301 Ga. 94 FINAL COPY
S17A0301. JONES v. THE STATE.
PETERSON, Justice.
Following a jury trial, Willie Clifford Jones was convicted of felony
murder for the death of his four-year-old daughter, Ty’Asia Michelle Phillips.1
He appeals on the sole ground that he was convicted by general verdict on a
count of felony murder that contained two predicates, one of which, he claims,
there was insufficient evidence to support. Because we find that there was
sufficient evidence to convict Jones of felony murder based on one of the two
charged predicates for felony murder, and that this is enough to sustain his
conviction, we affirm.
1 The crime occurred in March 2012. In an indictment returned on September 17, 2013, a Richmond County grand jury charged Jones with malice murder and felony murder (the latter based on predicates of cruelty to children in the first degree and cruelty to children in the second degree). At a September 2013 trial, a jury acquitted Jones of malice murder and found him guilty of felony murder. The trial court sentenced him to life without parole. Jones filed a motion for a new trial on October 1, 2013, which he amended via appellate counsel on June 2, 2015. After a hearing, the trial court denied the motion on July 17, 2015. Jones filed a timely notice of appeal, and the case was docketed to this Court for the term beginning in December 2016 and submitted for a decision on the briefs. Viewed in the light most favorable to the verdict, the trial evidence
showed the following:
When Ty’Asia was four years old, Ty’Asia’s mother, Chelsea Phillips,
made arrangements for Ty’Asia to stay with Jones beginning in late February
2012. Phillips and her mother testified that the child did not have any injuries
of concern when they left her with Jones. Emerson Cohen testified that he
visited Jones’s trailer on multiple occasions during Ty’Asia’s visit, and,
although the child reported that her father had spanked her, Cohen did not
observe the girl to have any bruising and saw her running around playing with
other children as late as the evening of March 10. Clerks at a nearby
convenience store also testified that they saw the girl on the afternoon of March
9 and the morning of March 11 and did not observe her to have any disabilities
or injuries.
Jones called Cohen the evening of Sunday, March 11, crying and saying
that he could not get Ty’Asia to wake up. Cohen urged Jones to call 911. A
cousin of Jones, Nolan Hogues, testified that he came by to visit that night and
found Jones sitting in the living room, crying, with his daughter in his lap.
2 Jones reported that his daughter would not wake up. Hogues testified that the
child was breathing but unresponsive and limp when he picked her up. Hogues
testified that he directed Jones to call an ambulance, and Jones complied.
Paramedics arrived and found Ty’Asia unresponsive. While in the
paramedics’ care, Ty’Asia’s respiratory rate started to decline, and the
paramedics had to breathe for her manually through a bag mask valve. She
also drew up into a fetal position before arching her back and pointing her toes
down, which a paramedic testified was a sign of head trauma. Law
enforcement who responded to the hospital where Ty’Asia was taken testified
that the girl had marks and bruises all over her body, including her head, and
including what one investigator described as an apparent older burn injury in
a pattern like a railroad track on her back.
At Jones’s trailer, law enforcement found a portable heater with a front
panel that had a pattern consistent with the marks found on Ty’Asia’s back.
They found window blinds that were missing the rod used to open and close the
blinds, and found components of the rod at various locations around the house.
They also found a broken belt in a washing machine and pieces of cord.
3 Investigator Mark Dobbins interviewed Jones at the hospital. Initially,
Jones denied ever spanking or whipping Ty’Asia. Jones told Dobbins that
Ty’Asia had simply collapsed and stopped responding after a day of playing
outside, which Jones later admitted to Dobbins was false. Jones ultimately told
Dobbins that he hit Ty’Asia with a “blind twister” and his shoe and that she
might have been hit in the head accidentally by the blind twister or the shoe
because she moved around. Jones also said she might have hit her head on a
shelf while he was attempting to spank her. Jones said Ty’Asia fell on the
heater when they were in an altercation.
Ty’Asia died on March 18, 2012. The GBI’s medical examiner testified
that Ty’Asia’s death was caused by traumatic head injuries caused by another
person or persons, with other injuries possibly contributing to a minor degree.
He testified that the head injuries Ty’Asia suffered would not have resulted
from roughhousing with other children. He testified that the sort of head injury
she suffered would have immediately rendered her unconscious or nearly so and
that the head injury would have been inflicted just before she was hospitalized.
