Flakes v. State

Decision Date19 August 2022
Docket NumberA22A1133
PartiesFLAKES v. THE STATE
CourtGeorgia Court of Appeals

DILLARD, P. J., MERCIER and MARKLE, JJ.

MARKLE, JUDGE

Following a jury trial, Johnie Flakes was convicted of cruelty to children in the first degree (OCGA §16-5-70 (b)) and criminal damage to property in the second degree (OCGA § 16-7-23 (a) (1)), stemming from an altercation at a restaurant.[1] He appeals from the trial court's denial of his motion for new trial, challenging the sufficiency of the evidence on both counts. Finding no error we affirm.

Viewed in the light most favorable to the verdict, Jackson v Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the record shows that Flakes and his wife were dining at the same restaurant as the victims, M. G., her 16-year-old nephew Z. C., and her daughter, C. S. Due to health problems, C. S. was coughing repeatedly. Flakes became agitated about the coughing, and began to make derogatory comments. In response, M. G. explained the cough was not contagious, and moved her party to another section of the restaurant.

Shortly thereafter, Flakes approached their table, shouted obscenities, and threatened M. G. M. G. stood and asked Flakes to leave them alone; instead, Flakes spit in M. G.'s face and then threw his milkshake in her face. Flakes punched M. G. in the head multiple times, knocking her to the ground, and, when Z. C. attempted to break up the altercation, he struck Z. C. in the face twice. After Flakes was pulled away by the restaurant employees, he struck M. G.'s phone out of her hand while she was attempting to call 911, destroying the phone. Flakes then fled the scene in his vehicle, but was later apprehended at his home after a standoff.

Z. C. was taken by ambulance to the hospital. He sustained painful bruising to his jaw and a bleeding, swollen ear. M. G. had sustained serious damage to her left eye, resulting in traumatic glaucoma and blurred vision.

At trial, Flakes admitted to striking the victims and knocking the phone out of M. G.'s hand, but he insisted these actions were in self-defense. The jury convicted him of cruelty to children in the first degree and criminal damage to property in the second degree. Flakes filed a motion for new trial, raising the issues he now asserts on appeal. Following a hearing, the trial court denied the motion. Flakes now appeals, arguing the evidence was insufficient to support his convictions. We disagree.

On appellate review of a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or judge the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt.

(Citation omitted.) Davis v. State, 357 Ga.App. 720 (1) (848 S.E.2d 173) (2020).

(a) Cruelty to children in the first degree.

Flakes contends that the evidence was insufficient to support this conviction because there was no showing that he knew Z. C. was under the age of 18, and therefore the intent element of the offense was lacking in this respect. We are not persuaded.

Pursuant to OCGA § 16-5-70 (b), "[a]ny 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."

Flakes rests his argument on statutory interpretation, claiming there is a knowledge requirement embedded in OCGA § 16-5-70 (b). In construing this statute, we are guided by the following rules of construction:

[T]he ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. Criminal statutes are construed strictly against the State, they must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations. Also, if a criminal statute is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.

(Citation omitted.) Owens v. State, 353 Ga.App. 848, 850 (1) (840 S.E.2d 70) (2020). Because statutory interpretation is a question of law, our review is de novo. Id.

Based on a plain reading of OCGA § 16-5-70 (b), there is no requirement to prove knowledge of the victim's age as an essential element of the offense. Rather, the only express term in the statute demonstrating any required mental state is "maliciously." OCGA § 16-5-70 (b); Kennedy v. State, 277 Ga. 588, 590 (1) (b) (592 S.E.2d 830) (2004) (noting the only required mental state for cruelty to children is malice). As our Supreme Court has explained, "the basic elements of the offense must be shown by evidence . . . . establishing the age of the child, that the child suffered physical or mental pain, that the pain was cruel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in so doing." Brewton v. State, 266 Ga. 160 (1) (465 S.E.2d 668) (1996).

Flakes claims that, in order to show malice, the State must prove he knew the victim's age.[2] However, for the purposes of the child cruelty statute, "[m]alice implies the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result." (Citation and punctuation omitted.) Jones v. State, 263 Ga. 835, 839 (2) (439 S.E.2d 645) (1994). Thus, to act "maliciously" under the statute is to act with the intent to cause harm or with an awareness that harm may result, not with an intent to harm a person the defendant knows to be a minor. Moreover, intent to cause the particular harm "is peculiarly a question for the jury" in child cruelty cases. Id.; see also Sims v. State, 234 Ga.App. 678, 681 (1) (b) (507 S.E.2d 845) (1998) ("Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.") (citations and punctuation omitted).

Furthermore, our rules of statutory interpretation dictate that we cannot simply add a knowledge element to the statute. See Mays v. State, 345 Ga.App. 562, 567 (814 S.E.2d 418) (2018) ("[T]his Court does not have the authority to rewrite statutes.") (citations and punctuation omitted). Here, the plain language of OCGA § 16-5-70 (b) contains no knowledge requirement as to the child's age, and we decline to interpolate one.[3] See, e.g., Brewton, 266 Ga. at 160 (1) (setting forth the elements of child cruelty in the first degree); compare OCGA § 16-5-70 (d) (2) (elements of child cruelty in the third degree include "having knowledge that a child under the age of 18 is present[.]"); Brown v. State, 233 Ga.App. 195, 196-197 (2) (504 S.E.2d 35) (1998) (contributing to the delinquency of a minor requires proof that accused knew the age of the minor under the provisions of OCGA § 16-12-1 (b) (4)). This claim of error thus fails.

(b) Criminal damage to property.

Flakes next challenges the sufficiency of the evidence supporting this conviction, asserting the State did not demonstrate the requisite monetary amount of damage to M. G.'s phone, pursuant to OCGA § 16-7-23 (a) (1). We conclude there was sufficient evidence to satisfy this element of the offense.

OCGA § 16-7-23 (a) (1) provides that criminal damage to property in the second degree occurs when one "[i]ntentionally damages any property of another person without his consent and the damage thereto exceeds $500.00[.]"

As we have explained,

the value of the damage to property (for which the defendant is responsible) is an essential element of the indicted crimes. And under OCGA § 16-7-23, the value of damage to the property of another may be established by several means. For example, a lay witness may give opinion testimony as to such value, subject to stating the factual predicate on which the opinion is based or otherwise showing that he or she had the opportunity to form a reliable opinion. Alternatively, the cost of an item may be sufficient to show the value of damage to everyday items if supported by other evidence showing the before and after condition of the item.

(Citations and punctuation omitted.) Wynn v. State, 344 Ga.App. 554, 556 (811 S.E.2d 53) (2018).

Here M. G. testified that her phone was new and in good condition at the time of the incident; it was rendered totally useless as a result of Flakes's actions; and it cost $657.00 to replace. Flakes...

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