Erica Lashae Graham v. State

• Court: Court of Appeals of Georgia
• Decided: March 22, 2013
• Docket: A12A2237
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

March 22, 2013

In the Court of Appeals of Georgia A12A2237. GRAHAM v. THE STATE.

BARNES, Presiding Judge.

Erica Lashae Graham was indicted for four counts of felony murder, two counts

of cruelty to children, aggravated assault, aggravated battery, and making false

statements to the police after her three-month-old baby died while in her care. A jury

convicted her of four counts of voluntary manslaughter instead of felony murder and

of all the remaining charges. The trial court merged the violent offenses into one

voluntary manslaughter conviction and sentenced Graham to serve twenty years in

prison, followed by five years in prison on the charge of making false statements. She

appeals, contending that the evidence was insufficient to sustain the convictions. For

the reasons that follow, we agree that the evidence was insufficient to sustain the

voluntary manslaughter convictions and therefore reverse them. We conclude, however, that the evidence was sufficient to affirm the convictions for aggravated

assault, aggravated battery, cruelty to children, and making false statements.

Accordingly, we affirm in part, reverse in part, vacate the sentence, and remand for

resentencing in accordance with this opinion.1

Viewed in the light most favorable to the verdict, the evidence established that

on January 6, 2009, police and emergency medical technicians found Graham’s three-

month-old baby dead shortly after Graham called 911 at 9:44 p.m. Graham gave

conflicting accounts of the events preceding the baby’s death, first telling police that

she lived alone with the baby and her other daughter at their apartment, that she had

picked up the baby from the baby’s father earlier that evening at a gas station, that she

had no contact information for the father, and that she had put the baby to sleep in her

playpen when she came home. However, Graham actually lived with the baby’s

father, whom she initially misidentified to the police. The father had put the baby to

bed around 5:30 p.m. and left the apartment around 7:00 p.m. that evening, leaving

Graham alone with the baby and the couple’s two-year-old daughter.

1 Graham has not challenged the sufficiency of the evidence regarding her conviction for making a false statement.

2 Graham’s neighbor testified that she heard a knock at her door around 9:30

p.m. the night the baby died, but no one was there when she answered it. She heard

crying in Graham’s apartment and knocked on her door. Graham opened the door and

asked if she could use the neighbor’s cell phone because “her baby had died.” The

neighbor retrieved her cell phone from her own apartment, gave it to Graham, and

followed her upstairs to the baby’s room. Graham called someone and asked if he or

she had seen “Mitchell,” who was later identified as the baby’s father, and the

neighbor “let her know” she needed to end that conversation and call 911.

Graham then called 911 at 9:42 p.m. and gave the phone to the neighbor to

speak to the dispatcher, who advised the neighbor to perform CPR on the baby. The

neighbor testified that she felt no pulse and that the baby was cold, so she did not try

to resuscitate her. Later that evening, the neighbor saw an unsent message in her cell

phone’s outbox to an unfamiliar number. The message read, “If they asked, Justin was

the father.”

A police officer who was dispatched to the scene with the paramedics testified

that the baby was lying face up on the floor in an upstairs bedroom when they arrived

at 9:48 p.m. She had no apparent injuries, and because the death appeared to be from

natural causes, the officer covered her with a blanket and began interviewing Graham

3 in anticipation of completing a standard deceased person report. Graham told the

officer that she had picked up the baby from his father, “Justin Wallace,” at a gas

station at 5:15 p.m. that day, although she later admitted that she lied about the

father’s name. The child had been born prematurely and because her breathing was

loud and labored, Graham told the officer that she knew the baby was alive when she

picked her up from the father and put her to bed at 5:30 p.m., even though she was

asleep. She also heard the baby breathing when she checked on her at 7:00 p.m., but

when she checked again around 9:30 p.m., she heard nothing and the baby was cold.

After a paramedic confirmed that the baby had passed away, the officer

testified, Graham seemed upset for the first time and told the officer she did not know

what the baby and father had been doing during the day. Graham could not provide

the officer with contact information for the baby’s father. A forensic investigator from

the Gwinnett County Medical Examiner’s office responded to the scene and also

interviewed Graham. Graham again lied and said the child’s father was “Justin

Wallace” and that he had kept the child at his apartment in Lawrenceville that day.

