge; and (3) the defendant’s act of swinging at the officer’s face during an effort to resist arrest supported an obstruction. Sampson v. State, 283 Ga. App. 92, 640 S.E.2d 673 (2006).
Use of massager in front of child.
– Evidence was sufficient to convict the defendant of third-degree cruelty to children for molesting the nine-year-old victim in the presence of the victim’s twin brother as the evidence showed that the brother witnessed the defendant molest the victim by holding the massager against the victim’s vaginal area and that the defendant was aware that the brother was nearby when the defendant committed that act. Kruel v. State, 344 Ga. App. 256, 809 S.E.2d 491 (2018).
Neglect in supervising sufficient.
– There was sufficient evidence to support a conviction of second-degree cruelty to children based on the defendant’s failure to supervise the children; the defendant admitted that the children had been out of the house unsupervised several times on the day they were found drowned, a neighbor saw the children playing outside unsupervised on the afternoon they drowned, and witnesses testified to the defendant’s chronic neglect in supervising the children. Kain v. State, 287 Ga. App. 45, 650 S.E.2d 749 (2007), cert. dismissed, No. S08C0096, 2008 Ga. LEXIS 125 (Ga. 2008).
Failure to intervene supported conviction.
– Given the evidence that the defendant stood by and failed to intervene while the child victim’s mother repeatedly struck the crying three-year-old child with a tree branch, inflicting multiple injuries, the jury was authorized to conclude that the defendant had failed to intervene to prevent the injuries, thereby demonstrating a wilful, wanton, or reckless disregard for the child’s safety as required to support the defendant’s conviction for cruelty to a child in the second degree in violation of O.C.G.A. § 16-5-70(c). Pierre-Louis v. State, 329 Ga. App. 55, 763 S.E.2d 513 (2014).
Children do not need adult language to describe offense.
– Evidence was sufficient to support convictions of child molestation and cruelty to children under O.C.G.A. §§ 16-6-4 and16-5-70. From the testimony of the four-year-old victim, the victim’s parent, and an interviewer, the jury was authorized to find that the victim used the word “tutu” to refer to the child’s vaginal area, where the child said the defendant touched the child; it was completely unreasonable to require witnesses to describe the acts constituting the commission of a crime in statutory or technical language in order to prove the commission of such acts. Brookshire v. State, 288 Ga. App. 766, 655 S.E.2d 332 (2007).
Defense of involuntary intoxication not proved.
– Evidence was sufficient to convict a defendant on a charge of cruelty to children since the defendant failed to carry the initial burden of establishing by a preponderance of the evidence that the defendant was involuntarily intoxicated at the time the crime was committed, and there was at least some evidence before the jury of each element of cruelty to children that the state was required to prove. Stewart v. State, 291 Ga. App. 846, 663 S.E.2d 278 (2008).
Juvenile guilty of cruelty to children.
– Juvenile court properly denied a juvenile’s motion for a new trial with regard to the juvenile’s delinquency adjudication finding the juvenile guilty for aggravated assault, criminal property damage, cruelty to children, and reckless conduct arising from the shooting of a BB gun at a passing car. The juvenile was the only Caucasian identified in the group of youth; the juvenile admitted to hiding the BB gun; the juvenile did not dispute that the juvenile encouraged another youth to shoot the gun; and the judge was the final arbiter of the credibility and witness issues and had the province to reject the testimony of the juvenile and a parent that the juvenile did not shoot the gun. In the Interest of A.A., 293 Ga. App. 827, 668 S.E.2d 323 (2008).
Party to crime of cruelty to children.
– Jury was authorized to find that the defendant was a party to the codefendant’s crime of cruelty to children in the first degree in violation of O.C.G.A. §§ 16-2-20 and16-5-70(b) because the victim’s testimony showed that the defendant was present during the codefendant’s beating of the victim yet did nothing to stop the codefendant or otherwise help the victim; there was also evidence that the defendant was not only aware of prior abuse that the victim sustained via a belt but had also participated in such prior abuse. Tabb v. State, 313 Ga. App. 852, 723 S.E.2d 295 (2012).
Defendant eligible to serve ordered term of confinement.
– Trial court did not err in denying the defendant’s motion to correct an illegal sentence because in accordance with the plain language of the First Offender Act, O.C.G.A. § 42-8-65(c), during the defendant’s term of confinement, the defendant, who pled guilty to first degree cruelty to children, O.C.G.A. § 16-5-70, was deemed to be a convicted felon for purposes of the State-Wide Probation Act, O.C.G.A. § 42-8-35.4, and consequently, within a category of persons eligible to serve the ordered term of confinement at a probation detention center; the legislature is presumed to have had full knowledge of the First Offender Act, O.C.G.A. § 42-8-65(c), when the legislature enacted the State-Wide Probation Act, O.C.G.A. § 42-8-35.4. Mason v. State, 310 Ga. App. 118, 712 S.E.2d 76 (2011).
Child hearsay.
– Court of appeals properly held that the children’s out-of-court statements about sexual conduct that happened to each other in their presence were admissible under the Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), because the court did not err in declining to extend the holding of Woodard v. State, 269 Ga. 317 (1998), which was overruled to the defendant’s case; the defendant was convicted of first-degree child cruelty for causing cruel mental pain to the victims, yet the defendant made no claim that O.C.G.A. § 16-5-70(b) violated equal protection because the statute did not prohibit the same conduct toward an adult. Bunn v. State, 291 Ga. 183, 728 S.E.2d 569 (2012) (O.C.G.A. § 24-8-820 eliminated the portion of the 1995 amendment to former § 24-3-16 which was held unconstitutional in Woodard v. State).
Failure to defend children from sexual abuse.
