Kain v. State

• Decision Date: 31 July 2007
• Docket Number: No. A07A1549.,A07A1549.
• Citation: 287 Ga. App. 45,650 S.E.2d 749
• Parties: KAIN v. The STATE.
• Court: Georgia Court of Appeals

287 Ga. App. 45

650 S.E.2d 749

KAIN v. The STATE.

No. A07A1549.

Court of Appeals of Georgia.

July 31, 2007.

Michael C. Garrett, Garrett & Gilliard, Augusta, for appellant.

Dennis C. Sanders, District Attorney, William P. Doupe, Assistant District Attorney, for appellee.

PHIPPS, Judge.

Based on a jury's finding that Lottie Kain's criminal negligence in failing to supervise her two-year-old daughter, Nicole Payne, and her three-year-old son, Jonah Payne, caused the children's deaths by drowning in April 2005, Kain was convicted on two counts of cruelty to children in the second degree and given consecutive sentences of five years imprisonment followed by five years on probation. Kain appeals her convictions. Among other things, she challenges the sufficiency of the evidence to show that she was criminally negligent. We find the evidence sufficient and affirm.

A succession of state's witnesses testified to Kain's chronic neglect in supervising her children. Her landlord testified that a couple of months after Kain and the children's father had moved into their residence, the landlord found Jonah by himself in the middle of the road near a ravine into which he could have fallen. When the landlord took the child home, Kain sought to justify her inattention to the child, then about one and one-half years old, by explaining that she had put him outside to play and told him not to leave the yard. On another occasion, the landlord observed that Kain and the father had left Jonah home alone in his playpen. The landlord had to explain the danger of that to Kain. Testimony given by two of Kain's neighbors showed that Kain often came over to their residences to use their telephones, leaving both Jonah and Nicole home alone, and that on numerous occasions they saw Jonah wandering outside by himself. After Kain left the children home alone for almost an hour awaiting a telephone call, one of the neighbors decided not to let her use the telephone anymore. The other neighbor stopped coming to the door when Kain knocked.

After receiving a report that Kain and the father had left Jonah home alone to attend a party, the Department of Family and Children Services provided the couple with inhome parenting classes. While the classes were in progress, Kain continued to leave Jonah, and then Nicole, unattended. These classes continued for about two years. The month after the classes ended, emergency medical personnel were summoned to Kain's residence because Nicole, unsupervised by any adult, had somehow gotten hair remover on her head and face. As a result, she was taken by ambulance to the hospital for treatment of chemical burns.

The drowning deaths of the children occurred the following month. Another one of Kain's neighbors testified that she saw Jonah and Nicole playing outside without supervision on that day, as she had many other times. At about 3:00 p.m., she saw the children going toward the rear of their residence. That was the last time she saw them. Kain testified that the children were with her at about 5:45 p.m., when they wandered outside the house. At a neighbor's urging, Kain placed a 911 call at about 6:00 p.m. reporting that the children were missing.

A paramedic who appeared on the scene at the time of the children's disappearance testified that although the father was extremely distraught and "just begging us to find his babies," "[t]he only concern [Kain] had was, I hope I don't go to jail for this." In a statement to police, Kain acknowledged that the children had gotten out of the house by themselves several times that day. She also admitted that she had only gotten one or two hours sleep the night before and had fallen asleep later that morning, because a couple whom she and the children's father had met through a toll-free chat line advertised on television had come to their house during early morning hours for a sexual encounter.

Several days after the children's disappearance, their bodies were recovered from a sewage retention pond accessible through wooded trails and located about 1,200 feet from the children's home. The forensic pathologist who performed the autopsy testified that, in his expert opinion, the children were conscious and would have experienced pain before drowning.

Testifying on her own behalf at trial, Kain denied any negligence in supervising her children either on the day they wandered away and drowned or at any time before. A forensic psychologist who evaluated Kain testified that although she scored in a borderline range of intellectual functioning and had received diagnoses of depression and post-traumatic stress disorder, she had graduated from high school, was not mentally retarded, and did not suffer from any mental deficiency or disorder that would relieve her of criminal responsibility.

1. There is no merit in Kain's challenge to the sufficiency of the evidence.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia[, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)].¹

In Reyes v. State,² a three-year-old girl whose mother often allowed her to wander unsupervised outside the home was found unconscious in a neighbor's yard after being attacked by an animal. In Baker v. State,³ police were summoned to break into a two-story home after the father had left his three-year-old and nine-month-old children unsupervised on the upper floor near an unprotected downward flight of stairs. In both cases, the parents' convictions for reckless conduct were upheld.

Reckless conduct

is an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another. It involves consciously disregarding a substantial and unjustifiable risk that a person's act or omission will cause harm or endanger the safety of the other person. Proof of criminal negligence is essential for a conviction of reckless conduct.⁴

Under OCGA § 16-5-60(b), reckless conduct is a misdemeanor.

Prior to 2004, Georgia had no felony statute protecting children from harm caused by criminal negligence. To rectify that situation, OCGA § 16-5-70(c) was amended in 2004 to provide that any 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.⁵ Also in 2004, subsection (b) was added to OCGA § 16-2-1 to define "criminal negligence" 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."⁶

As in Reyes and Baker, the evidence here authorized a rational trier of fact to find the defendant guilty beyond a reasonable doubt of criminal negligence in the supervision of her children. Kain does not challenge the sufficiency of the proof to establish that she caused her children cruel or excessive physical or mental pain. We find no merit in Kain's challenge to the sufficiency of the evidence.

2. Kain charges the trial court with error in denying an oral motion to quash the indictment brought by defense counsel at trial. We find neither error nor prejudice.

"It is well established that a special demurrer, which objects to the form of the indictment, must be made prior to pleading not guilty to the indictment: A general demurrer, in which ...