309 Ga. 721 FINAL COPY
S20A0785. LONG v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Jennifer Long was convicted of malice murder and
first-degree child cruelty in connection with the death of her 18-
month-old daughter, Alexis Long. Appellant contends that the
evidence was insufficient to support her convictions and that her
trial counsel provided ineffective assistance. We affirm.1
1. (a) Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed the following. After
they could not conceive a child, Appellant and her husband, Timothy
1 The crimes occurred on January 29, 2012. In May 2014, a Muscogee
County grand jury indicted Appellant for malice murder, cruelty to children in the first degree, and felony murder based on first-degree child cruelty. Appellant was tried from December 7 to 11, 2015. The jury found her guilty of all counts. The trial court sentenced Appellant to serve life in prison without parole for malice murder and 20 concurrent years for child cruelty. The felony murder count was vacated by operation of law, although the court said that it “merged.” Appellant filed a timely motion for new trial, which she amended through new counsel in March 2019. After a hearing, the trial court denied the motion in November 2019. Appellant filed a timely notice of appeal, and the case was docketed to the April 2020 term of this Court and submitted for a decision on the briefs. Long, worked with the Division of Family and Children Services
(DFCS) to adopt a child. Alexis was born in June 2010, and came to
live with the Longs in Columbus around June 2011, after her
biological mother died and her biological father surrendered his
parental rights. Between June and November, DFCS case managers
visited the Longs’ home about every two weeks to check on Alexis,
and the Longs took her for regular checkups by her pediatrician. The
Longs adopted Alexis in November 2011. After that, DFCS stopped
its visits, and the Longs missed Alexis’s scheduled 90-day
pediatrician checkup in January 2012.
Timothy, who pled guilty to second-degree child cruelty and
agreed to testify for the State in exchange for a reduced sentence,
testified as follows.2 On the morning of January 29, 2012, Appellant
fed Alexis breakfast and got her dressed, and the family drove
together to a church in Griffin where Timothy was a guest preacher.
2 A person commits first-degree child cruelty when he or she “maliciously
causes a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (b). A person commits second-degree child cruelty when he or she “with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” Id. at (c). On the way there, Alexis was happy and slept a little in the car.
After the service, the family had lunch with church members; Alexis
ate and played around the church. On the way home, Alexis became
a little fussy. When they got home and Appellant took Alexis out of
her car seat, Alexis had a tantrum, and Appellant took the child into
the house to change her diaper.
Timothy did not follow Appellant into the house immediately
because, as he was walking inside, he realized that he had a pair of
glasses that he normally left in the car in his pocket, so he went to
put them back. While he was at the car, he heard a loud noise that
sounded like furniture being moved; the noise seemed to come from
the direction of Alexis’s room but could have come from a nearby
neighbor’s house. When Timothy went into his house, he asked
Appellant if she had heard a noise; she said no, but that there was
something wrong with Alexis. Alexis was lying on the floor of her
room, and it looked like she had vomit in her mouth. When Timothy
sat her up, she threw up. She was breathing heavily, looked droopy,
and was unresponsive to her name. He called 911 and started doing CPR. He described Alexis’s condition to the dispatcher, and the
dispatcher told him to stop CPR because she could hear Alexis
breathing. EMTs arrived soon after and took Alexis to a Columbus
hospital. Timothy and Appellant followed.
The doctor who treated Alexis when she arrived at the hospital
testified that her pupils did not react well and she was minimally
responsive to painful stimuli. A CT scan of Alexis’s head showed that
she had a subdural hematoma. She was stabilized and transferred
to Egleston Children’s Hospital in Atlanta. Shortly after she arrived
there, she was put on a ventilator. Alexis was determined to be brain
dead the next day, and she was taken off the ventilator; she died the
day after that. The medical examiner determined that Alexis’s cause
of death was blunt force trauma to the head. Significant trauma to
Alexis’s head caused a large amount of blood to collect inside her
head and her brain to swell; she also had bleeding inside her eyes.
In addition, Alexis had multiple bruises all over her body, which
were varying colors, indicating that they were different ages.
On the evening after Alexis was taken to the hospital, with Timothy’s consent, police officers searched the Longs’ house. They
found and photographed a broken wooden changing table in Alexis’s
room. The table’s support arm and padded top surface were broken,
a broken piece was still attached to the top surface, another piece
was lying on the floor, and small wood chips from the table were on
the floor and in a storage basket on the lower shelf. Hangers and a
box of “Scar Zone Bruise Cream” were lying on top of the changing
table pad. Two more boxes of bruise cream were on a table in the
living room.
