Bohannon v. State

• Decision Date: 27 February 1998
• Docket Number: No. A97A1779.,A97A1779.
• Citation: 230 Ga. App. 829,498 S.E.2d 316
• Parties: BOHANNON v. The STATE.
• Court: Georgia Court of Appeals

498 S.E.2d 316

230 Ga. App. 829

BOHANNON v. The STATE.

No. A97A1779.

Court of Appeals of Georgia.

February 27, 1998.

Certiorari Denied May 29, 1998.

Benson, Phillips & Hoffman, Herbert W. Benson, Tifton, for appellant.

C. Paul Bowden, District Attorney, Gregory A. Clark, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

A Tift County jury convicted appellant Mary Francis Bohannon of felony involuntary manslaughter, with reckless conduct as the unlawful act in support thereof, for causing the death of her two-month-old baby. The facts are as follows:

Both appellant and her co-defendant, the baby's father Joseph Turnbull, had severe drinking problems. Responding to a report of concern for the baby's welfare, a DFCS child abuse investigator visited appellant's home for a caseworker interview. During this visit, the caseworker drew up a "safety plan" designed to "reduce the imminent risk to the child or children that are in the home at the time"; included in the plan was an instruction for appellant to obtain babysitting when she intended to drink and an instruction for appellant to pick up the baby from the sitter only when she is sober and has not had a drink for 24 hours. After the DFCS worker had written up the safety plan and read it to her, appellant signed the plan, agreeing to the terms thereof. Appellant further admitted therein that she had an addiction to alcohol.

Less than two weeks later, appellant took a day trip to her brother's home on Pleasure Lake; Turnbull and a neighbor went with her. The baby was taken to a babysitter's home before the group left for the lake. Appellant and Turnbull consumed alcohol during the trip. Both became intoxicated. They returned from the lake at approximately 12:30 a.m. and stopped at the sitter's home to pick up the baby. Co-defendant Turnbull was intoxicated and was staggering. Although the evidence as to appellant's degree of sobriety is conflicting, there exists testimony that she also was drunk. The babysitter could tell the couple had been drinking and attempted to persuade appellant to leave the baby in her care.

Appellant and Turnbull brought the baby back to their home. Since her birth, the baby had slept with appellant and Turnbull in their bed. She had been sleeping on a pillow between Turnbull and appellant for over a week because a nurse practitioner had recommended the baby sleep on a pillow to aid the baby's respiration problems. After arriving home, appellant personally placed the baby on the pillow between them in the middle of their bed even though she was aware that Turnbull was intoxicated, appeared to be "buzzing," and "disorient[ed]" and "high." The intoxicated couple went to sleep. In the night, the baby rolled off the pillow, Turnbull rolled over onto the baby, and the baby was asphyxiated during the overlay. Held: 1. The evidence of record is sufficient, under the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 to sustain appellant's conviction of involuntary manslaughter with reckless conduct serving as the underlying unlawful act.

(a) Appellant's expressed and implied contentions that OCGA § 16-5-60 (reckless conduct), as applied to her, failed to provide the requisite due process notice regarding the type of conduct prohibited and that the underlying offense of reckless conduct could not be proved as a matter of law due to vagueness of the statute (see generally Hall v. State, 268 Ga. 89, 485 S.E.2d 755), were not timely raised in the trial court and have not been preserved on appeal. See Newton v. State, 259 Ga. 853, 854(5), (6), 388 S.E.2d 698; Arp v. State, 249 Ga. 403(1), 291 S.E.2d 495.

(b) "A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony." OCGA § 16-5-3(a).

Further, "`[t]here can be no conviction of the offense of involuntary manslaughter, either in the commission of an unlawful act, or in the commission of a lawful act without due caution and circumspection, where the homicide is directly due to an independent intervening cause in which the accused did not participate and which he could not foresee.... To constitute a crime there must be either the joint operation of act and intention, or criminal negligence.'" Thomas v. State, 91 Ga.App. 382, 384, 85 S.E.2d 644; see OCGA § 16-2-1.

