Hinkson v. State

Decision Date19 October 2020
Docket NumberS20A0887
Citation850 S.E.2d 41,310 Ga. 388
CourtGeorgia Supreme Court
Parties HINKSON v. The STATE.

Larry David Wolfe, L. David Wolfe, P.C., 101 Marietta Street, N.W., Suite 3410, Atlanta, Georgia 30303-2009, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Kathleen Leona McCanless, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, William Doss Hocutt, IV, Senior A.D.A., Office of the District Attorney, P.O. Box 1340, Columbus, Georgia 31902-1340, Julia Anne Fessenden Slater, District Attorney, Chattahoochee Judicial Circuit District Attorney's Office, 100 Tenth Street, Columbus, Georgia 31902-1340, Attorneys for the Appellee.

WARREN, Justice.

Appellant Shane Hinkson appeals from his conviction for felony murder predicated on aggravated assault stemming from the death of his eight-month-old son, Alexander Cabanayan.1 Hinkson claims that that the jury returned invalid verdicts, that his indictment was defective in several respects, and that the trial court erred in admitting into evidence the pre-trial statement that he made to the police and evidence of a gun found in his apartment. We affirm.

1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at Hinkson's trial showed the following. Hinkson and Jennifer Cabanayan met in the fall of 2010, and by the end of 2011, their son Alexander was eight months old and the couple was engaged to be married. On December 31, 2011, Jennifer dropped off Alexander at Hinkson's apartment in Columbus on her way to work. Hinkson, who was in the Army and stationed at Fort Benning, had agreed to watch Alexander that day and also that night while Jennifer went out with friends to celebrate New Year's Eve. However, Hinkson was upset that Jennifer was going out, and the couple argued over text and phone calls late that evening and into the early morning of New Year's Day. Jennifer stayed at a friend's house that night and then went straight to work in the morning. Alexander remained with Hinkson. After a missed call and a few text messages from Hinkson while she was at work, Jennifer received a phone call from Hinkson at 1:55 p.m. in which he told her that she needed to come to his apartment "right away" because "something bad had happened." Jennifer arranged for a ride there from her boss.

At trial, Jennifer testified that she called Hinkson on the way to his apartment and that she was "trying to calm him down" because he was "very distraught" and saying "pretty horrific, scary things," like that Jennifer "couldn't call anybody" and "that if [she did call] anybody, that they would take him away." Hinkson said if she "called an ambulance and it wasn't anybody but [her] that he would shoot them." When Jennifer arrived at Hinkson's apartment at about 2:30 p.m., she found him near the kitchen, holding a gun to his head. She found Alexander on the bed, covered by a duvet. One of his eyes was looking up while the other was looking down, and he was whimpering and had "things on his neck." Jennifer immediately left the apartment with Alexander, leaving Hinkson there, and her boss drove Alexander and Jennifer to a hospital in Columbus.

Alexander arrived at the hospital at approximately 2:55 p.m. Dr. Mark Anders, the emergency room physician who treated Alexander, testified that one of his eyes had swollen shut and that he had bruising on his neck. A CT scan of Alexander's head was "[m]arkedly abnormal" and showed "severe diffuse" swelling of the "entire right cerebral hemisphere" and "acute subdural hematoma over the right cerebral hemisphere." Dr. Anders testified that Alexander had a "severe amount of trauma to the entire right side of the brain." Alexander was then flown by helicopter to Children's Healthcare of Atlanta and underwent emergency brain surgery, but he died several days later on January 6, 2012.

Detective Andrew Tyner testified that the Columbus hospital called police about an hour after Alexander arrived to notify them of Alexander's injuries. Detective Tyner immediately went to the hospital, where he spoke to Jennifer and medical personnel. About 30 minutes after arriving at the hospital, the detective left and went to Hinkson's apartment. Hinkson was not there, but Detective Tyner found a handgun with a single bullet in it in the apartment. Police officers ultimately brought Hinkson to their headquarters, where Detective Tyner interviewed him.