Appellant and Timothy were interviewed by Columbus police
officers at the hospital soon after Alexis was brought in and again at
the police station the next day. At the hospital, Timothy gave an
account similar to the one described above, although he did not
mention hearing a noise while he was at the car. Appellant gave the
following account. On the way home from the church, Alexis was a
little fussy; Appellant thought that she might have been hungry. As
they got closer to the house, Alexis began to cry more loudly. When
they got home, Appellant took Alexis out of the car seat and into Alexis’s room, where she sat Alexis on the ground in “timeout.” She
did not leave Alexis in the room unattended. At some point during
the timeout, Alexis went limp and her eyes partially closed.
Appellant placed her hand on Alexis’s head and side and eased
Alexis down to the floor. Appellant called for Timothy, who was
bringing things in from the car. Timothy picked up Alexis, who had
vomit coming out of her mouth, called 911, and performed CPR on
Alexis. Appellant said that Alexis had several bruises because Alexis
fell a lot and that she had bought bruise cream to help heal the
bruises. The interviewing officer testified that Appellant spoke as if
she were talking about an object and not a child and that she was
“callous” and emotionless both during the interview and when she
was allowed to see Alexis.
At the police station the following day, Timothy repeated the
story he had given at the hospital, but added that he had heard a
noise like furniture being moved while he was back at the car.3
3 At trial, Timothy explained that after the first interview he had been
thinking very hard, trying to remember every little detail about the incident, Timothy also said that about two or three weeks before the fatal
incident, Appellant told him that a main support piece of Alexis’s
changing table had broken. He described the support as a single
piece of wood that came across beneath the changing surface.
Timothy said that they had been using the changing table only to
store diapers and were changing Alexis on the floor.
At the police station, Appellant initially repeated the story that
she had told at the hospital. However, near the end of the three-hour
interview, Appellant said that she put Alexis onto the changing table
(rather than on the ground). A few minutes later, Appellant said
that she threw Alexis onto the changing table, and when she did so,
the table made a loud sound and Alexis stopped crying.
Dr. Stephen Messner, a child abuse pediatrician, was asked to
consult on Alexis’s case on the day after she arrived at Egleston
Hospital. Dr. Messner gave the following testimony about Alexis’s
injuries. Alexis’s scalp had some areas of very thin hair, as well as
and that he remembered the noise when he was being questioned at the police station. He said that when he was at the hospital, he had been more concerned about what was going on with Alexis. hairs of different lengths, which indicated trauma, such as the hair
being pulled and broken. There were some short, curved scabs and
swelling on the back of her head. Alexis had a bruise within her ear,
which was unlikely to be accidental and was indicative of trauma.
Alexis had a number of retinal hemorrhages, which indicated
significant trauma, such as a high-speed motor vehicle crash or
falling multiple stories. Alexis had fluid underneath the skin on the
back of her head, and significant swelling of the brain, which
indicated that she had a brain injury. These injuries must have been
sustained a short time before she was taken to the hospital, because
someone with this type of head injury would not be able to walk, run
around, eat, or interact as Alexis had done at the church. Alexis’s
parents did not report any accidental trauma that would have
caused such severe head injuries, and the injuries were not
consistent with a toddler who was tossed about a foot onto a padded
changing table.
Alexis also had various bruises on her forehead, cheek, arms,
sternum, thighs, shins, and back of her legs. Many of these bruises were not consistent with typical toddler bruises caused by tripping
and falling. Alexis also had rectangular bruises on her chest and
legs, indicative of being struck by an object of the same shape. In
addition, Alexis had some linear bruises, consistent with being
struck by a long object such as a clothes hanger. Overall, Alexis’s
injuries indicated an ongoing pattern of abuse in the household.
Dr. Messner spoke with Timothy, Appellant, and Alexis’s
maternal grandmother. Dr. Messner showed the grandmother
photos of the visible injuries on Alexis’s face, and she said that those
bruises were not present when she saw Alexis at the church. When
Dr. Messner showed Timothy photos of many of Alexis’s bruises,
Timothy said that he had not seen them before.4 When Dr. Messner
showed Appellant the photos, she said she had never seen those
bruises before but that she recognized one bruise on Alexis’s leg
which may have been from when Alexis fell one or two weeks before.