– Mother’s conviction was affirmed because there was evidence from which the jury could infer that the mother was aware of the boyfriend’s sexual abuse of her daughters but did not adequately intervene. The evidence was therefore sufficient to support the mother’s convictions of cruelty to children in the first degree. Adorno v. State, 314 Ga. App. 509, 724 S.E.2d 816 (2012).
Conduct of raping and molesting victim.
– Evidence was sufficient to convict the defendant of cruelty to children in the first degree because the defendant’s conduct of raping and molesting the victim hurt the victim, made the victim feel awful, caused the victim to feel depressed, and gave the victim nightmares. Hunt v. State, 336 Ga. App. 821, 783 S.E.2d 456 (2016).
Merger with Other Offenses
Merger of charges against defendant for cruelty to children and contributing to the deprivation of a minor was not required because, although based on similar facts, each charge required proof of a fact not required to prove the other. Porter v. State, 243 Ga. App. 498, 532 S.E.2d 407 (2000).
Crimes of rape and cruelty to children did not merge as a matter of fact, as they constituted separate offenses and proof of separate elements; therefore, because the offenses did not merge, defendant was not punished twice for the same conduct. Currington v. State, 270 Ga. App. 381, 606 S.E.2d 619 (2004).
No merger of nonhomicide counts.
– Defendant’s convictions of involuntary manslaughter while in the commission of a simple battery, aggravated assault, aggravated battery, cruelty to children, and reckless conduct were not mutually exclusive, and the trial court did not err in not merging the nonhomicide counts upon sentencing. Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Child molestation, aggravated sexual battery, cruelty to children did not merge.
– In the defendant’s trial for aggravated sexual battery, O.C.G.A. § 16-6-22.2, the jury charge did not suggest that the element of “without consent” was established solely by the victim’s age; thus, the aggravated sexual battery charge was not a strict liability crime. The defendant completed the crime of aggravated sexual battery on the bed prior to molesting and causing the victim cruel or excessive physical or mental pain when the defendant followed the victim into the bathroom; the crimes did not merge. Womac v. State, 302 Ga. 681, 808 S.E.2d 709 (2017).
Conviction for cruelty to children merged with felony murder.
– Judgment convicting a defendant of cruelty to a child in the first degree and the sentence entered thereon were vacated because the crime should have merged for sentencing purposes with the defendant’s felony murder conviction based on the underlying felony of cruelty to a child in the second degree; the state agreed that the crimes merged in fact, and an examination of the evidence in the context of the trial court’s instructions to the jury indicated that the judgment and sentence had to be vacated. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).
Defendant’s conviction for cruelty to children had to be vacated because the felony murder of which the defendant was convicted was premised on cruelty to a child; thus, the predicate offense merged into the murder as a matter of law. Jones v. State, 292 Ga. 593, 740 S.E.2d 147 (2013).
Convictions for aggravated battery and cruelty to children did not merge since the evidence established that the victim was subjected to multiple injuries in addition to a broken arm, and that none of the injuries were relevant to defendant’s aggravated battery conviction, which was predicated upon the victim’s broken arm. Mashburn v. State, 244 Ga. App. 524, 536 S.E.2d 208 (2000).
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Aggravated battery and cruelty to children each requires proof of at least one additional element which the other does not, and the two crimes are not so closely related that multiple convictions are prohibited under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct establishes the commission of both aggravated battery and cruelty to children, the two crimes do not merge, and thus a defendant was properly convicted of both crimes (overruling Jones v. State, 276 Ga. App. 762 (624 S.E.2d 291) (2005); Etchinson v. State, 245 Ga. App. 449 (538 S.E.2d 87) (2000); and Harmon v. State, 208 Ga. App. 271 (430 S.E.2d 399) (1993)). Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Battery lesser included offense of cruelty to children.
– When the evidence was sufficient to establish that defendant repeatedly struck defendant’s nine-year-old child on the back, buttocks, and legs with defendant’s hand, leaving several visible, handprint-shaped bruises, battery was a lesser included offense of cruelty to children. Bennett v. State, 244 Ga. App. 149, 534 S.E.2d 881 (2000).
Reckless conduct was not lesser included offense of cruelty to children.
– Trial court did not err in not charging reckless conduct as a lesser included offense of cruelty to children under O.C.G.A. § 16-5-70; if the jury believed the defendant’s testimony, there was no conscious disregard of a substantial and unjustifiable risk, and the state’s evidence was that the defendant maliciously caused the child’s suffering. Banta v. State, 282 Ga. 392, 651 S.E.2d 21 (2007).
Cruelty to children merged with felony murder.
– Conviction and sentence for cruelty to children merged with conviction and sentence for felony murder. Grayer v. State, 282 Ga. 224, 647 S.E.2d 264 (2007).
No merger with malice murder.
– Offense of cruelty to children requires proof that the victim was younger than eighteen, whereas the offense of malice murder only requires proof that the victim was a human being. Accordingly, to prove cruelty to children, at least one fact – the age of the victim – had to be established in addition to the facts used to establish malice murder, and the offense of cruelty to children therefore was not included as a matter of fact in the offense of malice murder. McCartney v. State, 262 Ga. 156, 414 S.E.2d 227 (1992), overruled on other grounds, 287 Ga. 881, 700 S.E.2d 394 (2010).
In a prosecution for malice murder, the trial court did not err in refusing to give an instruction on cruelty to children as an included offense. Loren v. State, 268 Ga. 792, 493 S.E.2d 175 (1997).
When the defendant was convicted of malice murder, felony murder, and cruelty to children, and there was a single victim, it was error to sentence the defendant to multiple life terms on the malice murder and felony murder counts; because the victim’s age was an element of the crime of cruelty to children that was not included in malice murder, the underlying cruelty to children conviction did not merge into malice murder as a matter of fact. Collum v. State, 281 Ga. 719, 642 S.E.2d 640 (2007).
Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and16-5-70(b), the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, O.C.G.A. § 16-5-1(a), and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b). Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010).