Jones testified at trial that on the weekend in question, he played video
4 games and smoked marijuana while Ty’Asia played with other children
outside. Jones denied hitting Ty’Asia and said that he falsely told Dobbins that
he had because he was tired and overwhelmed and wanted Dobbins to go away.
On cross-examination, Jones said that he had “whooped” Ty’Asia and “kind
of” had lied when he testified that he did not whip her.
The jury acquitted Jones of malice murder and returned a guilty verdict
on a single count of felony murder. The indictment charged Jones with felony
murder based on two predicates, that he committed cruelty to children in the
first degree and that he committed cruelty to children in the second degree.
Specifically, the sole count of felony murder charged that Jones caused
Ty’Asia’s death “by maliciously and with criminal negligence” causing the
child “cruel and excessive mental and physical pain” by beating her and by
throwing her into a piece of furniture, onto the floor and into a space heater.
The jury was instructed on each of the underlying offenses. The verdict form
did not specify which predicate felony was the basis for the finding of guilt on
the felony murder count.
1. Jones argues on appeal that he is entitled to a new trial because he was
5 convicted by general verdict on a count of felony murder predicated on cruelty
to children in the first degree and cruelty to children in the second degree, and
there was insufficient evidence to support the predicate of cruelty to children
in the second degree. Without deciding whether there was sufficient evidence
to support the second degree child cruelty predicate, we conclude that he would
not be entitled to a new trial even if he were right that there was sufficient
evidence to support a conviction based on only one of the two predicate
offenses.
Jones does not dispute that there was sufficient evidence to support a
conclusion that he committed the crime of first degree cruelty to children,
which, as that predicate was charged in the indictment, required a showing of
malice. See OCGA § 16-5-70 (b). Instead, he contends that the evidence was
insufficient to support a conclusion that he committed the crime of second
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301 Ga. 94 FINAL COPY
S17A0301. JONES v. THE STATE.
PETERSON, Justice.
Following a jury trial, Willie Clifford Jones was convicted of felony
murder for the death of his four-year-old daughter, Ty’Asia Michelle Phillips.1
He appeals on the sole ground that he was convicted by general verdict on a
count of felony murder that contained two predicates, one of which, he claims,
there was insufficient evidence to support. Because we find that there was
sufficient evidence to convict Jones of felony murder based on one of the two
charged predicates for felony murder, and that this is enough to sustain his
conviction, we affirm.
1 The crime occurred in March 2012. In an indictment returned on September 17, 2013, a Richmond County grand jury charged Jones with malice murder and felony murder (the latter based on predicates of cruelty to children in the first degree and cruelty to children in the second degree). At a September 2013 trial, a jury acquitted Jones of malice murder and found him guilty of felony murder. The trial court sentenced him to life without parole. Jones filed a motion for a new trial on October 1, 2013, which he amended via appellate counsel on June 2, 2015. After a hearing, the trial court denied the motion on July 17, 2015. Jones filed a timely notice of appeal, and the case was docketed to this Court for the term beginning in December 2016 and submitted for a decision on the briefs. Viewed in the light most favorable to the verdict, the trial evidence
showed the following:
When Ty’Asia was four years old, Ty’Asia’s mother, Chelsea Phillips,
made arrangements for Ty’Asia to stay with Jones beginning in late February
2012. Phillips and her mother testified that the child did not have any injuries
of concern when they left her with Jones. Emerson Cohen testified that he
visited Jones’s trailer on multiple occasions during Ty’Asia’s visit, and,
although the child reported that her father had spanked her, Cohen did not
observe the girl to have any bruising and saw her running around playing with
other children as late as the evening of March 10. Clerks at a nearby
convenience store also testified that they saw the girl on the afternoon of March
9 and the morning of March 11 and did not observe her to have any disabilities
or injuries.
Jones called Cohen the evening of Sunday, March 11, crying and saying
that he could not get Ty’Asia to wake up. Cohen urged Jones to call 911. A
cousin of Jones, Nolan Hogues, testified that he came by to visit that night and
found Jones sitting in the living room, crying, with his daughter in his lap.
2 Jones reported that his daughter would not wake up. Hogues testified that the
child was breathing but unresponsive and limp when he picked her up. Hogues
testified that he directed Jones to call an ambulance, and Jones complied.
