THIRD DIVISION MILLER, P. J., RAY and BRANCH, 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 27, 2013
In the Court of Appeals of Georgia A12A2327. IRVING v. THE STATE.
RAY, Judge.
A Cobb County jury found Jovanda Nicole Irving guilty beyond a reasonable
doubt of one count of aggravated assault,1 three counts of cruelty to children in the
first degree,2 and two counts of aggravated battery. 3 She appeals from her convictions
and the denial of her motion for new trial, contending that the trial court erred (1) in
denying her motion for directed verdict; (2) in denying her motion to sever; (3) in
failing to give a jury charge on accident; (4) in actively participating in the trial and
conducting an ex parte hearing; (5) in admitting the child victim’s out-of-court
1 OCGA § 16-5-21. 2 OCGA § 16-5-70 (b). 3 OCGA § 16-5-24. statement; (6) in denying her request to reopen the evidence; (7) in failing to excuse
a juror for cause, and (8) in imposing an excessive sentence. Finding no error, we
affirm.
1. Irving contends that she was entitled to a directed verdict of acquittal
because the State failed to prove that the crimes occurred in Cobb County. We
disagree.
A motion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.4
Viewed in this light, the evidence shows that Irving and her three-year-old
daughter were living with Irving’s boyfriend, Rudolph Nunnally, in apartment B-14
4 (Citation omitted.) Walker v. State, 310 Ga. App. 223, 223 (1) (713 SE2d 413) (2011).
2 of the Skyway Apartments in Cobb County. On April 29, 2009, Barry Goodwin was
standing outside of apartment B-13 with Maurice Promise when they heard the sound
of a child screaming coming from inside Irving’s apartment. Joseph Dunbar and
Sherrod Gillis were barbecuing in the parking lot of the apartment complex when
Promise got their attention and waived them over to listen. As they stood outside of
Irving’s apartment, the men heard the sound of a child being beaten. Goodwin
testified that it sounded like “fists on flesh,” and that what they heard “was rough .
. . a little girl . . . screaming like, bad screaming, . . . can’t really describe it, but it was
bad.” Goodwin further testified that the screaming was at first a “high pitch
screaming, like a . . . horror movie scream,” but after a minute the screaming “kept
going down . . . , like if somebody . . . was trying to scream, but they really couldn’t
get it out.” Dunbar testified that he heard “[a] lot of popping, just consistently pop,
pop, pop, pop, pop,” a “skin on skin” sound like someone was “popping the back of
your hand consistently like twenty times.” Dunbar further testified that he heard a
child “sighing . . . , like an exhausted breathing” and another male and female saying
“hold her, hold her” and “keep her still, keep her still.” The beating went on for
several minutes until Gillis called the apartment manager, Jimmy Gravley, who then
called the police.
3 A Cobb County police officer, Brandon Williams, responded to the call and
went to apartment B-14 to investigate. Irving allowed Officer Williams to come
inside the apartment, and he observed the child sleeping face-down on the couch.
Nunnally, Irving’s boyfriend, was also inside the apartment at the time. Upon his
examination of the child, Officer Williams observed marks across her upper back and
marks on the back of her legs. When Officer Williams asked Irving how the child got
these marks, Irving stated that the marks on the child’s back were from “whippings
from before,” and that the marks on the child’s legs were caused by the child
“bump[ing] into things.” Officer Williams asked Irving and Nunnally to remain in the
apartment while he went outside to his patrol car to report his findings to the police
department’s Crimes Against Children Unit. After detectives were sent to the scene,
Irving and Nunnally were placed under arrest, and the child was taken into protective
custody.
The detectives observed fresh injuries on the child, which included areas
without skin on her nose, lips, and buttocks. The detectives also observed “loop
marks” on her body, bruising and open cuts on her head, and swelling on her
stomach.