Cruelty to children can be lesser included crime of aggravated assault with deadly weapon.
– Cruelty to children, which requires only “maliciously [causing] the child cruel or excessive physical . . . pain,” can be a lesser included crime under an indictment for aggravated assault with a deadly weapon. Williams v. State, 144 Ga. App. 130, 240 S.E.2d 890 (1977).
Cruelty to children invoking felony-murder rule. See Holt v. State, 247 Ga. 648, 278 S.E.2d 390 (1981).
Cruelty to children may constitute the underlying felony in a felony murder prosecution. Estes v. State, 251 Ga. 347, 305 S.E.2d 778 (1983).
Convictions for involuntary manslaughter and cruelty to children were not inconsistent because the jury could have found from the evidence both that the defendant maliciously caused the victim excessive pain, and that defendant’s actions caused the victim’s death, though defendant may not have intended to kill the victim. Sanders v. State, 245 Ga. App. 561, 538 S.E.2d 470 (2000).
Verdicts of involuntary manslaughter and felony murder not mutually exclusive.
– Verdicts convicting defendants of involuntary manslaughter under O.C.G.A. § 16-5-3 and felony murder were not mutually exclusive since the evidence authorized the jury to logically conclude that defendants had committed several acts of child abuse, some of which may have been non-felony acts of abuse that inadvertently led to or contributed to the child’s death and others that may have constituted felony cruelty to children, under O.C.G.A. § 16-5-70(b), which would have served as the underlying basis for the felony murder conviction. Smith v. State, 288 Ga. 348, 703 S.E.2d 629 (2010), aff’d, 2020 U.S. App. LEXIS 3975 (11th Cir. Ga. 2020).
Aggravated assault charge.
– Cruelty to children merged into count alleging aggravated assault, where both counts alleged the same facts, i.e., that defendant shot defendant’s daughter. Cranford v. State, 186 Ga. App. 862, 369 S.E.2d 50 (1988).
Because separate cruelty to children and aggravated assault counts were based upon acts committed by the defendant on the day preceding the death of the victim, neither of those convictions merged into the felony murder count also filed against the defendant and, accordingly, separate sentences for those crimes were authorized. Christian v. State, 281 Ga. 474, 640 S.E.2d 21 (2007).
Cruelty to children and child molestation do not merge.
– Trial court did not err in failing to merge the defendant’s convictions for child molestation, O.C.G.A. § 16-6-4(a), and cruelty to children because each crime required proof of at least one additional element that the other did not, and thus, even if the same conduct established the commission of both child molestation and cruelty to children, the two crimes did not merge; cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b), and in contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant’s or the child’s sexual desires under O.C.G.A. § 16-6-4(a). Chandler v. State, 309 Ga. App. 611, 710 S.E.2d 826 (2011).
Cruelty to children conviction did not merge with aggravated assault or false imprisonment.
– Defendant’s cruelty to children in the first degree charge did not merge with the aggravated assault or false imprisonment charge because neither aggravated assault nor false imprisonment required proof that the victim suffered cruel or excessive physical or mental pain. Kirt v. State, 309 Ga. App. 227, 709 S.E.2d 840 (2011).
Conviction for cruelty to children did not merge with the rape conviction since the evidence supporting the rape conviction was not the same evidence that supported the cruelty to children conviction. Brown v. State, 190 Ga. App. 678, 379 S.E.2d 598, cert. denied, 190 Ga. App. 897, 379 S.E.2d 598 (1989).
Lesser offense of cruelty to children did not merge into the greater offenses of rape and aggravated child molestation, where the facts that the victim was threatened and terrorized, that the victim screamed in pain, and that the victim continued to experience pain and discomfort and would suffer forever from the venereal diseases the victim contracted from defendant were not needed to prove the elements of rape and aggravated child molestation. Ranalli v. State, 197 Ga. App. 360, 398 S.E.2d 420 (1990).
Defendant’s convictions for rape and cruelty to a child did not merge for sentencing purposes, as additional evidence, beyond that necessary to prove rape, existed, specifically, that the rapes caused the victim cruel and excessive physical and mental pain; moreover, after the rapes, the victim was upset, fearful, did not feel safe at home, and cried repeatedly when recounting the episodes to a counselor. Barber v. State, 283 Ga. App. 129, 640 S.E.2d 696 (2006).
Trial court did not err in declining to merge the defendant’s convictions of cruelty to a child and rape for purposes of sentencing because each required proof of a fact that the other did not; specifically, the offense of cruelty to a child required, among other things, a showing that the defendant maliciously caused cruel or excessive mental pain to a child while the offense of rape required, among other things, a showing that the defendant had carnal knowledge of the victim forcibly and against the victim’s will. Pendley v. State, 308 Ga. App. 821, 709 S.E.2d 18 (2011).
Trial court properly declined to merge the rape and cruelty to children offenses because evidence that the defendant used tape to silence the victim as the victim cried during the abuse and that the defendant caused injury and scarring to the victim’s anus that made going to the bathroom painful was required for the latter conviction. Hambrick v. State, 353 Ga. App. 666, 839 S.E.2d 664 (2020).
Multiple cruelty to children charges merged.
– In a trial in which defendant was convicted of three counts of cruelty to children in violation of O.C.G.A. § 16-5-70(b), the trial court erred in failing to merge those counts for sentencing; the criminal conduct constituted a single course of conduct, defendant’s failure to obtain medical treatment for the child for three days despite the child’s two broken legs and broken arm, and there was no evidence of legislative intent to allow multiple punishments for the same course of conduct. Withrow v. State, 275 Ga. App. 110, 619 S.E.2d 714 (2005).
No merger with reckless driving.