4 At trial, Timothy testified that he bathed or changed Alexis only once
in a while and that Appellant was always home with Alexis while he was at work. He said that any time he saw a new bruise on Alexis, Appellant attributed it to a fall. He added that Alexis did fall and bump into things a lot, because she had just learned how to walk and run. Appellant also said that Alexis fell a lot. When Dr. Messner told
Timothy that Alexis had suffered blunt force trauma to the head,
Timothy said that he had no idea how it happened. When Dr.
Messner told Appellant that Alexis was going to die from her
injuries, Appellant said, “I hate to hear that”; her demeanor was
“flat” and emotionless.
Dr. Messner visited and took screenshots of Appellant’s
Facebook page on January 30. One photo that Appellant posted in
December 2011 shows some bruises on the side of Alexis’s forehead
and cheek. Dr. Messner testified that these bruises were not
accidental injuries because they were on fleshy parts of the child’s
face. On January 4, 2012, Appellant posted, “my child has one bad
temper . . . she thru [sic] a tantrum yesterday evening,” and later
commented, “[h]er tantrums don’t last long after Tim punishes her.”
Another photo, posted nine days before the fatal incident, shows
bruising on the side of Alexis’s face underneath her right eye and
some hair loss at the top of her head. Appellant wrote a comment on
another photo from the same date that said, “[S]he fell and has a couple scratches on her face.”
At trial, Appellant called seven witnesses to testify regarding
her character: her mother and father, who live in Griffin; her sister,
who lives in Lawrenceville; her aunt and grandmother, who live in
Michigan; and two long-time family friends, who live in Griffin. The
character witnesses generally testified that Appellant was gentle,
soft-spoken, a loving mother, and a nonviolent person. Appellant’s
aunt and grandmother acknowledged that they lived in Michigan
while Appellant was growing up in Griffin and only saw Appellant
about once a year. Appellant’s grandmother further acknowledged
that she had never met Alexis.
Appellant also testified at trial, giving a modified version of the
final story she told during her interview at the police station. She
claimed that when she and Alexis went in the house after returning
from church, Alexis walked into her room on her own, and Appellant
then sat her on the changing table. When Appellant turned around
to get some clothes for Alexis, Alexis fell off the changing table onto
the hardwood floor. Appellant acknowledged that she did not mention this fall in either of her interviews. She said that she had
been confused and did not want to admit that she put Alexis on the
broken changing table. Appellant admitted on cross-examination
that one of the reasons she did not take Alexis to her pediatrician
after her October 2011 checkup was because Appellant knew the
doctor would suspect child abuse.
(b) Appellant argues that the evidence presented at her trial
was circumstantial and insufficient under OCGA § 24-14-6 to
support her convictions. OCGA § 24-14-6 says, “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.”
However,
[w]hether an alternative hypothesis raised by the defendant is “reasonable” is a question committed principally to the jury, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law.
Smith v. State, 307 Ga. 680, 684 (838 SE2d 321) (2020) (citation and punctuation omitted).
Appellant asserts that the evidence did not exclude the
reasonable hypothesis that Timothy killed Alexis. Although the
evidence did not show exactly how Alexis’s fatal injuries were
inflicted, Timothy said consistently that he was out by the car at the
time those injuries occurred, whereas Appellant admitted that she
was alone in the room with Alexis and changed her story about what
she did to Alexis several times, each time giving an account that was
dubious in light of the physical and medical evidence. Viewed as a
whole, the evidence was sufficient for the jury to reject as
unreasonable the hypothesis that Timothy killed Alexis and instead
to find that Appellant was responsible. See, e.g., Smith, 307 Ga. at
685. See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009)
(“‘It was for the jury to determine the credibility of the witnesses and
to resolve any conflicts or inconsistencies in the evidence.’” (citation
omitted)).
