Elrod v. State

• Decision Date: 28 June 2012
• Docket Number: No. A12A0721.,A12A0721.
• Citation: 316 Ga.App. 491,729 S.E.2d 593,12 FCDR 2271
• Parties: ELROD v. The STATE.
• Court: Georgia Court of Appeals

316 Ga.App. 491
729 S.E.2d 593
12 FCDR 2271

ELROD
v.
The STATE.

No. A12A0721.

Court of Appeals of Georgia.

June 28, 2012.

[729 S.E.2d 594]

Timothy L. Kimble, for Appellant.

Gerard Patrick Verzaal, Cartersville, and Jana Willingham Allen, for Appellee.

DOYLE, Presiding Judge.

[316 Ga.App. 491]Billy Scott Elrod was convicted of cruelty to a child in the first degree.¹ He appeals, alleging that the trial court erred by overruling his objection to portions of the testimony of one of the State's expert witnesses and by refusing to charge the jury on the lesser included offense of simple battery. He also contends that trial counsel provided ineffective assistance by failing to call an expert witness to rebut the testimony of the State's expert witness. Finding no error, we affirm the judgment of conviction but remand the case to the trial court for a hearing on Elrod's ineffective assistance of counsel claim.

[316 Ga.App. 492]Viewed in favor of the verdict,² the record shows that Elrod and his co-defendant, Katherine Scott Barlow, began a romantic relationship in approximately November 2010.³ Elrod lived on the ground floor of a two-story, single-family residence in Cartersville and rented out most of the top floor, reserving the right to use the bathroom and kitchen on the top floor. The entire downstairs part of the house featured a cement floor, including Elrod's bedroom, where he kept a crib for his six-month-old son, who would occasionally visit. Barlow lived with her mother a short distance away, but by December, she began spending nights at Elrod's house and introduced Elrod to her children, A.M. and L.M., who were three years old and twenty months old, respectively, on the date of the incident.

On January 18, 2011, Barlow and Elrod put L.M. in the crib for a nap. The mattress for the crib was set at the highest level, which setting allowed L.M. to stand with the crib railing only reaching his chest. Barlow then went upstairs to take a shower, and

[729 S.E.2d 595]

when she returned approximately 15 minutes later, she found L.M. sitting upright on the couch with Elrod. Elrod claimed that he was in the adjacent room when he heard L.M. cry out, and when he went to check on the child, he found L.M. had fallen out of the crib, with his leg lodged in the crib railing and his face on the cement floor. Barlow did not see any noticeable injuries on L.M. at the time, although he indicated that his leg was uncomfortable and seemed less active than usual.

The following morning, L.M. continued to show signs of unusual inactivity, and Barlow first noticed signs of bruising on his face. Barlow gave him Tylenol all day, but did not call the pediatric clinic until that evening, at which time she was advised to take the child to an urgent care facility. Rather than doing so, she took him to the pediatric clinic the following afternoon—January 20—where Dr. Tammy Williams observed swelling in L.M.'s leg, advised Barlow that his leg might be fractured, instructed her that L.M. needed to go to Scottish Rite Hospital in Atlanta, and suggested that he be transported there in an ambulance. Barlow declined, however, instead choosing to transport L.M. from Elrod's house to her mother's house and pack L.M.'s things.

In the meantime, Dr. Williams reported L.M.'s injuries and need for immediate treatment to the Department of Family and Children's Services (“DFCS”), who in turn sent a representative, Jenna Cliver, [316 Ga.App. 493]to Barlow's mother's house to ensure that L.M. received the necessary care. Cliver followed Barlow, Elrod, and the two children to Scottish Rite Hospital, where L.M. was seen by the doctors, diagnosed with a transverse right tibia fracture, and fitted with a cast.

The following day, Dr. Jordan Greenbaum from the Center for Safe and Healthy Children at Children's Healthcare of Atlanta conducted her own examination of L.M. and observed numerous facial, chest, and abdominal bruises, many of which were inconsistent with normal accidental toddler bruising. Dr. Greenbaum also conducted separate interviews with Barlow and Elrod in order to obtain their recollections of the event, and she noticed several inconsistencies in the details provided by each of them. In her opinion, Elrod's explanation did not adequately account for the bruises on L.M.'s body or the type of fracture L.M. had sustained to his leg, and she concluded that L.M.'s injuries had resulted from physical abuse. Dr. Greenbaum also noted that her review of L.M.'s x-rays revealed a healing left fibula fracture as well. At trial, Dr. Greenbaum was introduced as an expert witness and testified as to the examinations she performed and the conclusions she reached. She also was asked to consider a hypothetical scenario resembling the version of events provided by Elrod in order to judge the likelihood of L.M.'s accidental injuries in such a scenario.

Elrod was charged with aggravated battery (Count 1) and first degree cruelty to a child (Count 2).⁴ Following deliberations, the jury found Elrod not guilty of aggravated battery and guilty of cruelty to a child in the first degree, and the trial court...