– Trial court properly did not merge the appellant’s convictions for cruelty to children in the second degree and serious injury by vehicle by the act of reckless driving with respect to the same victim for the purpose of sentencing because each offense required proof of a different wrongful act as the cruelty to children conviction required proof of facts not required by the serious injury by vehicle conviction and vice versa. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015).
Use of fighting words not lesser included offense.
– Offense of use of fighting words is not included in the offense of cruelty to children as a matter of law. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).
Evidence authorized a jury charge on the offense of “fighting words,” where defendant schoolteacher was indicted for battery and cruelty to children, and the proof tracked the indictment which set forth words defendant said to a student which would fall within the perimeter of that forbidden by the “fighting words” statute. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).
Murder conviction upheld, despite lesser-charge acquittal.
– In a trial for the murder of a five-year-old child, the felony murder conviction need not be set aside because a finding of not guilty of cruelty to children is allegedly inconsistent with a finding of guilty of felony murder, when the underlying felony is cruelty to children, where there is no doubt that the evidence showed the elements of the underlying felony, cruelty to a child, and that the jury was authorized to find the defendant guilty of a felony murder. Robinson v. State, 257 Ga. 194, 357 S.E.2d 74 (1987).
Acquittal of defendant on a child molestation charge did not require an acquittal on the cruelty to children charge. Chastain v. State, 239 Ga. App. 602, 521 S.E.2d 657 (1999).
Multiple convictions for cruelty to children.
– In a trial in which defendant’s convictions for five counts of cruelty to children consisted of one count for injuring girlfriend’s infant child and one count for each day that defendant did not obtain medical care for the child, the trial court, pursuant to O.C.G.A. § 16-5-70(b), erred in failing to merge for sentencing purposes the four cruelty to children counts that were related to each day that defendant failed to obtain medical treatment for the injured child; the criminal conduct constituted a single course of conduct spanning four days, not a separate offense for each day. McKee v. State, 275 Ga. App. 646, 621 S.E.2d 611 (2005).
Because the inmate’s 28 U.S.C. § 2254 petition was filed on March 19, 2009, some eight years after the one-year limitations period expired, the inmate’s petition was clearly time-barred, and the inmate could not rely on the doctrine of equitable tolling to excuse the inmate from the untimely filing because: (1) the filing in state court could not serve to toll a limitations period that had already expired, nor could it reset the one-year period for the filing of a 28 U.S.C. § 2254 petition; (2) the inmate did not meet the first prong of the equitable tolling test, as the inmate had not established that the inmate pursued the inmate’s rights diligently in the eight years between the inmate’s conviction and first post-conviction filing in the state court, or in the nine years between the inmate’s conviction and this habeas petition; (3) although it was true that a Georgia court may resentence a defendant at any time when the sentence was void, the inmate’s sentence was not illegal or void; and (4) the inmate’s argument that the two cruelty to children charges under O.C.G.A. § 16-5-70(b) should have merged was without merit because the first charge against the inmate was complete when the inmate bit the child, and the second arose when the inmate failed to provide the child with medical care, which meant defendant’s sentence was not illegal or void. Edwards v. Owens, F. Supp. 2d , F. Supp. 2d (M.D. Ga. Feb. 11, 2010).
Trial court erred in failing to merge Counts 3 and 4, which alleged two counts of cruelty to children in the second degree as to the first child, for sentencing purposes as each of the counts asserted that the defendant’s different acts caused a different type of harm, and each required different evidence to prove harm, because Count 3 charged the defendant with causing excessive mental pain by confining the child in a room for months without sufficient mental stimulation and social interaction; and Count 4 charged the defendant with causing cruel and excessive physical pain by failing to provide the child with physical exercise. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).
Defendant’s child-cruelty convictions did not merge because the convictions under different subsections each required proof of a different fact, and the convictions based on confinement in different locations did not merge because one crime was complete before the commission of a subsequent crime. Franklin v. State, 351 Ga. App. 539, 831 S.E.2d 186 (2019), cert. denied, No. S19C1590, 2020 Ga. LEXIS 107 (Ga. 2020).
Rule of lenity did not apply to multiple convictions.
– In a criminal trial on charges that the defendant allowed the repeated rapes of the defendant’s 11-year-old child, the rule of lenity did not require that the defendant’s felony convictions for being a party to rape and cruelty to children should be subsumed by the misdemeanor conviction for contributing to the deprivation of children because different facts were necessary to prove the offenses; the rape conviction required proof under O.C.G.A. §§ 16-2-20 and16-6-1(a)(1) that the defendant took affirmative steps to aid the rapist, the cruelty to children conviction required proof under O.C.G.A. § 16-5-70(b) that the defendant caused excessive mental pain to the child, and the conviction for contributing to the deprivation of a minor required proof under O.C.G.A. §§ 15-11-2(8)(A) and16-12-1(b)(3) that the defendant failed to provide the child with proper care necessary for the child’s health, which the state proved by showing that the defendant failed to seek prenatal care for the child even though the defendant knew that the child was pregnant. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).
Deprivation of minor conviction did not merge with cruelty to children conviction.
– Trial court did not err in failing to merge the defendant’s misdemeanor convictions for contributing to the deprivation of a minor, O.C.G.A. § 16-12-1(b)(3), with the defendant’s corresponding felony convictions for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c), pursuant to the “required evidence” test, the offenses did not merge as a matter of law; the offenses of cruelty to children in the second degree and contributing to the deprivation of a minor each have at least one essential element that the other does not: causing the child cruel or excessive physical or mental pain and wilfully failing to provide the child with the proper care necessary for his or her health, respectively. Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362 (2011).
Jury Instructions
Failure to charge on self-defense held reversible error.
– Defendant’s sole defense, self-defense, would have negated an element of the offense of child cruelty, malice, and it was error not to charge the jury accordingly. Stiles v. State, 242 Ga. App. 484, 529 S.E.2d 913 (2000).
