Ferguson v. State
| Decision Date | 12 May 2004 |
| Docket Number | No. A04A0060.,A04A0060. |
| Citation | 267 Ga. App. 374,599 S.E.2d 335 |
| Parties | FERGUSON v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Robert R. McLendon, IV, Blakely, for appellant.
J. Brown Moseley, District Attorney, for appellee.
Melissa Hamilton Ferguson was indicted for felony murder, cruelty to children in the first degree, and concealing the death of another. She pled guilty to concealing the death of another and proceeded to trial on the remaining charges. Ferguson was convicted of cruelty to children and acquitted of felony murder by a Decatur County jury. She was sentenced to ten years to serve on the cruelty and concealment counts, to run concurrent. On appeal, she challenges the sufficiency of the evidence and the trial court's failure to charge on reckless conduct. We affirm.
On appeal from a criminal conviction, 1 So construed, the evidence shows that on August 1, 2002, Ferguson's children, Javan Taylor and Tashia Hamilton, who were approximately 20 and 17 years old, were searching their mother's deep freezer for something to cook when they found the body of an infant wrapped intact in approximately six plastic bags. Taylor testified, that after returning the body to the freezer, his sister called the police and he called his mother. When his mother came home, she told them that the baby was not hers. She called 911 and told the operator that someone else had placed the baby in her freezer. Ferguson then called a meeting with close family members, telling them that the baby was hers, that she had given birth to the baby on the bathroom floor when she was alone at their home, and that she fell unconscious during the process and found the baby dead with the umbilical cord wrapped around its neck when she awoke.
James Spooner, Jr., an investigator with the Decatur County Sheriff's Office, investigated the case. He testified that when he arrived at Ferguson's residence, she was standing in the kitchen and that when he asked what was going on, Ferguson replied,
Ferguson testified that on the evening of February 15, 2000, she was home alone. At approximately 11:00 p.m., she felt a sharp pain that caused her to fall to her hands and knees. Ferguson maintained that she did not realize that she was pregnant until about four hours later when she felt the baby's foot after reaching between her legs; that she lost consciousness intermittently; that she did not know how the baby came out. Ferguson testified that at some time after 8:00 a.m. she regained consciousness. She pushed herself up, pulled the baby upward, and then she saw the umbilical cord wrapped around the baby's neck and leg, which she unwrapped before losing consciousness again. Ferguson further testified that she did not recall when or how she cut the umbilical cord; that the baby was dead; that she assumed the baby's death was caused by the cord being wrapped around its neck; and that she washed the baby's face and placed it in some plastic bags that were nearby and already "doubled up." Ferguson held the baby until about 1:00 p.m. and decided that she was going to keep the baby so she put her in the deep freezer. She did not tell anyone about the incident or that the baby was in the freezer.
Dr. Laura Darrisaw, the medical examiner who conducted the autopsy, was qualified as an expert in forensic pathology and pediatric pathology. Dr. Darrisaw testified that the baby was born full term and weighed seven and a half pounds; that the baby was born alive and its lungs were well-aerated, meaning that the lungs contained oxygen; that based on the lung tissue, the baby was not stillborn; and that there were no pathological abnormalities that caused the child's death. Dr. Darrisaw opined that the cause of death was probably asphyxia, and, after receiving additional information from the police, she determined that the manner of death was homicide.
1. Pursuant to OCGA § 16-5-70(b), a "person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain." Ferguson argues that her conviction must be reversed because there was no evidence that she acted maliciously or that the child experienced excessive pain. We disagree.
"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."2 The defendant's 3 Therefore, the determination of the defendant's intention is "peculiarly a question for the jury."4 Likewise, "the determination of what is cruel or excessive physical or mental pain"5 is a jury issue....
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...court is not required to charge the jury on a lesser included offense.") (citation and punctuation omitted); Ferguson v. State , 267 Ga. App. 374, 376-377 (2), 599 S.E.2d 335 (2004) (since the jury could accept either the defendant's account indicating that neither the crime of cruelty to c......
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...that the defendant's act or omission will cause the harm at issue or endanger the safety of the other person. Ferguson v. State, 267 Ga.App. 374, 375(2), 599 S.E.2d 335 (2004). Banta testified that the child was fine, and exhibiting only "rattly" breathing due to some chest congestion until......
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...of the defendant's intention is peculiarly a question for the jury. (Punctuation and footnotes omitted.) Ferguson v. State, 267 Ga.App. 374, 376(1), 599 S.E.2d 335 (2004). Based on the evidence that Wiggins repeatedly threatened the victim with prosecution if she did not cooperate with him,......