She said she did not know his address because he had just moved, and he did not have

a telephone. She told the investigator that she picked up the child from the father at

4 a gas station and took her home, then recounted the rest of the evening as she had to

the police officer.

The medical examiner performed an autopsy the next day. She testified that,

although the only external sign of injury was a small hemorrhage in the baby’s left

eye, an internal examination revealed multiple lateral and posterior rib fractures, some

as old as three weeks and others closer in time to her death. These fractures were not

accidental, but were caused by someone squeezing the baby’s chest. The baby’s femur

had been broken from trauma such as grabbing or pulling the leg, also around the

time she died. Further examination revealed swelling in her brain, retinal

hemorrhages in both eyes, and subdural hematomas and clotted blood under her skull,

which were markers for the type of injury she had suffered. In the examiner’s opinion,

the brain injury was caused by a significant rotational force from either an impact or

a shaking, and the baby died “within minutes to hours” of receiving the trauma that

caused her death.

Graham’s mother called the medical examiner’s investigator the day of the

autopsy and correctly identified the child’s father as Mitchell Siegler, not Justin

Wallace, as Graham said the night the baby died. Graham’s mother told the

investigator that Graham and the father had moved into the apartment together five

5 days before the baby died, and that the father had been present earlier that evening.

She also called the detective assigned to the case “to clear up the whole story,” and

told him that Graham had lied about the father’s identity because the father was on

probation and she did not want him to get in trouble. She testified that the Department

of Family and Children’s Services had become involved with the family when the

baby was born prematurely with marijuana in her system, and that the baby had issues

with her underdeveloped lungs. After two months in the hospital, the baby was

released on December 12, 2008, to live with Graham and Graham’s mother. Graham

was supposed to “get herself together, get off drugs,” and she and the baby’s father

traded off taking care of the baby and her sister.

Both grandmothers testified that they had seen red spots in the whites of the

baby’s eyes at the end of December 2008 and had encouraged Graham and the father

to take the child to a doctor. The father’s mother, who worked at a daycare facility,

testified that she had seen the baby twice the day she died. At lunch she had been alert

and later that afternoon she was asleep in the car. She knew the baby was alive then

because she could hear her loud, raspy breathing.

The father testified that he and Graham had two children, and that he had taken

care of the baby all day. After he dropped off Graham at work, he took the children

6 by a friend’s house, as he often did, and visited for a while. The friend testified that

nothing stood out about the children, except that the baby “used to breathe kind of

funny.” The father took the older child to daycare, where his mother worked, then

brought lunch to the child and to Graham at work, did errands, went home and fed the

baby, picked up the older child, and then picked up Graham from work. They all went

home, and the father put the sleeping baby to bed and turned on the baby monitor to

listen for her while the parents were downstairs. He and Graham then had a “heated

conversation” about who would cook dinner and about him leaving the house that

evening, which he did around 7:00 p.m. He visited two different friends, both of

whom testified about his visit, and around 10:00 p.m. that evening his brother called

the second friend to inform the father of the baby’s death.

The day after the baby died, a DFCS caseworker located the baby’s sister and

took her into custody. At a hearing the next day, Graham tested positive for

marijuana. In contrast to her initial statements to the medical examiner investigator

and the detective, Graham told the caseworker that the father had put the baby to bed

around 5:30 p.m. and then left the apartment on the night she died. In a phone call

from jail after her arrest, Graham said to the father, “The bitch labeled this shit a

homicide the very next day,” and said she “wasn’t expecting anyone to get locked up

7 until the autopsy was done.” After the autopsy, when the detective told her the extent

of the baby’s injuries, Graham showed no shock or surprise, and when the detective

commented on her response, she became a little combative for the first time and said

she did not like the way he was coming at her.

A pediatrician testified as an expert for Graham and disagreed about the timing

of the injury that caused the baby’s death. In his opinion, the baby died from trauma

that occurred 24 to 48 hours earlier during “at least two periods of time when

somebody angrily grabbed the chest of this baby.” The pressure from squeezing the

baby’s chest abruptly increased the baby’s central venous pressure, which caused her

brain to swell slowly and led to the brain damage that caused her death.