Reckless conduct charge was not warranted in a prosecution for cruelty to children in the first degree since the evidence showed that defendant intended actions and intended to cause pain to the victim. Allen v. State, 247 Ga. App. 10, 543 S.E.2d 45 (2000).
When the evidence shows either the commission of the completed offense as charged or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense. Therefore, since the jury could either believe the defendant’s testimony that an infant was already dead when the defendant put the infant in a plastic bag, thus indicating that neither the crime of cruelty to children nor the crime of reckless conduct was committed, or that the child was alive, thus proving the crime of cruelty to children under O.C.G.A. § 16-5-70, the trial court was not required to give the jury a charge on reckless conduct in the defendant’s trial for cruelty. Ferguson v. State, 267 Ga. App. 374, 599 S.E.2d 335 (2004).
With regard to defendant’s convictions on two counts of cruelty to children in the first degree and one count of aggravated battery, the trial court did not err in failing to charge the jury on reckless conduct as a lesser included offense of each of the indicted offenses as defendant admitted to beating the three-year-old victim with a belt once or twice a day for doing bad things and did so intentionally. It was inconsequential that defendant intended the beatings to constitute a form of discipline, as opposed to abuse, because every person is presumed to intend the natural and probable consequences of the person’s conduct, particularly if that conduct is unlawful and dangerous to the safety or lives of others. Glover v. State, 292 Ga. App. 22, 663 S.E.2d 772 (2008).
Jury instruction on justifiable parental discipline.
– Trial counsel was not ineffective for failing to object to the trial court’s jury charge on justifiable parental discipline, O.C.G.A. § 16-3-20(3), because the trial court was authorized to give a justifiable parental discipline jury charge that was adequately adjusted to the evidence in the case; because it was for the jury to decide whether or not the codefendant’s conduct caused the victim to suffer cruel or excessive physical pain, any objection to the trial court’s jury charge on justifiable parental discipline would have lacked merit. Tabb v. State, 313 Ga. App. 852, 723 S.E.2d 295 (2012).
Jury instruction on statute of limitation.
– Trial counsel was ineffective in failing to request a jury instruction on the statute of limitation with regard to the child-cruelty charge because in the indictment the state did not allege that the statute of limitation for child cruelty was tolled based on the victim being under the age of 16; thus, such proof was inadmissible at trial. Slack v. State, 354 Ga. App. 727, 841 S.E.2d 231 (2020).
Failure to charge on defense of accident not error. See Fain v. State, 165 Ga. App. 188, 300 S.E.2d 197 (1983).
Whether conduct was reasonable discipline was jury question.
– Evidence was sufficient to support the defendant’s conviction of cruelty to a child and false imprisonment, O.C.G.A. §§ 16-5-70(c) and16-5-41(a), respectively, based on the defendant locking the defendant’s seven-year-old son in a wooden box the defendant built for the purpose and also binding the child in a sleeping bag; it was for the jury to determine if these actions were justified as reasonable parental discipline. Leslie v. State, 341 Ga. App. 731, 802 S.E.2d 674 (2017).
Jury question.
– What is cruel and unreasonable treatment of child is primarily question for jury. Crowe v. Constitution Publishing Co., 63 Ga. App. 497, 11 S.E.2d 513 (1940).
Inconsistent statements of victim went to weight and was for jury consideration.
– There was sufficient evidence to support a defendant’s conviction for child cruelty for causing the defendant’s child cruel and excessive pain by failing to seek medical attention for the child and instructing the child to conceal the cause of the injuries, which resulted from the defendant’s romantic friend burning the child repeatedly with a cigar. The fact that the child gave inconsistent statements by acknowledging what happened to officials but disavowing the same at trial was an issue of witness credibility and the weight of the evidence was for the jury to decide. Freeman v. State, 293 Ga. App. 490, 667 S.E.2d 652 (2008).
Failure to instruct on child endangerment.
– Conviction for child endangerment was reversed because the trial court failed to instruct the jury on the offense. Furlow v. State, 276 Ga. App. 332, 623 S.E.2d 186 (2005).
Failure to charge on involuntary manslaughter in child’s death.
– When the defendant was charged with felony murder, with cruelty to a child in the first degree as the underlying felony, the trial court properly denied the defendant’s request for a jury instruction on felony involuntary manslaughter under O.C.G.A. § 16-5-3(a) as a lesser included offense. Contrary to the defendant’s argument, the state did not present any evidence that the child died as a result of lack of medical care; furthermore, because the defendant argued that it was the child’s parent who shook the child and that the defendant only tried to revive the child, such an instruction was not necessary because the evidence showed either the charged crime or no crime. Bostic v. State, 284 Ga. 864, 672 S.E.2d 630 (2009).
Failure to charge on accident.
– In a prosecution for felony murder and the predicate felonies of aggravated battery, O.C.G.A. § 16-5-24(a), and first-degree child cruelty, O.C.G.A. § 16-5-70, assuming arguendo that the evidence supported an instruction on accident, the trial court’s failure to give that instruction was not reversible error as the jury’s conclusion that the defendant acted with malice, which was supported by overwhelming evidence, necessarily meant that the jury would have rejected any accident defense. Sears v. State, 290 Ga. 1, 717 S.E.2d 453 (2011).
Failure to charge specifically on reasonable discipline not error.
– Implicit in the definition of “cruelty to children” found in O.C.G.A. § 16-5-70 is an element of unreasonableness, and a failure on the court’s part to charge specifically on reasonable discipline was not error. Allen v. State, 174 Ga. App. 206, 329 S.E.2d 586 (1985).
Failure to charge on simple battery.
– Trial court did not err in refusing to charge on simple battery under O.C.G.A. § 16-5-23 as a lesser included offense of cruelty to children; there was no evidence to support the offense of simple battery because the defendant claimed that the child accidentally fell while the defendant was playing with the child. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008).