Reckless conduct is an unlawful act in this State and constitutes a misdemeanor offense. "A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor." (Emphasis supplied.) OCGA § 16-5-60(b).

"Thus, the crime of reckless conduct is, in essence, an instance of criminal negligence, rather than an intentional act, which causes bodily harm to or endangers the bodily safety of another." (Emphasis in original.) Bowers v. State, 177 Ga.App. 36, 38(1), 338 S.E.2d 457. "`Criminal negligence necessarily implies, not only knowledge of probable consequences which may result from the use of a given instrumentality, but also wilful or wanton disregard of the probable effects of such instrumentality upon others likely to be affected thereby.'... `Criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action. Criminal negligence as used in our Code is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result.' The intent referred to is, of course, not the intent to kill but the intent to commit the unlawful act which proximately results in the death of another." Thomas, supra at 384, 85 S.E.2d 644.

Moreover, at law "[e]very person concerned in the commission of a crime is a party thereto"; and "a person is concerned in the commission of a crime only if he," inter alia, "[d]irectly commits the crime." OCGA § 16-2-20(a) and (b)(1).

The involuntary manslaughter indictment avers that appellant and Joseph Stanley Turnbull "did then and there, acting together as parties to the crime, unlawfully while in the commission of [r]eckless conduct, a misdemeanor cause the death of [a child]... less than 3 months of age, in that the accused caused the child's death while consciously disregarding a substantial and unjustifiable risk that their acts would cause harm and endanger the safety of [said child] in that the accused did, while in a drunken state, take the child from the safety of a babysitter and place the child in the bed with the accused and, in a drunken sleep, roll on top of the child thereby inflicting injuries to the child's head and asphyxiating her, such disregard by the accused being a gross deviation from the standard of care which a reasonable person would exercise in the situation...." According to the averment, the substantial and unjustifiable risk which appellant and her co-defendant consciously disregarded was that of taking an infant of less than three months old from the safety of the babysitter, while both accused were in a drunken state, and placing the infant in the bed with them both.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463, 464(1), 393 S.E.2d 737. Also, evidence admitted at trial by a witness subject to cross-examination thereon, regarding prior consistent or inconsistent statements being offered to bolster testimony where veracity is in issue or to impeach, respectively, is not limited in value merely to prove such matters but also constitutes substantive evidence of the matter asserted. Compare Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 with Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717.

The evidence viewed in a light most favorable to support the verdict shows, inter alia, the following: Both appellant and her co-defendant had serious drinking problems; alcohol had control of the accused. Responding to a report of concern for the baby's welfare, on July 2, 1996, a DFCS child abuse investigator interviewed appellant. Appellant informed the investigator that she had a problem with alcohol, had been to DETOX and to AA meetings but did not consider herself to be an alcoholic. The investigator had appellant execute a written safety plan, which is a device designed to reduce the "imminent risk" to a child in the home. The safety issue addressed in this plan was "[t]o insure the safety, health, and well being of [appellant's] child." As part of the plan, appellant agreed to acquire a reliable babysitter when she was going out drinking, and that she would "pick up her children and only when she is sober [and] hasn't had a drink for twenty-four hours." Appellant also admitted in the plan that she had an "addiction" to alcohol and agreed to work toward sobriety. The investigator read the safety plan terms to appellant and then had her read the terms and sign the plan. Appellant indicated she understood the plan and agreed to it; she did not have any questions regarding the terms of the plan.

On July 13,1996, less than two weeks after executing the safety plan, appellant left her young baby with a babysitter; she subsequently went drinking with her co-defendant, a Mr. Gilliard and a man named Bill, at her brother's house. Subsequently, they left and went to retrieve the baby from the sitter. At this time the co-defendant was intoxicated...