Paramedics arrived and found Ty’Asia unresponsive. While in the
paramedics’ care, Ty’Asia’s respiratory rate started to decline, and the
paramedics had to breathe for her manually through a bag mask valve. She
also drew up into a fetal position before arching her back and pointing her toes
down, which a paramedic testified was a sign of head trauma. Law
enforcement who responded to the hospital where Ty’Asia was taken testified
that the girl had marks and bruises all over her body, including her head, and
including what one investigator described as an apparent older burn injury in
a pattern like a railroad track on her back.
At Jones’s trailer, law enforcement found a portable heater with a front
panel that had a pattern consistent with the marks found on Ty’Asia’s back.
They found window blinds that were missing the rod used to open and close the
blinds, and found components of the rod at various locations around the house.
They also found a broken belt in a washing machine and pieces of cord.
3 Investigator Mark Dobbins interviewed Jones at the hospital. Initially,
Jones denied ever spanking or whipping Ty’Asia. Jones told Dobbins that
Ty’Asia had simply collapsed and stopped responding after a day of playing
outside, which Jones later admitted to Dobbins was false. Jones ultimately told
Dobbins that he hit Ty’Asia with a “blind twister” and his shoe and that she
might have been hit in the head accidentally by the blind twister or the shoe
because she moved around. Jones also said she might have hit her head on a
shelf while he was attempting to spank her. Jones said Ty’Asia fell on the
heater when they were in an altercation.
Ty’Asia died on March 18, 2012. The GBI’s medical examiner testified
that Ty’Asia’s death was caused by traumatic head injuries caused by another
person or persons, with other injuries possibly contributing to a minor degree.
He testified that the head injuries Ty’Asia suffered would not have resulted
from roughhousing with other children. He testified that the sort of head injury
she suffered would have immediately rendered her unconscious or nearly so and
that the head injury would have been inflicted just before she was hospitalized.
Jones testified at trial that on the weekend in question, he played video
4 games and smoked marijuana while Ty’Asia played with other children
outside. Jones denied hitting Ty’Asia and said that he falsely told Dobbins that
he had because he was tired and overwhelmed and wanted Dobbins to go away.
On cross-examination, Jones said that he had “whooped” Ty’Asia and “kind
of” had lied when he testified that he did not whip her.
The jury acquitted Jones of malice murder and returned a guilty verdict
on a single count of felony murder. The indictment charged Jones with felony
murder based on two predicates, that he committed cruelty to children in the
first degree and that he committed cruelty to children in the second degree.
Specifically, the sole count of felony murder charged that Jones caused
Ty’Asia’s death “by maliciously and with criminal negligence” causing the
child “cruel and excessive mental and physical pain” by beating her and by
throwing her into a piece of furniture, onto the floor and into a space heater.
The jury was instructed on each of the underlying offenses. The verdict form
did not specify which predicate felony was the basis for the finding of guilt on
the felony murder count.
1. Jones argues on appeal that he is entitled to a new trial because he was
5 convicted by general verdict on a count of felony murder predicated on cruelty
to children in the first degree and cruelty to children in the second degree, and
there was insufficient evidence to support the predicate of cruelty to children
in the second degree. Without deciding whether there was sufficient evidence
to support the second degree child cruelty predicate, we conclude that he would
not be entitled to a new trial even if he were right that there was sufficient
evidence to support a conviction based on only one of the two predicate
offenses.
Jones does not dispute that there was sufficient evidence to support a
conclusion that he committed the crime of first degree cruelty to children,
which, as that predicate was charged in the indictment, required a showing of
malice. See OCGA § 16-5-70 (b). Instead, he contends that the evidence was
insufficient to support a conclusion that he committed the crime of second
degree cruelty to children, which requires a mens rea of criminal negligence.
See OCGA § 16-5-70 (c). He relies on two decisions by the Court of Appeals
of Georgia in which the court found a reckless conduct charge unwarranted
because the evidence of child abuse established that the defendants’ actions
6 were intentional, not criminally negligent. See Glover v. State, 292 Ga. App.
22, 28-30 (5) (a) (663 SE2d 772) (2008); Allen v. State, 247 Ga. App. 10, 14-
15 (3) (543 SE2d 45) (2000). Citing Thompson v. State, 271 Ga. 105 (519
SE2d 434) (1999), Jones argues that because the jury might have based its
guilty verdict on the unproven predicate of second degree cruelty to children,
the verdict must be set aside.