4 Thereafter, the child was taken to Scottish Rite Hospital. Dr. Stephen Messner
examined the child and determined that she had various internal injuries and visible
external injuries which were consistent with blunt force trauma. When Dr. Messner
asked the child about her injuries, the child stated that her mother had hurt her with
a belt and a stick. Dr. Messner determined that the “loop-shaped marks” on the child’s
body were consistent with being struck by a “looped-over object,” such as “a cord or
a belt or a rope,” and that the linear bruising on the child’s body was consistent with
being struck with a linear object, such as a broom. As for the areas on the child’s
buttocks that were missing skin, Dr. Messner determined that these injuries were
caused by repetitive trauma, and that the injuries were consistent with being struck
repeatedly by a belt, a cord, or a paddle.
After executing a search warrant on Irving’s apartment, the detectives found
a belt hanging on a doorknob, several electrical cords, a paddle, and a broom with a
broken handle. The detectives also found the child’s bloody clothing, including
underwear covered in blood, pus, and/or tissue.
In claiming that the trial court erred in denying her motion for a directed
verdict, Irving contends that the evidence presented was insufficient because the State
failed to prove that the injuries that the child sustained happened in Cobb County.
5 Irving argues that the evidence only shows that the child was crying in Irving’s
apartment.
Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. As an appellate court, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.5
In this case, the State presented the testimony of numerous witnesses and other
evidence that sufficiently established that the crimes occurred in Cobb County. At
trial, the testimony of Dunbar, Promise, Goodwin, and Gillis indicates that the men
heard much more than just the sound of the child crying coming from Irving’s Cobb
County apartment. They heard the sounds of a child being severely beaten, along with
male and female voices saying “hold her . . . keep her still” and “be still.” Officer
Williams testified that, when he arrived at the scene, he found Irving and Nunnally
in the apartment with the child and that the child had visible marks on her body. Dr.
5 (Citation and footnote omitted.) Pippins v. State, 263 Ga. App. 453, 455 (2) (588 SE2d 278) (2003).
6 Messner testified that he observed recent injuries to the child’s body, including
bruises, swelling, and damage to her internal organs from significant blunt force
trauma. Further, the injuries that the child sustained were consistent with being struck
by the items found in Irving’s apartment.
Accordingly, we conclude that the State presented sufficient evidence to
establish that the crimes occurred in Cobb County and for the jury to find beyond a
reasonable doubt that Irving committed the crimes for which she was convicted. The
trial court did not err in denying Irving’s motion for a directed verdict of acquittal.6
2. Irving contends that the trial court erred in denying her motion to sever her
trial from that of Nunnally, her co-defendant. Irving appears to argue that Nunnally’s
conduct7 and decision not to testify at trial prevented her from eliciting testimony
from Nunnally that would have exculpated her. However, Irving has failed to cite to
any authority to support her argument that she was entitled to severance based on
Nunnally’s conduct, and she has failed to provide citations to the record to show that
6 Id. at 455-456 (2). 7 In her brief, Irving specifically refers to an outburst that Nunnally made to the trial court, prior to the start of trial, in which he railed against the case against him and the judicial system in general. However, this outburst was made after Irving had renewed her motion to sever.
7 Nunnally’s testimony would have tended to exculpate her. Accordingly, Irving’s
argument in this enumeration is deemed abandoned pursuant to Court of Appeals
Rule 25 (c) (2).
3. Irving contends that the trial court erred in denying her request to charge the
jury on accident. We disagree.
“A charge on the affirmative defense of accident is required only if there is
evidence to support a finding that the defendant committed the acts which were the
basis of the charge, but without any criminal scheme or undertaking, intention, or
criminal negligence.”8 Thus, the evidence must show that Irving admits to having
committed the acts that would constitute the crimes for which she was charged, but
claims that her acts were done unintentionally.9
Here, Irving’s defense was that she did not cause the child’s injuries. She
argued that “this child was in the care and custody of Mr. Nunnally, that he snaps and
8 (Citation and punctuation omitted.) Griffin v. State, 262 Ga. App. 87, 88 (3) (585 SE2d 145) (2003). 9 Haynes v. State, 281 Ga. App. 81, 82 (2) (b) (635 SE2d 370) (2006). See also Maxey v. State, 272 Ga. App. 800, 802 (1) (613 SE2d 236) (2005) (“In order to assert a statutory affirmative defense, . . . the defendant must admit all of the elements of the crime except intent . . .”).