Although the trial court should have given the defendant’s requested charge on battery, O.C.G.A. § 16-5-23.1, since the evidence authorized a finding that the defendant intentionally caused substantial physical harm and visible bodily harm to the victims by beating the victims with a bat and a belt, the failure to give the battery charge was harmless error in light of the overwhelming evidence of the commission of the greater offense, cruelty to children, O.C.G.A. § 16-5-70; the indictment alleged that the defendant unlawfully and maliciously caused the victims cruel and excessive physical and mental pain by striking the victims about the body with a belt and wooden bat. Dinkler v. State, 305 Ga. App. 444, 699 S.E.2d 541 (2010), overruled on other grounds, Stuart v. State, 318 Ga. App. 839, 734 S.E.2d 814 (2012).
Trial court did not err in failing to charge the jury on simple battery, O.C.G.A. § 16-5-23, as a lesser included offense of cruelty to a child in the first degree, O.C.G.A. § 16-5-70(b), because the evidence did not authorize such a charge; if the jury believed that an accident occurred, no battery was committed, but if the jury accepted the state’s evidence, then the jury was authorized to find that the defendant intentionally assaulted the victim, thereby maliciously causing the victim cruel and excessive physical pain. Furthermore, there was no written request to charge on simple battery in the record. Elrod v. State, 316 Ga. App. 491, 729 S.E.2d 593 (2012).
Failure to charge on reckless conduct.
– When the defendants were charged with first-degree cruelty to children under O.C.G.A. § 16-5-70 on the ground that the defendants had caused the victim physical and mental pain by binding the victim’s arms and legs, the trial court properly refused to charge on the lesser included offense of reckless conduct under O.C.G.A. § 16-5-60(b). Reckless conduct involved bodily harm, not mental pain; furthermore, as the defendants claimed that the defendants had acted out of love to prevent the victim from using drugs, their theory of defense was one of justification, on which the trial court had instructed. Hafez v. State, 290 Ga. App. 800, 660 S.E.2d 787 (2008).
Trial court did not err in failing to charge the jury that malice was an essential element of either second-degree cruelty to children or family violence battery, as malice, prior to a 2004 amendment, was not an element of cruelty to children, and was not an element to the offense of family violence battery. Breazeale v. State, 290 Ga. App. 632, 660 S.E.2d 376 (2008).
Failure to object to jury charge waived error.
– Appeals court rejected the defendant’s argument that the trial court erroneously instructed the jury on cruelty to children in the third degree because a proper charge would have required the jury to find that the defendant committed a forcible felony, battery, or family violence battery, as the defendant failed to object to the charge or reserve objections at the conclusion of the jury instructions, and hence, waived any error. Amis v. State, 277 Ga. App. 223, 626 S.E.2d 192 (2006).
Denying request to recharge jury on affirmative defenses not reversible error.
– Because no abuse of discretion resulted from the trial court’s order denying defense counsel’s request that the court recharge the jury on the affirmative defenses of accident and reasonable discipline of a minor, but the court granted the jury’s request for a recharge as to the offenses of malice murder and felony murder, the defendant’s felony murder and cruelty to children convictions were affirmed. Johnson v. State, 281 Ga. 770, 642 S.E.2d 827 (2007).
Jury instructions proper.
– Because the trial court properly instructed the jury on the law regarding the use of prior consistent statements and on the defense of accident, the appeals court lacked any reason to reverse the defendant’s aggravated battery and cruelty to children convictions. Watkins v. State, 290 Ga. App. 41, 658 S.E.2d 812 (2008).
Because the instructions given by the trial court adequately expressed the requirement that the children’s deaths and/or injuries had to have been the proximate result of the alleged criminal acts of involuntary manslaughter in the commission of reckless conduct and cruelty to children in the second degree, the trial court did not err in declining to give the defendant’s additional requested instructions on proximate cause. Johnson v. State, 341 Ga. App. 425, 801 S.E.2d 294 (2017).
Trial court did not err in charging the jury on the entire statutory definition of cruelty to children in the first degree, rather than charging only the portion of the statute dealing with maliciously causing cruel or excessive pain to a child as alleged in the indictment because the instructions sufficiently limited the jury’s consideration to elements of the offense as charged in the indictment. Rowland v. State, 349 Ga. App. 650, 825 S.E.2d 231 (2019).
Cruel or excessive physical pain is jury question.
– Determination of what is cruel or excessive physical or mental pain is to be made by the jury. Hopkins v. State, 209 Ga. App. 376, 434 S.E.2d 74 (1993); Sims v. State, 234 Ga. App. 678, 507 S.E.2d 845 (1998).
“Cruel” and “excessive” are adjectives that inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts “cruel” or “excessive” pain. Sims v. State, 234 Ga. App. 678, 507 S.E.2d 845 (1998).
Defendant’s intent is a question of fact to be determined upon consideration of “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted” under O.C.G.A. § 16-2-6, and the jury’s finding is not to be set aside unless clearly erroneous. McGahee v. State, 170 Ga. App. 227, 316 S.E.2d 832 (1984).
Good character charge erroneous.
– In a prosecution for cruelty to children, a good character charge was erroneous as: 1) the charge failed to inform the jury that the defendant’s good character was a substantive fact, and that evidence of good character had to be considered in connection with all other evidence; and 2) the charge failed to instruct the jury that good character in and of itself could be sufficient to create a reasonable doubt as to guilt. Hobbs v. State, 299 Ga. App. 521, 682 S.E.2d 697 (2009).
Procedural Issues
Evidence of defendant’s silence.
