Gore v. State

• Decision Date: 15 February 2006
• Docket Number: No. A06A0647.,No. A06A0646.,A06A0646.,A06A0647.
• Citation: Gore v. State, 627 S.E.2d 198, 277 Ga. App. 635 (Ga. App. 2006)
• Parties: GORE v. The STATE. Walton v. The State.
• Court: Georgia Court of Appeals

277 Ga. App. 635

627 S.E.2d 198

GORE v. The STATE.

Walton v. The State.

No. A06A0646.

No. A06A0647.

Court of Appeals of Georgia.

February 15, 2006.

William J. Mason, Columbus, for appellant (case no. A06A0646).

John R. Mobley, II, Tifton, for appellant (case no. A06A0647).

J. Gray Conger, District Attorney, Ragen D. Marsh, Assistant District Attorney, for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, Billy Joe Gore and his live-in girlfriend Chianti Walton were both convicted of child cruelty arising out of their failing (for over a week) to seek medical treatment for Walton's 15-month-old daughter who was suffering from second and third degree burns caused by scalding water. In Case No. A06A0646, Gore appeals, challenging the sufficiency of the evidence and claiming ineffective assistance of counsel. In Case No. A06A0647, Walton appeals, also challenging the sufficiency of the evidence and further claiming that the trial court erred in its jury instruction on malice and in its denial of her motion for mistrial. For the reasons set forth below, we affirm in both cases.

When reviewing defendants' challenges to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury's verdict, and the defendants no longer enjoy the presumption of innocence. Short v. State.¹ We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendants guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia.²

So viewed, the evidence shows that on the afternoon of October 6, 2002, Gore (who lived with Walton) was caring for Walton's two daughters while she was at work. He placed the girls (a fifteen-month-old and a three-year-old) in a tub of warm water and went outside to speak with a friend. The three-year-old came outside and informed Gore that the fifteen-month-old had turned on the hot water and was crying. He returned to the bathroom and found the 15-month-old severely burned. He took the injured child to Walton's nearby workplace, and Walton told him that she feared if medical treatment were sought, DFACS would take the children. Gore also took the child to Gore's own mother, who instructed him to seek immediate medical treatment. Though aware the child's injuries needed immediate medical attention and could not be adequately treated at home, Gore and Walton decided to conceal the injuries from DFACS and relatives by not seeking medical treatment and by instead simply purchasing and applying some items from a local pharmacy.

Late on the evening of October 13, Walton, acquiescing to the demands of a relative who insisted on seeing the injured daughter left the girl with the relative. Picking up the crying child who was obviously in pain, the relative immediately discerned the severe burns on the lower portions of the child's body and tried to remove the child's shirt and diaper, both of which were stuck to the child's burned skin (no gauze bandages were present). She rushed the child to the local emergency room, where the treating physician diagnosed second and third degree burns on the child's back, buttocks, and left leg and foot, some of which wounds had become infected. The physician immediately administered a narcotic pain killer and antibiotics and cleansed, treated, and dressed the wounds. The child remained in the hospital for four days and later received physical therapy.

Gore and Walton were charged with cruelty to children in that they maliciously caused the child excessive physical pain by failing to get her appropriate medical care. Gore was also charged with a second count of cruelty to children, which accused him of maliciously burning the girl with hot water. A jury found them both guilty on the failure to obtain medical care count but acquitted Gore on the burning count. Following the denial of their separate motions for new trial, Gore appeals in Case No. A06A0646, and Walton appeals in Case No. A06A0647.

Case No. A06A0646

1. Gore first challenges the sufficiency of the evidence, arguing that no evidence showed that he acted maliciously. Specifically, he claims that since he took the child immediately to her mother and was only complying with the mother's desire not to seek medical care for the child (so as to avoid any repercussions from DFACS), no finding of malice was possible. We disagree.

OCGA § 16-5-70(b) provides: "Any 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." The malice element of this statute

imports 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. Intention may be manifest by the circumstances connected with the perpetration of the offense. 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.

( Punctuation omitted.) Brewton v. State.³ This is a classic question for the jury, whose finding of malice will not be set aside if supported by any evidence. See McGahee v. State.⁴

Here, Gore lived with the child's mother and cared for the child when the mother was working. Gore told police that despite his and Walton's understanding that the child required immediate medical attention from a physician, and despite the advice received from Gore's own mother to that same effect, he and Walton jointly "decided to ignore the immediate medical attention the child needed, and they tried to hide the injury from DFACS and other relatives." Thus, the evidence showed that Gore was not simply an outsider who was acceding to instructions from the mother; rather, he was a regular caretaker of the child who with the child's mother jointly decided to ignore the child's need for medical attention out of the selfish desire to avoid possible repercussions from governmental authorities.⁵ Such evidence supported a finding of malice. See Glenn v. State⁶ ("[m]alice, as an element of the crime of cruelty to children, can be shown by intentionally and unjustifiably delaying necessary medical attention for a child, as that delay may cause the child to suffer from cruel and excessive physical pain"); Hoang v. State⁷ (caretaker's failure to seek immediate medical attention for child not excused by parents' instructions that they should be contacted first); Wolf v. State⁸ (fear of DFACS did not justify failure to seek medical care for severely burned child); Hill v. State⁹ ("[b]eing afraid because one might get in trouble is neither justification nor excuse for refusing to obtain medical care for one's injured child," who was severely burned by hot water).

2. Gore contends that the trial court erred in failing to grant his motion for new trial on the ground of ineffective assistance of counsel. Specifically, although he does not contest the introduction of his first two prior felony convictions during the sentencing hearing, Gore claims that his counsel erred in failing to object to the introduction of his third prior conviction. He argues that since the certified copies of that conviction did not contain any writing signed by him pleading guilty to that crime, the evidence was inadmissible to show that conviction. Had that third conviction not been proven in the sentencing hearing, Gore contends that he would not have been subject to the rule of OCGA § 17-10-7(c) requiring that a fourth-time felony offender not be eligible for parole.

At the hearing on the motion for new trial, Gore's burden was clear.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. The trial court's findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous.

(Citations omitted.) Domingues v. State.¹⁰

Because any objection to the admission of the certified sentence would have been futile, Gore is unable to show the first prong. Gore cites to no authority, and we are aware of none, that requires a writing reflecting a defendant's signature on a guilty plea to accompany a certified copy of the indictment and sentence (which reflect that conviction and defendant's representation by counsel) before that certified copy may be admissible to prove the conviction. To the contrary, Morrison v. State¹¹ noted that a "certified copy of sentence showing that defendant pled guilty and was represented by counsel was sufficient to support conviction." See Hudson v. State¹² (State properly proved prior conviction by submitting certified copies of conviction and sentence). Indeed, Berryhill v. State¹³ rejected defendant's argument that his signature was required on the convictions before certified copies thereof were admissible. Because any objection to the third conviction on this ground would have been futile, the failure to so object provides no basis for a claim of ineffective assistance of counsel. See Kidd v. State¹⁴ ("it is well settled that an attorney's failure to assert a futile objection provides no basis for a claim of ineffective assistance of counsel").

Case No. A06A0647

3. Walton argues that the trial court erred in denying her motion for mistrial, in which she urged that the State's failure to comply with its discovery obligations unduly prejudiced her defense. Specific...