8 he beat and injured this child.” Irving, therefore, did not present an affirmative
defense of accident.
Irving refers to the testimony of Officer Williams when he stated that, in
response to his inquiry regarding the child’s marks on her legs, Irving and Nunnally
both stated that the child “bumps into things.” However, this testimony does not
warrant a charge on accident, because Irving did not admit in this statement that she
committed any act against the child. Moreover, the evidence shows that the child’s
injuries were not consistent with her having bumped into things, but were consistent
with being struck with a looped object, such as the belt or cord. As the evidence does
not support a charge on accident, the trial court did not err in denying the request.
4. Irving contends that the trial court erred by actively participating in the trial
and conducting an ex parte hearing concerning the mental health of Irving’s co-
defendant. We discern no error.
Embodied within the constitutional rights to the courts is a criminal defendant’s right to be present and see and hear, all the proceedings which are had against him on the trial before the [c]ourt. This is a fundamental right and a foundational aspect of due process of law.10
10 (Citations and punctuation omitted.) Ward v. State, 288 Ga. 641, 645 (4) (706 SE2d 430) (2011).
9 In response to a motion filed by Irving’s co-defendant immediately preceeding
the start of the trial, the trial court requested that a mental health expert appear to give
testimony regarding Nunnally’s mental condition and his competency to stand trial.
With Irving and her counsel present in the courtroom, Nunnally’s counsel asked that
the hearing be conducted outside the presence of the prosecution, the public, and all
non-essential court personnel. The trial court granted the request, and it directed all
persons to exit the courtroom. Irving did not object, and she was escorted to a holding
cell until the conclusion of the hearing.
Although a defendant has a fundamental right to be present at all proceedings
which are conducted at her trial, “the right to be present belongs to the defendant, and
[she] is free to relinquish it if [she] so chooses.” 11 The right is waived “if the
defendant personally waives it in court; if counsel waives it at the defendant’s express
direction; if counsel waives it in open court while the defendant is present; or if
counsel waives it and the defendant subsequently acquiesces in the waiver.”12 Here,
the record shows that Irving and her counsel were present in the courtroom when the
11 (Footnote omitted.) Hampton v. State, 282 Ga. 490, 492 (2) (a) (651 SE2d 698) (2007). 12 (Footnote omitted.) Id.
10 trial court granted Nunnally’s request for an ex parte hearing regarding Nunnally’s
competency to stand trial, and neither Irving nor her counsel objected to her leaving
the courtroom. Thus, at the very least, Irving acquiesced in her counsel’s waiver of
her right to be present at this hearing.13 Accordingly, the trial court’s ex parte hearing
does not warrant reversal of Irving’s convictions.14
We also find no merit in Irving’s argument that the trial erred in calling the
mental health representative to the stand and questioning this witness concerning the
status of Nunnally’s mental health. The trial court has a constitutional duty to inquire
into a defendant’s competency when the issue “appears to be in question at the time
of trial.”15 Furthermore, it is not improper for the trial court to question a witness “for
the purpose of developing fully the truth of the case, and the extent of such an
13 See Hampton, supra (holding that trial court’s interviews of two jurors without defendant present did not violate defendant’s right to be present at all critical proceedings because, in part, defendant acquiesced in his counsel’s waiver of the right). 14 See Adams v. State, 316 Ga. App. 1, 5-6 (2) (728 SE2d 260) (2012). 15 (Citation and punctuation omitted.) Lamar v. State, 278 Ga. 150, 151 (1) (a) (598 SE2d 488) (2004).