– Because defendant’s cross-examination impeached the investigator, inferring the investigator was negligent or underhanded in failing to take notes during defendant’s interview on assault charges and charges of child cruelty under 18 U.S.C. §§ 7 and 13, and O.C.G.A. § 16-5-70, and the government’s redirect rehabilitated the investigator by clarifying that the investigator had acted in accordance with the investigator’s department’s policy and that the failure to take notes was due to defendant ending the interview, no due process violation occurred. United States v. Francisco-Gutierrez, F.3d (11th Cir. Sept. 21, 2007)(Unpublished).
Indictment not required to allege party status.
– Indictment’s failure to allege that a defendant was a party to aggravated assault, aggravated battery, and first-degree child cruelty under O.C.G.A. §§ 16-5-21(a),16-5-24(a), and16-5-70(b) did not require a showing that the defendant was the principal perpetrator under O.C.G.A. § 16-2-21; the defendant’s status as a party to the crimes was not an essential element used to increase the sentences for the crimes, and the trial court did not err in instructing the jury that the defendant could be convicted either as the principal perpetrator of the crimes or as a party thereto. Hill v. State, 282 Ga. App. 743, 639 S.E.2d 637 (2006).
Sufficiency of indictment.
– Indictment for second-degree cruelty to children which stated that the defendant failed to reasonably supervise and reasonably watch the defendant’s children, who drowned, was good against a general demurrer; although the failure to reasonably supervise or watch one’s children might not in and of itself constitute criminal negligence, such dereliction certainly could rise to that level depending on the circumstances. Kain v. State, 287 Ga. App. 45, 650 S.E.2d 749 (2007), cert. dismissed, No. S08C0096, 2008 Ga. LEXIS 125 (Ga. 2008).
Trial court did not err in denying the defendant’s motion for a directed verdict of acquittal on the ground that there was insufficient evidence that the crimes for which the defendant was charged, aggravated assault, making terroristic threats, and cruelty to children in the third degree, were committed on the date alleged in the indictment because there was sufficient evidence to support the allegations of the indictment; the exact date of the crimes was not a material allegation of the indictment because the exact date was not an essential element with respect to any of the charged offenses, and the date of the crimes proved at trial was prior to the return of the indictment and within the limitation periods for the crimes. Coats v. State, 303 Ga. App. 818, 695 S.E.2d 285 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Specifying specific date in indictment not required.
– In a child abuse case, trial counsel was not ineffective for failing to file a special demurrer to establish the date of the crime as a material allegation of the indictment because the exact date was not a material allegation of the indictment and the evidence showed that the victim was beaten by the defendant on October 2, 2008, and that the co-defendant beat the victim with belts on other occasions, and other evidence showed that the victim’s scars were a year old or less; therefore, the state proved that child cruelty occurred within the statute of limitation. Moore v. State, 319 Ga. App. 766, 738 S.E.2d 348 (2013).
Trial court erred in denying the defendant’s special demurrer to the indictments alleging three counts of cruelty to children in the second degree to two of the defendant’s children as the date range in each count was not too broad to determine when the alleged crimes were committed because the defendant did not offer any reason, such as an alibi defense, that would make the date range material to the state’s case; the defendant did not show that the defendant was prejudiced by the state’s failure to provide specific dates; and the defendant failed to show that the state was able to allege a specific date or a more narrow range of dates. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).
Venue appropriate.
– Trial court did not err in denying the defendant’s motion for new trial because the state did not fail to prove venue beyond a reasonable doubt as to the counts of cruelty to children in the second degree for fracturing the second victim’s ribs and cruelty to children in the first degree for fracturing the first victim’s ribs and a leg because the evidence showed that the defendant and the children’s mother moved with their children to an apartment in Clayton County in April 2009 and that they were the children’s sole caretakers; that the victims’ injuries were discovered in July 2009; and a doctor testified that the bone fractures had to have occurred at least one to two weeks in the past and at most a few months in the past. Freeman v. State, 333 Ga. App. 6, 775 S.E.2d 258 (2015).
Elements of proof.
– To prove the crime of cruelty to children in the first degree, there must be evidence establishing the age of the children, that the children suffered physical or mental pain, that the pain was cruel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in so doing. Sims v. State, 234 Ga. App. 678, 507 S.E.2d 845 (1998).
Expert testimony about comparable child beatings relevant.
– Testimony of witnesses from the Division of Family and Children’s Services and the county about comparable child beatings over the course of their experience was relevant to the issue of excessive physical pain, an essential element of the crime of cruelty to children, since the witnesses were qualified as experts in this field and their testimony concerned the physical extent of the beatings at issue. Cherry v. State, 174 Ga. App. 145, 329 S.E.2d 580 (1985).
Motion to withdraw guilty plea.
– Trial court did not err in denying the defendant’s motion to withdraw the guilty plea to armed robbery, O.C.G.A. § 16-8-41(a), aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), cruelty to children in the first degree, O.C.G.A. § 16-5-70(b), and possession of a firearm during the commission of a felony, O.C.G.A. § 16-11-106(b)(1), because the state met the state’s burden of showing that the defendant understood the constitutional rights the defendant was giving up by pleading guilty, that the defendant understood that since the plea was non-negotiated, the trial court would sentence the defendant to at least ten years imprisonment and could sentence the defendant to a maximum sentence of life in prison, and that the defendant knowingly and voluntarily entered the guilty plea in order to avoid a trial on the indicted charges. Carson v. State, 314 Ga. App. 225, 723 S.E.2d 516 (2012), overruled on other grounds, Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013).
Guilty plea involuntary when explanation of criminal negligence inadequate.
– Defendant’s guilty plea to second degree cruelty to children in violation of O.C.G.A. § 16-5-70(c) was not knowing and voluntary because the defendant was not adequately informed that the defendant’s failure to seek medical care for the defendant’s child after the boyfriend broke the child’s leg was required to rise to a level of willful, wanton, or reckless disregard for the child’s safety under O.C.G.A. § 16-2-1(b). Kennedy v. Primack, 299 Ga. 698, 791 S.E.2d 819 (2016).
