Graham v. State, CR–14–1652.

• Decision Date: 12 February 2016
• Docket Number: CR–14–1652.
• Parties: Jessica Porter GRAHAM v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

210 So.3d 1148

Jessica Porter GRAHAM

v.STATE of Alabama.

CR–14–1652.

Court of Criminal Appeals of Alabama.

Feb. 12, 2016.

Rehearing Denied April 22, 2016.

Certiorari Denied June 10, 2016

Alabama Supreme Court 1150831.

Benjamin Joseph Freeman, Dothan, for appellant.

Luther Strange, atty. gen., and James B. Prude, asst. atty. gen., for appellee.

JOINER, Judge.

Jessica Porter Graham was convicted of child abuse, see § 26–15–3, Ala.Code 1975, and was sentenced to five years' imprisonment. Graham's sentence was split, and she was ordered to serve two years' imprisonment followed by three years' probation. The trial court ordered Graham to pay a $100 fine, a $100 crime-victims-compensation assessment, a $350 bail-bond fee, $2,000 in attorney fees, and court costs.

The State's evidence at trial tended to show the following: On February 18, 2014, Graham and her husband, Donnell Graham, brought J.G., their seven-week-old child, to the emergency room at Southeast Alabama Medical Center ("SAMC") because, they claimed, Donnell had fallen down some stairs while he was holding J.G. Dr. James Scott Burrow, a physician at SAMC, testified that he became involved in J.G.'s case after the Department of Human Resources was notified of J.G.'s injuries.

Dr. Burrow testified that an X-ray of the injury for which J.G. was brought to the hospital showed an "obvious break" that had occurred approximately one to three days before that X-ray was taken. (R. 161.) Dr. Burrow and his partner became concerned and conducted a skeletal survey

—an X-ray of J.G.'s entire skeletal system—"to look for any other unusual findings." (R. 161.) The skeletal survey revealed "some old rib fractures" and "a forearm fracture... that was already healing." (R. 162.) On one X-ray, Dr. Burrow observed a bone callus, indicating that a fracture on J.G.'s ulna was in the process of healing.¹ Dr. Burrow explained that a bone callus is a "new bone growth starting to form where a fracture has occurred. And it usually starts ... a week, ten days, maybe a little later after an acute fracture has occurred." (R. 159–60.) Dr. Burrow testified, "[W]hen you start to see fractures that are in various stages of healing or are old, that is a telltale sign or a huge red flag for us that something has happened and this child has been battered." (R. 162.) Dr. Burrow testified that babies' bones are more difficult to break than older children's and adults' bones and that it would require a fair amount of force to fracture a baby's bone. Dr. Burrow testified that, in his opinion, J.G.'s injuries occurred at different times and were intentionally inflicted.

Dr. Lauren Beth Morris, a pediatrician at Southeastern Pediatrics, testified that she examined J.G. the morning following his birth in December 2013. Dr. Morris noted that J.G. had tolerated delivery well and that nothing during her examination of J.G. indicated that he had suffered any trauma during birth. Dr. Morris testified: "I did not see anything on my initial physical exam of him when I examined him the morning after he had been born. I found that he moved both arms equally, both legs equally. He did not seem to be in any pain or discomfort with my exam." (R. 80.) Dr. Morris testified that J.G.'s test results were negative for brittle-bone disease

.

Dr. Morris testified that, from her experience, it is not normal for a seven-week-old child to have suffered multiple fractures. Dr. Morris examined J.G.'s X-rays in court and testified that the fractures "appear to be of different ages ... which means this was more than one event, more than one trauma that occurred. Not just a one-time thing." (R. 60–61.) Dr. Morris characterized J.G.'s fractures as non-accidental.

Investigator Ronald Hall of the Dothan Police Department testified that he interviewed Graham on February 19, 2014. Investigator Hall testified that Graham informed him that she was J.G.'s caretaker "90 to 95 percent of the time." (R. 94.) Graham told Investigator Hall that J.G. "had urinated on her while changing a diaper" and that she became "a little aggravated by that." (R. 94.) Graham further stated that, on February 14, 2014, J.G. was at home alone with Donnell, who "had alleged to have fallen down the steps at the house." (R. 94.) The following day, Graham requested to speak to Investigator Hall again. Graham informed Investigator Hall that she had forgotten to mention that J.G. had once fallen 10–12 inches off a bed and landed on the floor. Investigator Hall further testified that, "on more than one occasion, [Graham] indicated that she pretty much knew what had caused [J.G.]'s injuries, and she refused to talk about those incidents." (R. 94.) Graham informed Investigator Hall that J.G. never received professional medical treatment immediately following any of the incidents during which he may have been injured.