11 examination is a matter for the trial court’s discretion.”16 However, the trial court, in
questioning the witness, cannot intimate any opinion or become argumentative.17 As
the record indicates that the trial court’s examination into Nunnally’s competency was
in accordance with these principles, we discern no error.
Nor did the trial court err in suggesting to Nunnally’s counsel that Nunnally be
examined by a doctor, who happened to be present in the courthouse at the time. The
trial court’s suggestion was made in response to Nunnally’s motion for such an
evaluation, and Irving has failed to show how this was improper.
5. Irving contends that the trial court erred in admitting the child’s out-of-court
statement that she made to Dr. Messner during her medical examination, wherein she
stated that “Mommy hurt me . . . with a belt” and “with a stick.” We discern no error.
OCGA § 24-3-1618 provides that
[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child
16 (Citation omitted.) Mullins v. State, 269 Ga. 157, 158 (3) (496 SE2d 252) (1998). 17 Id. 18 This Code section, which was in effect at the time of Irving’s trial, has been repealed by Laws 2011, Act 52, § 2, effective January 1, 2013.
12 by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.
In Gregg v. State,19 we outlined a number of factors that the trial court may
consider when determining the reliability of a child’s out-of-court statement. These
factors include, but are not limited to, (1) the atmosphere and circumstances under
which the statement was made; (2) the child’s condition (physical or emotional) at the
time of the statement; and (3) the presence or absence of drugs or alcohol. “These
factors are to be applied neither in mechanical nor mathematical fashion, but in that
manner best calculated to facilitate determination of the existence or absence of the
requisite degree of trustworthiness.”20
The trial court conducted a hearing, outside the presence of the jury, regarding
the admissibility of the child’s statement. The record shows that, at the time the child
made the statement, she was at the Scottish Rite Hospital being examined and treated
for significant injuries. Dr. Messner testified that morphine and Tylenol had been
19 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991). 20 Id.
13 ordered for the child, but that he did not know if she had received these medications
at the time he spoke to the child. He also testified that he did not recall if anyone else
was present at the time the child made the statement, but that his report did not note
that anyone else was present. The trial court found that the statement had sufficient
indicia of reliability and allowed the statement to be introduced into evidence.
“The trial court has broad discretion in the admission of evidence, . . . and as
long as sufficient evidence of indicia of reliability appears in the record either before
or after the introduction of the child’s out-of-court statements, the fair trial rights of
the defendant are adequately protected.” 21 Thus, if the record as a whole contains
sufficient evidence that the child’s out-of-court of statement has “indicia of
reliability,” we will not reverse the correct ruling of the trial court.22
In her statement, the child specified that she was struck with a belt and a stick,
which is consistent with the injuries she received. Furthermore, her statement that her
mother hurt her is supported by the testimony of the witnesses who heard the incident.
For these reasons, we find that the statement has sufficient indicia of reliability and
that the trial court did not abuse its discretion in admitting the statement.
21 (Emphasis supplied.) Id. at 240 (3) (a). 22 Id.
14 6. Irving contends that the trial court erred in denying her request to reopen the
case to allow her to introduce statements that Nunnally had previously made to the
trial court regarding their respective involvement in the incident. We disagree.
Whether to reopen the case after the close of the evidence rests within the
sound discretion of the trial court, and a trial court’s ruling in this regard will only be
reversed if, in the totality of the circumstances, the record on appeal demonstrates that
the trial court abused its discretion. 23
Prior to the State resting its case, the trial court inquired into whether Nunnally
was going to testify in his own defense. Outside the presence of the jury, the trial
court advised Nunnally about his right to remain silent and his choices regarding
testifying. Nunnally indicated that he wanted to make a statement, but that he did not
want to testify. The trial court advised Nunnally that he could not make a statement,
at this point, without being placed under oath and subjecting himself to cross-
examination. Nunnally then reaffirmed that he did not want to testify. Nunnally then
stated, “I just want to say that [Irving] didn’t do this.” Whereupon the following
colloquy took place:
23 Smith v. State, 306 Ga. App. 693, 696-697 (2) (703 SE2d 329) (2010).
15 MR. JONES [Irving’s attorney]: Well, normally, and I think ethically, knowing in advance that [Nunnally] invoked his right, normally I would not call him [as a witness] knowing that. But I’m put in a very uncomfortable position here . . . I’ve heard him twice say that he wants to tell that he did it; that [Irving] is not responsible.
