In the Interest of Q.S., a Child.

• Decision Date: 16 June 2011
• Docket Number: No. A11A0037.,A11A0037.
• Citation: 310 Ga.App. 70,712 S.E.2d 99
• Parties: In the Interest of Q.S., a child.
• Court: Georgia Court of Appeals

310 Ga.App. 70

712 S.E.2d 99

11 FCDR 1871

In the Interest of Q.S., a child.

No. A11A0037.

Court of Appeals of Georgia.

June 16, 2011.

H. Brannen Bargeron, for appellant.S. Hayward Altman, Dist. Atty., Mary Kathryn McKinnon, Asst. Dist. Atty., for appellee.BLACKWELL, Judge.

Q.S. participated in a vicious assault upon a classmate, and the juvenile court adjudicated her delinquent and ordered her into restrictive custody for 12 months. The adjudication of delinquency is based on findings that Q.S. committed acts that, if committed by an adult, would amount to aggravated battery,¹ aggravated assault,² and unlawful disruption of a public school.³ Q.S. appeals, contending that the evidence is insufficient to sustain the findings of delinquency and that the juvenile court erred when it ordered restrictive custody.⁴ We agree with Q.S. that the evidence is insufficient to sustain the findings of aggravated battery and unlawful disruption of a public school, and we reverse the adjudication of delinquency to the extent it is based on these findings. We think the evidence is sufficient, however, to sustain the finding of aggravated assault, so we affirm the adjudication of delinquency to the extent it is based on aggravated assault. Finally, we conclude that the juvenile court abused its discretion when it ordered restrictive custody based on a finding of fact that the evidence cannot sustain, and for this reason, we vacate the order of restrictive custody and remand for the juvenile court to consider again whether restrictive custody is warranted.

Viewed in the light most favorable to the adjudication below,⁵ the record shows that Q.S., then 15 years of age, and two other girls attacked and severely beat a classmate at Washington County High School. During the course of the altercation, Q.S. grabbed the victim by her hair, pulled her to the ground, and slammed the head of the victim against the floor. After the victim was on the ground, her three assailants kicked her, struck her with their fists, and pulled her hair. The assault ended when teachers and other students intervened, pulling Q.S. and the other two girls away from the victim.⁶

Following the assault, the victim had a bloody lip and nose, she complained of a headache and dizziness, and she required assistance to stand and walk. Her face later began to swell, and knots appeared on her head, as well as a number of bruises. The victim was taken by her mother to a local hospital, where she underwent a computed tomography (CT) scan. The results of this scan prompted physicians to order magnetic resonance imaging (MRI) of her brain, and this imaging revealed a preexisting brain tumor,⁷ located in the area where spinal fluid flows between the brain and spinal column. Her physicians then sent her to the Medical College of Georgia, where surgeons removed the tumor. The victim suffered complications following the initial surgery, which led to several additional surgical procedures to treat these complications.⁸ Since these surgeries, the victim has suffered from significant short-term memory loss and other impairments of her cognitive abilities.

At the hearing below, the State attempted to prove that the assault had somehow affected the preexisting tumor and rendered immediate surgery necessary and that the assault, therefore, was a cause of the resulting memory loss and cognitive impairment. The neurosurgeon who testified, however, said that it was impossible to know what effect, if any, the assault had on this tumor. Although the surgeon admitted it was possible that the assault had a “direct effect” on the tumor, he said it was just as likely that the assault had no effect at all. Moreover, there is no evidence that an immediate surgery was necessitated by the assault. In fact, the surgeon said that surgical removal of the tumor was inevitable because, considering the location of the tumor, the victim would not have lived a long life—perhaps only five more years—without surgical removal.⁹ The surgeon opined that it was fortuitous for the victim that the tumor was discovered when it was, inasmuch as the discovery of the tumor allowed its removal before the victim was afflicted with more serious symptoms.

Based on this record, the juvenile court found that Q.S. had committed acts that, if committed by an adult, would amount to aggravated battery, aggravated assault, and unlawful disruption of a public school, and the court adjudicated Q.S. delinquent. The court then considered the factors set forth in OCGA § 15–11–63(c) and concluded that restrictive custody is warranted, ordering Q.S. into restrictive custody for 12 months. Q.S. now appeals from the adjudication of delinquency and her placement in restrictive custody.