In Hinkson's recorded interview, which was played for the jury at trial, he said the following. He was angry with Jennifer, and Alexander would not stop crying. He became extremely angry, "broke down," and "lost it." He "kept ... picking [Alexander] up and putting him down." He did not "even know how long [he] was doing that for," but Alexander stopped crying. Then Hinkson went to sleep. When he woke up in the morning, he realized something was wrong with Alexander and called Jennifer to tell her that something bad had happened and she needed to come to his apartment. He thought he had "f***ed up" and he told Jennifer that "if anyone but her went through the door [he would] shoot them." He was holding a gun in his hand when Jennifer arrived, and after Jennifer left with Alexander, he drove to Fort Benning, sought a chaplain, and turned himself in to military police. Hinkson had a problem with anger, he "picked [Alexander] up too hard ... [and] put him down too hard," and he put his hand over Alexander's mouth and kept "picking him up and putting him down."

Dr. Stephen Messner, a child abuse pediatrician, testified that Alexander's injuries were caused by external trauma and that his injuries could be caused by someone picking Alexander up and forcefully slamming him on a bed. The medical examiner testified that Alexander died as a result of an "abusive head injury" and that his manner of death was homicide.

2. Hinkson does not contest the legal sufficiency of the evidence supporting his conviction for felony murder based on aggravated assault. Nevertheless, consistent with this Court's general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational jury to find Hinkson guilty beyond a reasonable doubt of that crime.2 See Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Hinkson does argue that the evidence was legally insufficient to support his convictions for felony murder based on cruelty to children in the first degree and cruelty to children in the first degree, but he was not convicted of or sentenced for those counts, and, accordingly, "his claims as to the sufficiency of the evidence supporting those counts are moot." Blackshear v. State , 309 Ga. 479, 482, 847 S.E.2d 317, 321 (2020).

Hinkson also contends that the case of Turner v. State , 283 Ga. 17, 655 S.E.2d 589 (2008), requires that we vacate the verdicts for felony murder based on aggravated assault and for involuntary manslaughter and remand the case for a new trial. Turner , however, does not control this case. We have described Turner as a case that involved repugnant verdicts; in other words, its "guilty and not guilty verdicts reflect[ed] affirmative findings by the jury that [were] not legally and logically possible of existing simultaneously." McElrath v. State , 308 Ga. 104, 112, 839 S.E.2d 573 (2020). In Turner , there were repugnant verdicts because the jury found the defendant not guilty of malice murder based on a verdict form that specifically found that his action in shooting the victim was justified, but guilty on two other counts based on a verdict form that specifically found that the same assault against the same victim was not justified. See Turner , 283 Ga. at 20-21, 655 S.E.2d 589. Here, on the other hand, the jury did not return guilty and not guilty verdicts or make any specific findings, and Turner is therefore inapplicable.

Instead, Hinkson's contention regarding the impropriety of the involuntary manslaughter and aggravated assault verdicts is squarely controlled against him by our decision in State v. Springer , 297 Ga. 376, 774 S.E.2d 106 (2015). There, the defendant was convicted of involuntary manslaughter based on reckless conduct, as was Hinkson, and was also convicted of committing an aggravated assault against the same victim. See id. at 376, 774 S.E.2d 106. Moreover, there, like here, the jury's verdicts did not specify whether the simple assault forming the basis of the aggravated assault was an attempt to "commit a violent injury to the person of another," OCGA § 16-5-20 (a) (1), or the commission of "an act which places another in reasonable apprehension of immediately receiving a violent injury," OCGA § 16-5-20 (a) (2). See Springer , 297 Ga. at 383, 774 S.E.2d 106. Thus, it was possible that the jury in Springer found two different levels of mens rea for the same conduct: a finding of criminal intent for aggravated assault based on § 16-5-20 (a) (1) and a finding of criminal negligence for involuntary manslaughter based on reckless conduct. Previously, in Jackson v. State , 276 Ga. 408, 577 S.E.2d 570 (2003), we evaluated verdicts like those in Springer and concluded that they were mutually exclusive because they "represent[ed] a positive but illogical finding by the jury that [the defendant] acted with both criminal intent and criminal negligence." Jackson, 276 Ga. at 411, 577 S.E.2d 570. In Springer , however, we reevaluated Jackson , concluded that it had erred in its analysis, and overruled it and its progeny. See Springer , 297 Ga. at 379-383 & n.4, 774 S.E.2d 106. In overruling Jackson , we held in Springer that "multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive." Springer...

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    ...Clark did not challenge the substance of the indictment in the trial court, he has forfeited this claim. See Hinkson v. State , 310 Ga. 388, 397, 850 S.E.2d 41 (2020) (explaining that " ‘a general demurrer may be raised after jeopardy has attached and at any time during trial,’ as well as ‘......
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