Inconsistent verdicts not found.
– In a felony murder case involving cruelty to a child, the defendant’s convictions for involuntary manslaughter based on simple battery were affirmed because the predicate offense for involuntary manslaughter was simple battery and the intent element of simple battery was not at all logically inconsistent with the mens rea required for the greater offense of aggravated assault, aggravated battery, or cruelty to children; therefore, the verdicts were not inconsistent. Griffin v. State, 296 Ga. 415, 768 S.E.2d 515 (2015).
New trial not warranted.
– Defendant would not be entitled to a new trial even if the defendant were right that there was sufficient evidence to support a conviction for cruelty to children based only on one of the predicate offenses as the defendant did not dispute that there was sufficient evidence to support a conclusion that the defendant committed the crime of first degree cruelty to children. Jones v. State, 301 Ga. 94, 799 S.E.2d 749 (2017).
Sufficiency of charge.
– When there is no demurrer to the accusation charging the defendant with ill treating a named minor child contrary to law, and the court gives in the charge the exact language of the statute and then immediately gives in the exact language of the accusation the particular charge set out in it, the instructions, in the absence of request, sufficiently present the issue which they are to try and no reversible error appears when the charge is considered as a whole. Roseberry v. State, 78 Ga. App. 324, 50 S.E.2d 771 (1948).
Trial court did not commit reversible error by charging the jury on the entire code section of cruelty to children and failing to give limiting instruction in its recharge; the jury instructions, taken as a whole, did not mislead the jury or require defendant to defend against a charge of cruelty to children that was not alleged in the indictment. Wiggins v. State, 272 Ga. App. 414, 612 S.E.2d 598 (2005), aff’d in part and rev’d in part, 280 Ga. 268, 626 S.E.2d 118 (2006).
Defendant’s aggravated assault and cruelty to children convictions were upheld on appeal as: (1) the prosecutor’s closing argument comments did not inject a personal opinion as to the veracity of the witnesses and the appeal to the jury was to make the community safer; (2) the trial court charged the jury fully on defendant’s justification and self-defense claims, and thus, did not err in declining to instruct the jury on mistake of fact; and (3) the appeals court failed to see how jury charges on guilt by association, bare suspicion, or mere presence were appropriate. Navarro v. State, 279 Ga. App. 311, 630 S.E.2d 893 (2006).
Defendant’s testimony held insufficient to raise the defense of accident. See Grubbs v. State, 167 Ga. App. 365, 306 S.E.2d 334 (1983).
Relevant evidence.
– In a defendant’s trial for cruelty to a child, a nurse’s testimony as to her decision to report an incident to a child services agency was relevant to the child’s care and future well-being; the trial court had wide discretion in determining relevancy and materiality and, when relevancy was doubtful, the evidence was properly admitted and the evidence’s weight was left for the jury’s determination. Revells v. State, 283 Ga. App. 59, 640 S.E.2d 587 (2006).
Defense of accident.
– Trial court was not required, sua sponte, to instruct the jury that the state had the burden to disprove a defense of accident beyond a reasonable doubt, and the trial court’s instructions in defendant’s trial on charges of felony murder and cruelty to children in the first degree were adequate in the absence of a request for an additional charge; however, the state supreme court remanded the case so the trial court could hold a hearing on defendant’s claim that defendant was denied effective assistance of trial counsel. Shadron v. State, 275 Ga. 767, 573 S.E.2d 73 (2002).
Inconsistent verdict not reversible error.
– Conviction for cruelty to children was not the result of reversible error, even though defendant was acquitted of rape, false imprisonment, and sexual battery; Georgia does not recognize the inconsistent verdict rule. Wiggins v. State, 272 Ga. App. 414, 612 S.E.2d 598 (2005), aff’d in part and rev’d in part, 280 Ga. 268, 626 S.E.2d 118 (2006).
Verdict not inconsistent.
– Verdicts were not necessarily inconsistent where the defendant was acquitted of family violence battery but convicted of third-degree cruelty to children because: (1) the appellate court could not know, and should not speculate, why a jury acquitted a defendant on a predicate offense, but convicted on the compound offense; (2) the jury was authorized to believe an officer’s testimony about a red mark under the victim’s right eye that was caused by an altercation between the victim and the defendant which occurred in the presence of the victim’s children; and (3) the victim’s prior inconsistent statement was admissible as substantive evidence of the defendant’s guilt. Amis v. State, 277 Ga. App. 223, 626 S.E.2d 192 (2006).
RESEARCH REFERENCES
Am. Jur. 2d.
– 6 Am. Jur. 2d, Assault and Battery, § 26. 23 Am. Jur. 2d, Desertion and Nonsupport, §§ 1 et seq., 29 et seq. 42 Am. Jur. 2d, Infants, § 15 et seq. 59 Am. Jur. 2d, Parent and Child, §§ 10, 26, 27.
Public School Liability: Constitutional Tort Claims for Excessive Punishment and Failure to Supervise Students, 48 Am. Jur. Trials 587.
Trial Report: Third Party Suit Against Therapists for Implanting False Memory of Childhood Molestation, 57 Am. Jur. Trials 313.
When Clergy Fail Their Flock: Litigating the Clergy Sexual Abuse Case, 91 Am. Jur. Trials 151.
C.J.S.
– 43 C.J.S., Infants, § 195. 67A C.J.S., Parent and Child, § 170 et seq.
ALR.
– Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.
Who has custody or control of child within terms of penal statute punishing cruelty or neglect by one having custody or control, 75 A.L.R.3d 933.
Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.
Parents’ criminal liability for failure to provide medical attention to their children, 118 A.L.R.5th 253.
Criminal liability of nonparent for failure to obtain medical treatment for minor based on duty of one acting in loco parentis, 97 A.L.R.6th 539.
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