In Thompson, we reversed a felony murder conviction after finding that
the defendant’s conviction for one of the three predicate offenses on which the
felony murder charge was based must be set aside due to an improper jury
instruction. Id. at 106-109 (1), (2). Citing Stromberg v. California, 283 U.S.
359 (51 SCt 532, 75 LE 1117) (1931), and several of our own subsequent
decisions, we said reversal of the felony murder conviction was required
“because the general verdict of guilty did not indicate which of the alternate
theories the felony murder conviction was based upon[.]” Id. at 108-109 (2).
In order to understand Thompson, we must understand the U.S. Supreme Court
decision on which it was based and how that Court has treated that decision
subsequently.
7 The Stromberg Court held that if a jury is instructed that it may convict
a defendant on any one of several theories, one of which is unconstitutional, a
general verdict of guilty that does not indicate it was based upon one of the
constitutional theories must be set aside. 283 U.S. at 367-370. The U.S.
Supreme Court extended that rule in Yates v. United States, 354 U.S. 298 (77
SCt 1064, 1 LE2d 1356) (1957), overruled in part on other grounds by Burks
v. United States, 437 U.S. 1 (98 SCt 2141, 57 LE2d 1) (1978), to require a
conviction be set aside when one of multiple possible bases for a conviction is
legally inadequate even in some non-constitutional sense, such as when one of
the charged objects of a conspiracy is time-barred. Id. at 312. And we have
relied on Stromberg and its progeny to reverse convictions where one of
multiple possible bases for the jury’s guilty verdict was premised on an
erroneous jury instruction, see Thompson, 271 Ga. at 108 (2); Dunagan v.
State, 269 Ga. 590, 594-595 (3) (502 SE2d 726) (1998), or where one of
multiple possible bases for the guilty verdict was not properly charged in the
indictment, see Kevinezz v. State, 265 Ga. 78, 83 (2) (d) (454 SE2d 441)
(1995); Crawford v. State, 254 Ga. 435, 438-439 (1) (330 SE2d 567) (1985).
8 But 60 years after Stromberg, the Supreme Court limited Stromberg and
Yates, making clear that a guilty verdict need not be set aside merely because
one of multiple possible bases of conviction is unsupported by sufficient
evidence. See Griffin v. United States, 502 U.S. 46, 56 (112 SCt 466, 116
LE2d 371) (1991). The Court explained in Griffin that at common law, “a
general jury verdict was valid so long as it was legally supportable on one of the
submitted grounds — even though that gave no assurance that a valid ground,
rather than an invalid one, was actually the basis for the jury’s action.” Id. at
49. The Court explained that Stromberg “do[es] not necessarily stand for
anything more than the principle that, where a provision of the Constitution
forbids conviction on a particular ground, the constitutional guarantee is
violated by a general verdict that may have rested on that ground.” Id. at 53.
The Court questioned Yates’s “unexplained extension” of that rule to a possible
basis for a general verdict that did not violate any provision of the Constitution
but was simply legally inadequate (in that case, due to a statutory time bar). Id.
at 55-56. But the Court did not overrule Yates, saying the Court’s continued
adherence to Yates was not at issue there. Id. at 56. Instead, the Court drew
9 a distinction between circumstances in which one of multiple possible bases for
a guilty verdict was contrary to law and circumstances in which one of the
bases for a guilty verdict was a factually inadequate theory. See id. at 59. In
the former scenario, the Court said, there is no reason to think that jurors’ own
intelligence and expertise would have saved them from possibly relying on that
legally inadequate theory; in the latter scenario, courts should not presume that
a general verdict rests on a ground that the evidence does not support, as jurors
are well equipped to analyze evidence. Id. at 59-60; see also Sochor v. Florida,
504 U.S. 527, 538 (112 SCt 2114, 119 LE2d 326) (1992). As the Court had
noted more than 20 years earlier, “[t]he general rule is that when a jury returns
a guilty verdict on an indictment charging several acts in the conjunctive . . .
the verdict stands if the evidence is sufficient with respect to any one of the acts
charged.” Turner v. United States, 396 U.S. 398, 420 (90 SCt 642, 24 LE2d
610) (1970).