After hearing the conflicting testimony, the jury found Graham guilty of four

counts of voluntary manslaughter instead of felony murder, two counts of cruelty to

children, and one count each of aggravated assault, aggravated battery, and making

false statements to the police. Graham moved for a new trial, the trial court denied the

motion, and this appeal followed.

1. Graham contends that the evidence did not support her voluntary

manslaughter conviction. A person commits voluntary manslaughter by causing “the

death of another human being under circumstances which would otherwise be murder

8 and if [she] acts solely as the result of a sudden, violent, and irresistible passion

resulting from serious provocation sufficient to excite such passion in a reasonable

person.” OCGA § 16-5-2 (a). Graham argues that a three-month-old baby could

hardly commit the “serious provocation” necessary to excite such passion, and that

not even slight evidence supported the jury charge on voluntary manslaughter

requested by the State.

In reviewing the evidence necessary to sustain a conviction, appellate courts

apply the standard of review set out in Jackson v. Virginia, 443 U. S. 307 (99 SCt

2781, 61 LE2d 560) (1979) and determine “‘whether, after reviewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’” State v.Clay,

249 Ga. 250 (1) (290 SE2d 84) (1982). When a defendant is indicted for murder and

convicted of voluntary manslaughter, “if the [S]tate’s evidence fails to prove the

crime charged in the indictment or a lesser included offense, the conviction must be

reversed.” Id. at 251. A voluntary manslaughter conviction may be affirmed if the

defendant was indicted for murder, the evidence “absolutely demanded” a verdict of

murder, and “some little evidence” sufficiently authorized a charge and conviction

of voluntary manslaughter, Robinson v. State, 109 Ga. 506 (34 SE 1017) (1900);

9 Varnum v. State, 125 Ga. App. 57, 62063 (186 SE2d 485) (1971). Later cases have

held that if the evidence was sufficient to sustain the indicted offense of murder and

the State introduced at least slight evidence of provocation, the voluntary

manslaughter conviction may be affirmed. Id.; Goins v. State, 164 Ga. App. 37, 38

(1) (296 SE2d 229) (1982). Regardless of which standard is used, here, there was no

evidence of sudden provocation by the baby to support a voluntary manslaughter

conviction. See Holmes v. State, 162 Ga. App. 717, 718 (293 SE2d 16) (1982) (absent

evidence of provocation, voluntary manslaughter conviction reversed). “In this case,

involving a three-[month]-old victim, there was no evidence of any ‘serious

provocation’ sufficient to excite ‘sudden, violent, and irresistible passion in a

reasonable person.’ “ Arnett v. State, 245 Ga. 470, 472 (1) (265 SE2d 771) (1980).

See also Paul v. State, 274 Ga. 601, 605 (3) (b) (555 SE2d 716) (2001) (10-year-old

victim’s “backtalk” while being struck was insufficient provocation to justify

voluntary manslaughter charge).

The State argues, however, that sufficient evidence supports the voluntary

manslaughter conviction for the homicide of the baby as an unintended victim, based

on the concept of “transferred intent,” such as when a defendant shoots at someone

10 as a result of serious provocation but misses and kills a bystander. See McLendon v.

State, 172 Ga. 267 (4) (157 SE 475) (1931); Coker v. State, 209 Ga. App. 142, 143

(433 SE2d 637) (1993); but see Foster v. State, 264 Ga. 369, n. 2 (444 SE2d 296)

(1994) (questioning whether concept of transferred intent from intended victim to

third-party is still valid under current felony murder statute).

The State’s theory at trial was that Graham’s anger at the father was transferred

to the baby and “manifested itself in grabbing and shaking the baby too hard[,]

causing the injuries that resulted in the baby’s death.”

Regardless of whether the concept of transferred intent is still valid, however,

in this case the only evidence arguably involving provocation of any kind was the

father’s testimony that he and Graham had a “heated conversation” before he left on

the evening the baby died. When asked if he and Graham had an argument or fight

before he left that night, the father responded, “It wasn’t an argument, but we did

have – we had a heated conversation. It wasn’t an argument.” The father testified that

when Graham asked him why he had to go out, he asked if she wanted to pack up the

kids and come with him, and she replied, “No, no, no, that’s okay. You just go, just

go,” and so he left.

