Kennedy v. State

592 S.E.2d 830, 277 Ga. 588, 2004 Fulton County D. Rep. 596, 2004 Ga. LEXIS 140
CourtSupreme Court of Georgia
DecidedFebruary 16, 2004
DocketS03A1378
StatusPublished
Cited by29 cases

This text of 592 S.E.2d 830 (Kennedy v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennedy v. State, 592 S.E.2d 830, 277 Ga. 588, 2004 Fulton County D. Rep. 596, 2004 Ga. LEXIS 140 (Ga. 2004).

Opinions

Benham, Justice.

Appellant Jason Steven Kennedy was convicted of the felony murder of Caitlyn Cawthon, the 19-month-old daughter of his girlfriend, with the underlying felony being cruelty to children.1

Emergency medical personnel were called to a Columbia County apartment where they found the child without a pulse and not breathing. The child was transported to a hospital where efforts to resuscitate her failed and she was pronounced dead. An autopsy performed the next day revealed a large subgaleal hematoma, an epidural hematoma, and subperiosteal bleeding. The medical examiner who performed the autopsy concluded the child’s death was the result of repeated blunt force trauma to the head that caused brain swelling and was an inflicted, non-accidental injury. The medical experts testified the lethal blows caused injury similar to that a child might receive in a fall from 10-30 feet or that which an unrestrained child would suffer in a car accident. The injuries were of such severity that the child would have been incapacitated and rendered incapable of meaningful activity. Based on statements of the child’s [589]*589mother and appellant to medical personnel and law enforcement officers that the child was alert and active 55 minutes before she died, medical experts opined that the fatal blows were inflicted on the child within the last hour of her life. When the child’s mother left the child in appellant’s care at 6:10 p.m. on July 11, the child was crying in her crib; when the child’s uncle and a friend arrived about 15 minutes later, they were told by appellant the child was sleeping. The uncle and friend left approximately 30 minutes after they arrived, but before exiting the parking lot, were chased down by appellant who reported the child was blue and not breathing.

1. Appellant contends the evidence was insufficient to authorize a rational trier of fact to find him guilty beyond a reasonable doubt of felony murder based on the felony of cruelty to children because there was no evidence the child suffered pain or that appellant acted maliciously.

(a) Cruelty to children is statutorily defined as “maliciously causing] a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (b). “What constitutes cruel or excessive physical pain is for the jury to determine” (Alexander v. State, 274 Ga. 787, 789 (1) (b) (561 SE2d 64) (2002)), taking into account generally-accepted societal norms. Sims v. State, 234 Ga. App. 678 (1) (507 SE2d 845) (1998). Appellant maintains there was no evidence from which the jury could conclude the child suffered pain since experts testified the blows inflicted on the child were of such severity the child was immediately rendered unconscious.

Appellant’s contention is premised on the belief that the State must prove the child suffered pain in addition to proving that appellant’s conduct caused pain. See Brewton v. State, 266 Ga. 160 (1) (465 SE2d 668) (1996). In point of fact, the two terms are synonymous, with the statutory element of the offense being that the defendant caused cruel or excessive physical or mental pain and one method of proving that element being presentation of evidence that the child exhibited signs of suffering pain. Accordingly, we will treat appellant’s enumeration of error as contending the evidence was insufficient to authorize his conviction because there was no evidence from which the jury could conclude the child was caused excessive physical pain since experts testified the blows inflicted on the child were of such severity the child was immediately rendered unconscious.

While two of the State’s three expert witnesses believed the child was rendered unconscious by the blows, a third expert, the medical examiner who performed the autopsy, testified the child “may very well have been dazed and concussed.” However, jurors need not be presented with expert testimony that a particular action on the part of the defendant caused a child cruel or excessive physical pain since it is not beyond the ken of the average layperson presented with evi[590]*590dence that a toddler died after being subjected to multiple severe blows to the head by an adult to decide whether the perpetrator caused the child cruel or excessive physical pain. Evidence of the child’s age, the extent of her injuries, the nature of the assault to which the child was subjected, and the force with which the child was struck is sufficient evidence from which a jury, applying generally-accepted societal norms, can conclude whether the defendant caused the child cruel or excessive physical pain. See London v. State, 274 Ga. 91 (549 SE2d 394) (2001) (no mention of evidence that injuries caused deceased two-year-old victim pain); Lucas v. State, 273 Ga. 88 (538 SE2d 44) (2000) (no mention of evidence that injuries caused deceased victim pain); Peters v. State, 268 Ga. 414 (490 SE2d 94) (1997) (no mention that six-month-old deceased victim was caused pain by lethal blunt-force trauma); Preddie v. State, 266 Ga. 576 (1) (468 SE2d 746) (1996) (no mention of evidence that injuries caused one-year-old decedent pain); and Wilson v. State, 257 Ga. App. 242 (1) (570 SE2d 679) (2002) (no mention of evidence that three-month-old suffered pain from diaper rash).

(b) The mental state of a defendant required to be established to prove cruelty to children is “ ‘the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm might result.’ ” (Emphasis in original.) Jones v. State, 263 Ga. 835, 839 (439 SE2d 645) (1994). The jury was authorized to conclude that appellant’s actions were malicious from the evidence that he, an adult, repeatedly struck the 19-month-old victim wilfully and wantonly with “ ‘an awareness of a plain and strong likelihood that such harm [might] result.’” Green v. State, 266 Ga. 550 (1) (468 SE2d 365) (1996). We conclude the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of felony murder, with the underlying felony being cruelty to children. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court improperly singled out his testimony when it charged the jury: “When Defendant testifies, he becomes the same as any other witness . . . you have a right to take into consideration the fact that he is interested in the outcome of the prosecution.” Contrary to appellant’s assertion, the contested instruction “made it plain that the defendant’s testimony was not to be given different treatment” from that of the other witnesses. Larry v. State, 266 Ga. 284, 287 (3) (466 SE2d 850) (1996). As we stated in Larry, the giving of the instruction is not error since the instruction “ ‘merely stated the self-evident fact of [Kennedy’s] interest in the outcome of the case.’ ”

[591]*5913.

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Cite This Page — Counsel Stack

Bluebook (online)
592 S.E.2d 830, 277 Ga. 588, 2004 Fulton County D. Rep. 596, 2004 Ga. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-state-ga-2004.