Our decision in Thompson does not require a different result. In
Thompson, the appellant was charged with a single count of felony murder
based on three underlying felonies, including burglary. Id. at 108 (2). The jury
10 returned a general verdict on the felony murder count without delineating
which of the underlying felonies served as the predicate for the felony murder
conviction. Id. On appeal, we held that the trial court erred in charging the
jury on the offense of burglary and that the evidence was insufficient to support
a verdict of guilt on that charge, and we reversed that conviction. Id. at 106-
108 (1), (2). Citing Stromberg, and noting that the general verdict of guilty on
the felony murder charge did not indicate on which of the alternative theories
the verdict was based, we set aside the felony murder conviction, as well. Id.
at 108 (2). Contrary to Jones’s characterization of our decision in Thompson,
it is clear that we reversed the felony murder conviction not because there was
insufficient evidence to support one of its possible predicates but because one
of those predicates was premised on an erroneous jury instruction. Although
we analyzed the sufficiency of the evidence on the burglary charge, we did so
to determine (1) whether the jury instruction error was harmless and (2)
whether the defendant could be retried on that charge.2 We have never cited
2 Notably, we affirmed the defendant’s conviction for possession of a firearm by a convicted felon on the basis that it was highly probable that the jury instruction error did not contribute to the verdict on that charge. Thompson, 271 Ga. at 109 (2). This invocation of the standard for evaluating whether a non-constitutional error was harmless underscores the nature
11 Thompson to reverse a guilty verdict for the sole reason that one of multiple
possible bases of conviction was unsupported by sufficient evidence. Jones
cannot obtain reversal under the Stromberg/Griffin line of cases on the basis
that there was insufficient evidence for the jury to find him guilty of felony
murder based on his commission of the crime of cruelty to children in the
second degree, as long as there was sufficient evidence for the jury to find him
guilty of felony murder based on his commission of the crime of first degree
child cruelty.3
2. Jones effectively has conceded that there was sufficient evidence to
support a conclusion that he committed the crime of first degree cruelty to
children. Having independently reviewed the record, we find that Jones’s
concession is well founded. “Any person commits the offense of cruelty to
of the task we performed in Thompson. 3 We note that we have some case law predating Stromberg that may provide an independent basis for invalidating a general verdict of guilty when one of multiple possible bases for the verdict is not supported by sufficient evidence. See Driver v. State, 112 Ga. 229 (37 SE 400) (1900); Simmons v. State, 162 Ga. 316 (134 SE 54) (1926). The legal source of this case law is unclear, but in any event it affords no relief to Jones. If the Driver line of cases is rooted in due process (the only issue that Jones actually raises by citing Thompson), the Supreme Court’s decision in Griffin superseded Driver and offers Jones no help. If the Driver line of cases has some other legal basis, then Jones has failed to raise that issue at all, and the issue is not properly before us for decision. Given its inapplicability here, we offer no opinion as to Driver’s basis or its continuing validity.
12 children in the first degree when such person maliciously causes a child under
the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70
(b). Malice means “an actual intent to cause a particular harm” — in this
context, cruel or excessive physical or mental pain — or “the wanton and
willful doing of an act with awareness of a plain and strong likelihood” that
this particular harm may result. See Sears v. State, 290 Ga. 1, 3 (3) (717 SE2d
453) (2011) (approving instruction) (punctuation omitted); see also Jones v.
State, 300 Ga. 814, 816-819 (2) (797 SE2d 461) (2017) (jury’s acquittal of
defendant on malice murder does not preclude finding that defendant had the
requisite mens rea for first degree child cruelty). The evidence, as outlined
above, was legally sufficient to authorize a rational trier of fact to find beyond
a reasonable doubt that Jones beat Ty’Asia while either intending to cause her
cruel or excessive physical or mental pain or acting in a wanton or willful
fashion with awareness of a plain and strong likelihood that such harm would
result and that such actions caused Ty’Asia’s death. The evidence thus was
sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 SCt
2781, 61 LE2d 560) (1979), to support a felony murder conviction based on the
13 predicate of first degree cruelty to children.
Judgment affirmed. All the Justices concur.
Decided May 1, 2017.
Murder. Richmond Superior Court. Before Judge Craig.
Tyler R. Conklin, James C. Bonner, Jr., for appellant.
R. Ashley Wright, District Attorney, Joshua B. Smith, Assistant District
Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,
Elizabeth M. Haase, Assistant Attorney General, for appellee.