Freeman v. State

• Decision Date: 09 July 2015
• Docket Number: No. A15A0545.,A15A0545.
• Citation: 775 S.E.2d 258,333 Ga. App. 6
• Parties: FREEMAN v. The STATE.
• Court: Georgia Court of Appeals

333 Ga.App. 6

775 S.E.2d 258

FREEMAN

v.The STATE.

No. A15A0545.

Court of Appeals of Georgia.

July 9, 2015.

Stanley W. Schoolcraft, III, Stockbridge, for Appellant.

Elizabeth A. Baker, Asst. Dist. Atty., Tracy Graham-Lawson, Dist. Atty., for Appellee.

Opinion

McMILLIAN, Judge.

Following a jury trial in September 2013, Emmanuel Philemon Freeman was convicted of two counts of cruelty to children in the second degree and two counts of cruelty to children in the first degree and was sentenced to twenty years, seven to serve.¹Freeman timely filed a motion for new trial, as amended, which the trial court denied.On appeal, Freeman challenges the sufficiency of the evidence as to each conviction and further asserts that the trial court erred in denying his motion for a mistrial and that the State failed to prove venue on several counts.Finding no error, we affirm.

Viewed in the light most favorable to the jury's verdict,² the evidence shows that E.F. was born to Freeman and Averielle Outler on March 25, 2009.³At the time of his one-month checkup on May 6, 2009, his pediatrician, Iyer Rajamani, found that he was in good health, with normal eyesight and a normal head circumference of 40 cm.When Dr. Rajamani next examined E.F. on July 9, 2009 during an appointment for routine vaccinations, she immediately saw that his head was “really big” and measured the circumference as 49 cm.Because the growth of E.F.'s head was “definitely unusual” and he had a “sunset appearance,” which is caused by excess cerebrospinal fluid pushing the eyeballs downward, she instructed Freeman to take E.F. straight to a children's hospital to determine the cause of the swelling.

At the hospital, doctors confirmed that E.F. had excess fluid on his brain and performed surgery to insert a shunt to relieve the pressure on his brain.Dr. Stephen Messner, a pediatrician and expert in child abuse evaluations, was called to evaluate E.F.As part of the work-up, the hospital completed a skeletal survey of E.F., which included an x-ray of all of his bones.The x-rays showed a healing fracture of four ribs on E.F.'s left side, a healing fracture of his left femur, and a healing fracture of his right tibia.Doctors also concluded, based on MRI results, that E.F.'s brain had atrophied, which would result in permanent brain damage, and that his optic nerves and retina were damaged.Dr. Messner found no evidence of infection that could have caused any of E.F.'s injuries, and both Freeman and Outler indicated to him that they were not aware of any accidents that could have caused the injuries.

Based on the constellation of injuries, Dr. Messner concluded that E.F.'s injuries were caused by physical abuse.As a result, E.F.'s older sister, O.F., who was 14 months old at the time, was also evaluated.X-rays revealed that O.F. also had fractures of two ribs on her left side that were in the healing stage.Detective James Watson of the Clayton County Police Department was called to Scottish Rite Hospital on July 17, 2009, where he spoke with Outler, who told him that she had noticed E.F.'s head swelling approximately three weeks before the July 9 appointment with Dr. Rajamani.She, her husband, and their two children had been living at an apartment in Clayton County since April 2009 and she could think of no accidents or illnesses that could have caused E.F.'s injuries.She also confirmed that she and her husband were their only caretakers and that they did not use babysitters or family members to assist them in caring for the children.

Freeman also spoke with Detective Watson and told him that he had also noticed the swelling of E.F.'s head sometime in June and that he and Outler were the only individuals caring for their children.Freeman denied any history of accident or trauma that would explain E.F.'s injuries but admitted that he“plays too rough” with his children and “doesn't know his own strength.”Based on Watson's interviews with doctors and the defendants, E.F. and O.F. were placed in protective custody.Freeman and Outler were charged with four counts of first degree cruelty to children (Counts IV, VI, VIII, and X), two counts of second degree cruelty to children (Counts I and II), and four counts of aggravated battery (Counts III, V, VII, and IX) stemming from their abuse of E.F. and O.F. and their subsequent failure to seek medical attention for their children.