DEFENDANT NUNNALLY: I didn’t say that.
MR. JONES: Well –
DEFENDANT NUNNALLY: I didn’t say that I’m going to tell them that I did it. I didn’t say that. . .
THE COURT: He’s indicated just now that . . . he would invoke his right against self- incrimination and refuse to answer any questions that may tend to incriminate him regarding the offense for which he and Ms. Irving are on trial for. . .
MR. JONES: Well, he’s invoking his right on one aspect. It’s my understanding of the law that any other testimony would be stricken or disregarded . . . , he can’t just exercise his Fifth Amendment privilege on a portion.
THE COURT: No . . . It’s either an all or nothing.
MR. JONES: Right, and so it’s my understanding now that he’s invoked that formally; and therefore, out of the presence of the jury . . . that puts him on notice that I would attempt to call him. But now that I understand that he’s invoked it, I will not be doing that in the jury’s presence.
Thereafter, Irving did not attempt to introduce Nunnally’s statements when she
presented her case to the jury. On the morning after the close of evidence, Irving
moved to reopen the case to introduce Nunnally’s statements as admissions in judicio.
The trial court denied the request, finding that the statements were not made under
16 oath and that reading the statements from the record to the jury would deprive the
State of its right to cross-examination.
Considering the overwhelming evidence of Irving’s guilt, together with
Nunnally’s recanting of his unsworn statements, it appears highly improbable that the
statements would have led to a different verdict. Under these circumstances, we
cannot conclude that the trial court abused its discretion in denying the motion to
reopen the case.24
7. Irving contends that the trial court erred in denying a request to excuse a
prospective juror for cause. As the record shows that the request for excusal was
made by Nunnally, and that Irving did not join in this request, Irving has waived this
issue and may not utilize it for the purposes of appellate review.25
8. In her last enumeration of error, Irving contends that her forty-year sentence
was excessive and contrary to the principles of fairness. We discern no error.
24 See Carruth v. State, 267 Ga. 221 (476 SE2d 739) (1996); Hall v. State, 309 Ga. App. 222, 226 (3) (709 SE2d 910) (2011). 25 See Maxwell v. State, 267 Ga. App. 227, 229 (3) (599 SE2d 228) (2004) (defendant waived any objection by failing to adopt his co-defendant’s objection). Compare Underwood v. State, 283 Ga. App. 638, 638-639 (1) (642 SE2d 324) (2007) (where defendant joined in the co-defendant’s motion to excuse a juror for cause, the defendant preserved the issue for appellate review).
17 OCGA § 17–10–1 (a) (1) “authorizes the trial court to sentence a defendant to
any amount of time within the limits provided by law.”26 Here, Irving’s sentence falls
within the statutory ranges for each offense. The Supreme Court of Georgia has held
that
Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment. As a result, the issue of punishment is generally one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience.27
Given the facts of this case, Irving’s sentence was appropriate and was not so
disproportionate as to shock the conscience.28 Arguably, indeed, it was not
disproportionate at all.
Judgment affirmed. Branch, J., concurs and Miller, P. J., concurs in judgment
only.
26 (Citation omitted.) Baldwin v. State, 217 Ga. App. 866, 868 (3) (460 SE2d 80) (1995). 27 (Citation omitted.) Widner v. State, 280 Ga. 675, 676 (1) (631 SE2d 675) (2006). 28 Id.