Susie Peters, a juvenile investigator² with the Dothan Police Department, also interviewed Graham. Investigator Peters testified:

"She mentioned a few different incidences [sic] that she felt something may have happened to cause an injury. One specifically was she was walking down the stairs, trying to feed him with a bottle, and he was putting his fingers in his mouth, and it frustrated her, and she pulled his hand away hard, and she—her words were she felt something kind of slip.

"....

"... She also referenced changing his diaper, that he would wiggle a lot and sometimes urinate on her, and she would hold his legs down maybe too hard and that that may have caused an injury. And, also, there was a few time[s] in the car seat when he would get tangled in the straps, and she would get frustrated and maybe pull or yank him out too hard."

(R. 106–07.) Investigator Peters confirmed that Graham never indicated that she sought medical care for J.G. after those incidents. Investigator Peters further testified that Graham felt that Donnell was too rough while handling J.G. and that, to her knowledge, Graham never reported her concerns to health-care or law-enforcement personnel.

Debra Porter, Graham's mother, testified that, after the February 18, 2014, emergency-room visit, J.G. was placed in her and her husband's care. Porter testified that, initially, J.G. was fussy and that he had a splint on his arm. Porter testified that, at the time of trial, J.G. was 19 months old, that he seemed to be a healthy, happy toddler, and that he had suffered no fractures since living with them.

After the State rested, Graham moved for a judgment of acquittal, or, in the alternative, to dismiss the case, stating:

"We believe that the State has failed to show a prima facie case to meet the elements of Alabama code section 26–15–3, under which my client was indicted by the grand jury May term 2014.

"That code section basically states that a responsible person, having the responsibility or supervision of a child under the age of 18 years old, does torture, willfully abuse, cruelly beat or otherwise willfully maltreat said child under the age of 18 years old. That's basically the wording of the statute.

"In this case it's become—well, first of all, there has been no evidence presented that my client engaged in any such conduct. To submit a case to a jury under these circumstances would be asking them to make a ruling based on evidence that is not tied to my client. So, the State has failed to prove that she took any act of said nature to meet the statute.

"Furthermore, we would also like to move to dismiss the case. In the event that the court is not inclined to grant the motion for judgment of acquittal, we would further ask the court to dismiss the case based on the fact that it is our opinion that the indictment is a faulty indictment.

"It's become evident in this case through trial that because of the lack of evidence against my client, that the State has tried the case on language contained within the indictment that says that the defendant failed to get medical treatment for the child or prevent abuse or neglect from occurring. Basically, your Honor, that is not an element. That's a phantom element. That is not an element under the statute in which my client is charged under this indictment.

"In addition, any reference to such in this indictment would—just as a matter of argument, would had to have come from—I guess the State would say would have had to come from some case law, as far as failing to get medical treatment.

"But my client in this case, Your Honor—it also says to prevent abuse or neglect from occurring, as if she has to intervene and stop abuse from occurring. And that's just simply not in the statute.

"If the grand jury relied on that information in this indictment to indict the defendant, then, potentially, this court has no subject matter jurisdiction over the case.

"Furthermore not only could the grand jury have been misled by that wording, this jury, in my opinion, the only way can come to a conclusion of guilt would be under this faulty wording.

"And so, we would ask the court to either grant the judgment of acquittal, first and foremost, based on the lack of evidence against my client, or, in the alternative, to dismiss based on the fact that there is an element in the indictment that is not in the statute."

(R. 186–89.)

In response to Graham's motion for a judgment of acquittal, the State argued that it had proven a prima facie case of child abuse and summarized the evidence presented against Graham during its case-in-chief. The State asserted that it sought to prove that Graham had committed child abuse on the theory that she had failed to seek medical treatment for J.G. or that she failed to prevent abuse or neglect from occurring. The State clarified that it had elected not to pursue a conviction for child abuse on the theory that Graham had actually caused J.G.'s injuries. The State also explained that "the break on February 14th, 2014, is not what we're alleging as the child abuse." (R. 198.)

The trial court denied Graham's motions. The court explained that it relied on ...