State v. Owens

766 S.E.2d 66, 296 Ga. 205, 2014 Ga. LEXIS 909
CourtSupreme Court of Georgia
DecidedNovember 17, 2014
DocketS14A0889
StatusPublished
Cited by16 cases

This text of 766 S.E.2d 66 (State v. Owens) 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
State v. Owens, 766 S.E.2d 66, 296 Ga. 205, 2014 Ga. LEXIS 909 (Ga. 2014).

Opinions

BENHAM, Justice.

Appellee Maria Owens was tried and convicted in regard to the death of an eleven-month-old infant Jaylen Kelly.1 The State contends the trial court erred when it failed to sentence appellee on the convictions for felony murder, but rather sentenced her on the [206]*206conviction for the lesser included offense of involuntary manslaughter (OCGA § 16-5-3 (a)). Because the jury returned mutually exclusive verdicts in this case, the judgment of conviction for involuntary manslaughter is reversed.

1. Viewed in a light most favorable to the jury’s verdicts of guilt, the evidence at trial showed the victim’s parents Danielle and Andre Kelly left the victim and his three-year-old sister in appellee’s care sometime between 7:00 a.m. and 8:00 a.m. on the morning of June 1, 2011. The parents testified the victim was in good health and acting normally, including walking2 and playing with his siblings, when they left him with appellee that morning. After she arrived at work around 8:30 a.m., Mrs. Kelly said she sent appellee a text message confirming she would be placing the victim and his sister with a new daycare provider.3 Around midmorning, Mrs. Kelly had a conversation with appellee in which appellee advised Mrs. Kelly that the victim was having trouble breathing. Appellee called 911 and informed emergency personnel that the victim was having trouble breathing. A fireman who responded to the call and was a certified paramedic testified when he asked appellee what was wrong, appellee informed him the child had bronchitis. The fireman said appellee’s explanation did not match the symptoms the child was exhibiting.4 The emergency personnel who responded to the scene made a decision to transport the victim to a hospital in Fayetteville. Eventually, the victim was life-flighted to a children’s hospital in Atlanta. The doctor who treated the victim at the children’s hospital testified that, when the victim arrived, he was going into cardiac arrest. Medical personnel were concerned about internal bleeding, but could not stabilize the victim to a point where surgery could be performed safely. Upon being informed that continued resuscitation would result in the victim’s being unable to breathe without a ventilator, the parents elected to cease extraordinary measures, and the victim died.

A social worker advised the police the victim had died under suspicious circumstances, and police arrested appellee the day after the child’s death. At trial, the State played for the jury appellee’s video-recorded interrogation with police. Appellee told police the victim was congested and, while changing the victim’s diaper in the [207]*207bathroom, she lifted him by one arm and patted and/or hit him on his side5 in order to make him cough. She said the victim screamed when she did this. Prior to taking the victim to the bathroom to be changed, appellee told police the victim had eaten some applesauce, had smiled at her, and had climbed off the couch to walk over to where some toys were sitting. Appellee said while waiting for emergency personnel to arrive, she asked her husband whether she had hit the victim too hard.

The Fulton County medical examiner testified that the cause of death was blunt force trauma to the torso and that the manner of death was homicide. She stated the autopsy revealed the victim suffered a fresh fracture to his lower back that could only have been inflicted by a “very hard blow.” The trauma to the victim’s torso caused a great deal of internal bleeding in the victim’s abdomen such that he would have had difficulty breathing. The county medical examiner said the victim would have been unable to walk with the kind of fracture he suffered to his back. Appellee’s medical expert agreed that the cause of death was blunt force trauma to the abdomen, that the manner of death was homicide, and that the trauma the victim suffered was non-accidental in nature; however, he opined that the fracture to the victim’s back had occurred days before the victim’s death.6

The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellee guilty beyond a reasonable doubt of the crimes for which the jury returned verdicts of guilt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. On appeal, both parties raise the issue of the State’s right to appeal, which question affects this Court’s jurisdiction. The State argues it is entitled to appeal pursuant to OCGA § 5-7-1 (a) (2)7 and OCGA § 5-7-1 (a) (6).8 Appellee contends the State has no right to appeal and that this Court is without jurisdiction. As discussed more fully in Division 3 of this opinion, infra, the judgment of conviction entered in this case was void because it was based on the return of mutually exclusive verdicts. Allaben v. State, 294 Ga. 315 (2) (a) (2) [208]*208(751 SE2d 802) (2013). See also Jackson v. State, 276 Ga. 408, 410, n. 2 (577 SE2d 570) (2003); Louis v. State, 290 Ga. App. 106, 109 (2), n. 13 (658 SE2d 897) (2008). As such, the State’s appeal is authorized by OCGA § 5-7-1 (a) (6),9 and this Court has jurisdiction to review the case on the merits.

3. The State contends the guilty verdicts returned on the two felony murder counts and the lesser included count of felony involuntary manslaughter were not mutually exclusive and the trial court erred when it sentenced appellee on felony involuntary manslaughter rather than sentencing her on the counts of felony murder. Appellee counters the jury returned mutually exclusive verdicts and argues the trial court properly sentenced her on the lesser included offense of felony involuntary manslaughter. We agree with appellee that the jury returned mutually exclusive verdicts; however, the trial court erred when it remedied the matter by sentencing appellee on the lesser included offense of felony involuntary manslaughter.

The record shows the original indictment did not include any counts of voluntary or involuntary manslaughter. (See note 1, supra.) During the charge conference at trial, appellee requested and the trial court agreed to give, without an objection from the State, jury charges on the lesser included offenses of voluntary manslaughter, felony involuntary manslaughter (OCGA § 16-5-3 (a)),10 and misdemeanor involuntary manslaughter (OCGA § 16-5-3 (b)).* 11 The trial court’s charges on felony involuntary manslaughter, simple battery, and reckless conduct were as follows:

This is involuntary [manslaughter]. Subchapter A. This is a felony. Aperson commits involuntary manslaughter when [209]

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Cite This Page — Counsel Stack

Bluebook (online)
766 S.E.2d 66, 296 Ga. 205, 2014 Ga. LEXIS 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-owens-ga-2014.