11 We have held that “‘a heated conversation’ or argument” following a car

accident was sufficient provocation to affirm a voluntary manslaughter conviction

when the defendant claimed he acted in self-defense. Asbury v. State, 175 Ga. App.

335, 336 (1) (333 SE2d 194) (1985). But even if we were to conclude that this

evidence was sufficient to establish that Graham was angry with the father for leaving

her alone with the children after she had worked a full day, there is no evidence to

support the inference that Graham was so angry at the father that she acted out of an

irresistible passion and killed the baby, or that she committed murder that was

mitigated by provocation. The jury was simply left to speculate on this issue.

Because the State presented no evidence of provocation, we must reverse

Graham’s voluntary manslaughter convictions.

2. Graham also contends that the evidence was insufficient to sustain her

convictions of cruelty to children, aggravated assault, and aggravated battery, arguing

that the circumstantial evidence did not rule out the reasonable hypothesis that the

baby’s injuries were caused by the father. The indictment charged her with

committing aggravated assault by using her hands against the baby offensively and

causing trauma to her brain, committing aggravated battery by rendering her brain

12 useless, and committing cruelty to children by maliciously and with criminal

negligence causing her excessive physical pain.

“To warrant a conviction on circumstantial evidence, the proved facts shall not

only be consistent with the hypothesis of guilt, but shall exclude every other

reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. When

it meets this test, circumstantial evidence is as probative as direct evidence. Christmas

v. State, 171 Ga. App. 4, 7 (2) (318 SE2d 682) (1984).

To sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except guilt of the accused, but only reasonable inferences or hypotheses, so as to justify the inference, beyond reasonable doubt, of guilt. Questions as to reasonableness generally are to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilt is unsupportable as a matter of law.

(Citations and punctuation omitted.) Fitz v. State, 201 Ga. App. 83, 85-86 (410 SE2d

186) (1991).

The State presented evidence that Graham lied about living with the father,

about the father’s name, and about where the baby had been that day. Several

13 witnesses testified that the baby’s breathing was loud and the father said he turned the

baby monitor on when he put the baby to bed, but Graham said she did not know

anything was wrong until she checked on the baby about two hours later and she was

cold. She knocked on a neighbor’s door but did not wait for her to answer, then when

the neighbor came over with a phone, Graham did not call 911 right away, but called

someone else first. She did not seem surprised when the detective told her that the

autopsy had uncovered extensive internal injuries to the baby, and said in a phone call

from jail that she had not expected anyone to be locked up until after the autopsy. The

baby had been in her care for more than two hours when she died, and in the medical

examiner’s opinion, the baby would have died “within minutes or hours” after she

suffered the brain injury.

The issue in circumstantial evidence cases is not whether someone else might

have committed the crimes in question. Daugherty v. State, 283 Ga. App. 664, 667

(1) (a) (642 SE2d 345) (2007). The issue is whether the circumstantial evidence

presented was sufficient to authorize the jury to conclude that the only reasonable

hypothesis was that Graham was guilty. Smith v. State, 257 Ga. 381, 382 (359 SE2d

662) (1987).

14 The mere possibility that an individual other than the defendant committed the crime is not such a “reasonable hypothesis” that must be excluded for circumstantial evidence to authorize a guilty verdict. Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.

(Citation and punctuation omitted.) McCombs v. State, 306 Ga. App. 64, 66 (2) (701

SE2d 496) (2010). “Because the factfinder has heard the witnesses and observed them

testify, it is considered more capable of determining the reasonableness of the

hypothesis produced by the evidence or lack thereof than is an appellate court.”

McClain v. State, 301 Ga. App. 844, 847 (1) (689 SE2d 126) (2010).

In this case, based on the evidence presented, the jury was authorized to

conclude that the circumstantial evidence excluded any reasonable hypothesis except

Graham’s guilt of aggravated assault, aggravated battery, and cruelty to children, and

therefore we affirm those convictions.

Accordingly, the judgment is affirmed in part and reversed in part, the sentence

is vacated, and the case is remanded to the trial court for further proceedings

consistent with this opinion.

Judgment affirmed in part, reversed in part, vacated and remanded for resentencing. McFadden J., concurs. McMillian, J., concurs in judgment only.