1. We first consider the sufficiency of the evidence of delinquency. To establish delinquency based on acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts. See In the Interest of A.A., 293 Ga.App. 827, 828, 668 S.E.2d 323 (2008). So, when a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and we consider whether the evidence adduced at the hearing would permit a rational trier of fact to conclude beyond a reasonable doubt that the juvenile committed the acts with which she is charged. See In the Interest of A.A., 293 Ga.App. at 828, 668 S.E.2d 323; see also In the Interest of J.C., 308 Ga.App. at 337, 708 S.E.2d 1. In considering the sufficiency of the evidence, we construe the evidence in the light most favorable to the adjudication below, keeping in mind that it is for the trier of fact, not this Court, to weigh this evidence, resolve any conflicts in the evidence, and assess the credibility of witnesses. See In the Interest of A.A., 293 Ga.App. at 828, 668 S.E.2d 323; see also Ferguson v. State, 307 Ga.App. 232, 233(1), 704 S.E.2d 470 (2010).

(a) Aggravated Battery. One commits aggravated battery under Georgia law when she maliciously causes another to suffer bodily harm involving, among other things, a deprivation of a member of the body. OCGA § 16–5–24(a). In this case, the State asserts, and the juvenile court found, that Q.S. deprived the victim of her brain, inasmuch as the victim suffered from short-term memory loss and impairment of her cognitive abilities after the assault. See Miller v. State, 275 Ga. 730, 732(1), 571 S.E.2d 788 (2002) (“When the evidence shows that a battered victim has suffered a severe injury to their brain, resulting in the loss of normal brain functioning, they are said to have been ‘deprived of their brain,’ thus suffering an aggravated battery.”); Scott v. State, 243 Ga.App. 383, 384–385(1)(b), 532 S.E.2d 141 (2000) (evidence that blows to head of victim caused memory lapses and permanent nerve damage is sufficient to sustain aggravated battery conviction). We agree that the evidence supports a finding that the victim suffered a loss of normal brain function following the assault, but we conclude that the evidence does not prove beyond a reasonable doubt that this loss of normal brain function was proximately caused by the assault that Q.S. and her accomplices committed.

For purposes of aggravated battery, one causes another to suffer an injury when her conduct is a “proximate cause” of the injury, or, put another way, a cause that, “in a natural and continuous sequence, unbroken by any efficient intervening cause, produces [the] injury, and without which the [injury] would not have occurred.” State v. Jackson, 287 Ga. 646, 648(2), 697 S.E.2d 757 (2010) (citation and punctuation omitted). “In a criminal case, proximate cause exists when the accused's act or omission played a substantial part in bringing about or actually causing the victim's injury ... and the injury ... was either a direct result or a reasonably probable consequence of the act or omission.” Chaney v. State, 281 Ga. 481, 482(1), 640 S.E.2d 37 (2007) (citation and punctuation omitted). So, to prove aggravated battery in this case, the State was required to prove beyond a reasonable doubt that the assault committed by Q.S. and her accomplices “played a substantial part in bringing about” the loss of normal brain function for the victim and that the loss of normal brain function “was either a direct result or a reasonably probable consequence” of the assault.

The State does not appear to dispute that the victim suffered from short-term memory loss and cognitive impairment only after the surgeries to remove her tumor and treat complications of the removal of the tumor,¹⁰ but the State contends that the assault affected the tumor and rendered these surgeries necessary. The evidence, however, simply does not support this contention. The only witness to testify about the effect of the assault upon the tumor was the neurosurgeon, and he said that it was as likely as not that the assault had no effect at all upon the tumor. The neurosurgeon also pointed out that the surgical removal of the tumor was inevitable and that, without it, the victim would not have lived a long life. And the neurosurgeon added that the sooner the surgery was performed, the better for the victim. The State points to evidence that the victim complained of a headache and dizziness soon after the assault and before any surgeries as evidence that the assault affected the tumor, but there was no testimony that dizziness is a symptom of such a tumor, and as to the headache, the neurosurgeon said that the appearance of this symptom suggested a possibility that the assault affected the tumor, “but it's also equally possible” that it did not. No rational trier of fact could conclude beyond a reasonable doubt from this evidence that Q.S. and her accomplices caused the short-term memory loss and cognitive impairment that the victim...