Appellant also argues that the evidence was insufficient as a
matter of constitutional due process for a rational jury to find that she was guilty beyond a reasonable doubt of malice murder and
cruelty to children because the jury should not have believed
Timothy and the evidence about the broken changing table was not
significant. But as we have explained many times, when evaluating
the sufficiency of the evidence, “[w]e do not resolve conflicts in the
evidence or determine the credibility of witnesses; instead, we view
the evidence in the light most favorable to the verdict, with
deference to the jury’s assessment of the weight and credibility of
the evidence.” Chavez v. State, 307 Ga. 804, 806 (837 SE2d 766)
(2020) (citation and punctuation omitted). Viewed in this way, the
evidence presented at trial and summarized above was
constitutionally sufficient. See Jackson v. Virginia, 443 U.S. 307,
319 (99 SCt 2781, 61 LE2d 560) (1979); Smith, 307 Ga. at 685; Virger
v. State, 305 Ga. 281, 286 (824 SE2d 346) (2019); Gomez v. State, 301
Ga. 445, 452 (801 SE2d 847) (2017).5
5 In this case, Appellant argues that the evidence was constitutionally
insufficient. But we remind litigants that this Court will end its practice of considering the sufficiency of the evidence sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. 2. Appellant argues that her trial counsel provided ineffective
assistance by failing to object to the State’s improper closing
argument and by presenting an unreasonable defense theory to the
jury. To succeed on these claims, Appellant must establish that her
counsel’s performance was professionally deficient and that she
suffered prejudice as a result. See Strickland v. Washington, 466
U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To show deficient
performance, Appellant must show that counsel performed “in an
objectively unreasonable way considering all the circumstances and
in the light of prevailing professional norms.” Gaston v. State, 307
Ga. 634, 636 (837 SE2d 808) (2020) (citation and punctuation
omitted). To show prejudice, Appellant must show “a reasonable
probability that, in the absence of counsel’s deficient performance,
the result of the trial would have been different.” Id. We need not
address both parts of this test if Appellant makes an insufficient
showing on one. See Lupoe v. State, 300 Ga. 233, 240 (794 SE2d 67)
See Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020). This Court began assigning cases to the December term on August 3, 2020. (2016).
(a) Appellant argues that her trial counsel should have objected
during the State’s closing argument when the prosecutor questioned
why Appellant called as character witnesses relatives and friends
who did not live in Columbus or have regular interactions with her,
rather than people who may have had more frequent and recent
interactions with her, such as her minister, boss, co-workers, and
Facebook friends. This argument, however, was permissible because
“‘the prosecutor may properly draw inferences in his argument from
the nonproduction of witnesses.’” McGee v. State, 260 Ga. 178, 178
(391 SE2d 400) (1990) (citation omitted). See also Isaac v. State, 263
Ga. 872, 874 (440 SE2d 175) (1994) (holding that the prosecutor’s
closing argument about the appellant’s choice of character
witnesses, including observing that he did not call certain people
such as his unit commander and chaplain, was permissible because
“a prosecutor may draw inferences in his argument from the
nonproduction of witnesses”). “Because the prosecutor’s comments
during closing arguments were within the bounds of permissible argument, trial counsel’s failure to make a meritless objection to the
State’s closing argument is not evidence of ineffective assistance.”
Gaston, 307 Ga. at 640 (citation and punctuation omitted).
(b) Appellant also argues that the defense theory presented by
her counsel at trial was so unreasonable that it constituted
ineffective assistance. At the request of Appellant’s counsel, the jury
was instructed on the law of accident and involuntary
manslaughter, and counsel highlighted both concepts in his opening
statement and closing argument. Counsel also pointed to Timothy
as the most likely perpetrator of Alexis’s ongoing abuse, highlighting
the testimony about Appellant’s good character and the fact that
Timothy entered a plea deal to avoid more serious punishment.
Appellant argues that her trial counsel should have done more
medical research to allow a better theory to be presented to the jury.
However, Appellant has not demonstrated what further medical
investigation would have revealed or articulated the supposedly superior defense theory that counsel should have pursued.6 Thus,
Appellant has failed to establish prejudice. See Lupoe, 300 Ga. at
241 (“To show prejudice on a claim that trial counsel failed to
adequately investigate the case, [the appellant] had to at least
make a proffer as to what additional investigation would have
uncovered, and not merely speculate that such information exists
and would have made a difference.” (citation and punctuation
Judgment affirmed. All the Justices concur.
Decided September 8, 2020.
Murder. Muscogee Superior Court. Before Judge Mullins. Lindsey M. Brown, for appellant. Julia F. Slater, District Attorney, George E. Lipscomb II, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.
6 Appellant requested additional time after the hearing on her motion for
new trial to submit a supplemental affidavit from a pediatric neuroradiologist. Although the trial court granted Appellant one month to submit the affidavit, Appellant never filed it.