At trial, Dr. Messner explained that the children's rib fractures were not the result of normal handling and that it would require “significant force” to cause them to crack, particularly since infants' bones are typically more pliable than those of adults.In addition, he opined that E.F.'s injuries were most likely caused by “shaken baby syndrome,” which occurs when a baby is grasped, squeezed, and then shaken back and forth, causing their arms and legs to whip around and the brain to rotate within the skull.Dr. Messner also testified that, due to the presence of callus or new bone being formed, all of the fractures had to have occurred at least one to two weeks prior to the x-rays, and based on the parents' statements, the various injuries likely occurred sometime in June.And in his expert opinion, E.F.'s prognosis would have been better if he had been brought to the hospital at that time rather than in July.Freeman testified at trial in his own defense and denied shaking or harming either of his children.The jury found Freeman guilty on four counts: Count I (cruelty to children in the second degree for failing to seek medical attention for E.F. after noticing his head swelling); Count II (cruelty to children in the second degree for fracturing O.F.'s ribs); Count VIII (cruelty to children in the first degree for fracturing E.F.'s ribs); and Count X (cruelty to children in the first degree for fracturing E.F.'s leg).

1.We first address Freeman's challenge as to the sufficiency of the evidence.“When an appellant challenges the sufficiency of the evidence to support his conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”(Citation omitted.)Salazar v. State,326 Ga.App. 627, 627(1), 757 S.E.2d 224(2014).And “[t]he appellant no longer enjoys a presumption of innocence, and an appellate court determines only the legal sufficiency of the evidence and does not weigh the evidence or assess the credibility of the witnesses.”(Citation omitted.)Id.

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.”OCGA § 16–5–70(b).A person commits the offense of cruelty to children in the second degree “when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.”OCGA § 16–5–70(c).Criminal negligence is defined as “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.”OCGA § 16–2–1(b).

(a) As to Count I, Freeman argues that he had no indication in June 2009 that anything was wrong with the size of E.F.'s head and that photographs from July 2009 presented by the State did not show a severe abnormality of the head that would cause a normal person to suspect that the child had a serious condition.However, the State presented evidence, through the testimony of Detective Watson, that Freeman was aware of the infant's head swelling in June 2009.And the jury was free to find the testimony of Detective Watson credible and to reject Freeman's testimony.See, e.g., Wheeler v. State,293 Ga. 247, 248, 744 S.E.2d 792(2013);Nicely v. State,291 Ga. 788, 790(1), 733 S.E.2d 715(2012)(“it is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient”)(citation and punctuation omitted).We therefore find that the State presented sufficient evidence to support his conviction as to Count I. SeeMorast v. State,323 Ga.App. 808, 812, 748 S.E.2d 287(2013)(evidence sufficient to support conviction for cruelty to children in the first degree where defendant knew for several days child was suffering from dog and human bites and excessive vomiting but did not seek medical attention).

(b) With respect to Counts II, VIII, and X, Freeman asserts that the State presented no evidence as to how these injuries occurred or that he was responsible for them.However, Dr. Messner testified that the location and nature of the rib fractures show—with “very high specificity”—that the injuries were the result of child abuse, specifically from a “squeezing” force.He also explained that leg fractures in a non-mobile infant with no history of accidental trauma is diagnostic of child abuse.The evidence further showed that Freeman and Outler were the sole caretakers for the children, and Freeman testified that Outler would never harm the children.

Freeman nonetheless argues that the State presented only circumstantial evidence and points to his testimony that perhaps O.F.'s ribs were fractured when he fell while holding her one time as a reasonable hypothesis that the State failed to exclude.

“Certainly, a conviction based upon circumstantial evidence requires that the proven facts not only be consistent with the hypothesis of guilt, but that they exclude every other reasonable hypothesis save that of the guilt of the accused.”Dyer v. State,295 Ga. 173, 176(1), 758 S.E.2d 301(2014).“However, whether the evidence does exclude every other reasonable hypothesis is ordinarily a question for the jury, and this finding by the jury will not be disturbed unless the verdict is unsupportable as a matter of law.”Id.Given the...