McDaniel v. State

• Decision Date: 25 June 2021
• Docket Number: A21A0590
• Citation: 860 S.E.2d 806,360 Ga.App. 194
• Court: Georgia Court of Appeals
• Parties: MCDANIEL v. The STATE.

360 Ga.App. 194

860 S.E.2d 806

MCDANIEL

v.The STATE.

A21A0590

Court of Appeals of Georgia.

June 25, 2021

David G. Williams Jr., Atlanta, for Appellant.

Deborah Gonzalez, Kenneth W. Mauldin, Victoria Lynn Goff, for Appellee.

Barnes, Presiding Judge.

For acts committed upon her nephew, B. F., Christina McDaniel was found guilty of two counts of first degree child cruelty. The trial court imposed upon her two concurrent 20-year sentences, to serve 10 years in prison and the remaining time on probation. Denied a new trial, McDaniel contests in this appeal the sufficiency of the evidence, the admission of hearsay evidence, the absence of certain jury instructions from the final charge, the trial court's refusal to merge the two counts for sentencing purposes, and the court's handling of her request to take judicial notice of a purportedly established fact on motion for new trial. For the reasons explained below, we affirm in part, vacate the sentences, and remand the case for re-sentencing.

1. When an appellant challenges the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Pursuant to OCGA § 16-5-70 (b), "[a]ny 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." One count of the indictment alleged that "between the 1st day of January, 2018, and the 1st day of May, 2018, the exact date of the offense being unknown," McDaniel "did maliciously cause [B. F.], a child under the age of eighteen (18) years, cruel and excessive pain by tying the victim up in the garage." A second count alleged that "between the 1st day of January, 2018, and the 1st day of May, 2018, the exact date of the offense being unknown," McDaniel "did maliciously cause [B. F.], a child under the age of eighteen (18) years, cruel and excessive physical and mental pain by keeping him in a garage which was not temperature controlled."

At McDaniel's trial, evidence adduced from the State's witnesses showed the following. B. F. and his brother, who was about four years older than B. F., were removed from their parents’ custody when their parents were having drug problems. The boys were placed in the custody of McDaniel, their maternal aunt. Already living at her residence, were McDaniel, her five children, and her husband.

About three years later, on April 26, 2018, when B. F. was nine years old and in the third grade, his classmates alerted their teacher by 8:00 a.m. to look at B. F.’s hands and wrists. Outside the classroom, the teacher asked B. F. to show her his hands; when B. F. pulled up his sleeves, the teacher saw, as she described at trial, the child's swollen hands and the "red marks all over his wrists, and they were really raw." The teacher recounted at trial that "he told me that his aunt had done it to him." The teacher testified that she was aware at the time that McDaniel was B. F.’s guardian, as the aunt had previously come to school lunches.

As a mandatory reporter of suspected child abuse, the teacher notified both the principal and the school counselor of the matter. The counselor spoke to B. F., and the child said that he had gotten "tied up" and left lying on his stomach in the garage. As the counselor described at trial, B. F.’s hands were swollen, his "hands looked severe," and "there were contusions around his wrists." The principal contacted the sheriff's office.

Meanwhile, as the counselor recounted at trial, McDaniel had come to the school for another of her frequent lunches there. The counselor testified that after McDaniel had lunch with B. F. and/or one of her own sons (who was also a student at that school), she sought to check both boys out of school for the day. B. F. was summoned to the counselor's office. But because the counselor and the principal were concerned about B. F.’s going home with McDaniel, the counselor contacted the Department of Family and Children Services ("DFCS"), and the principal called the sheriff's office again. They waited for such help to arrive. As the counselor testified,

[McDaniel] stayed for a long time because we were basically making her stay, because we weren't sure what to [do] with [B. F.], so she just didn't know anything, she just waited an abnormally long period of time to wait for a child to come from class, and then I eventually went out to talk to her, to say here is sort of what's going on.

Thereafter, officers from the sheriff's office and workers from DFCS responded to the school. A DFCS case worker met with B. F. and observed what she described at trial as "ligature marks on both wrists and ... his hands were swollen." B. F. disclosed to the case worker that on the night before, he had been tied up by his aunt, McDaniel, who had then left him in the garage to sleep; and that his brother had untied him earlier that morning. The case worker took photographs of B. F.’s wrists and hands, and the photographs were shown to the jury.

The DFCS case worker, together with a DFCS administrator over investigations, interviewed McDaniel for an explanation of how B. F. had sustained the injuries. McDaniel denied ever seeing the marks on B. F.’s wrists, asserting that the marks had not been on the child when he left for school earlier that day. McDaniel gave several possibilities as to how B. F. might have sustained the injuries – he had participated in an "eraser challenge"¹ at school; he had worn a jacket with cuffs that were too tight; and he was taking a new medication and was constantly wringing his wrists.

The DFCS case worker and/or the investigator from the sheriff's office determined that B. F. should undergo a medical examination and that both B. F. and his brother should undergo forensic interviews. DFCS did not have custody of either boy at the time. But McDaniel agreed to drive B. F. to the location where the medical examination would be performed, and arrangements were made for the boys’ maternal grandmother to drive B. F.’s brother to a designated location for his forensic interview. According to the investigator from the sheriff's office, after the grandmother picked up B. F.’s brother, she took "quite some time" to arrive with him at the prearranged location.

B. F.’s brother was interviewed that day by a deputy sheriff who was specially trained to conduct forensic interviews. He denied that B. F.’s injuries had been caused by McDaniel, and he stated that B. F. slept in a room inside the home. A recording of that forensic interview was played for the jury.

When B. F. underwent a medical examination that same day at about 4:00, he began retreating from his prior accusations about McDaniel. The examining physician assistant recounted at trial,

I asked [B. F.] what had happened today at school, to try to approach the subject of the reason he was there.... He said he told one of his friends that sometimes his aunt would tie his hands together,^{[2 ]} but then my friend took me serious, and I was kidding. And his friend told the teacher something.

With respect to B. F.’s wrists, the physician assistant found, among other things, "a generally horizontal line ... consistent with a binding injury, something tied around it." Based on statements and body demonstrations that B. F. made to her, the physician assistant became concerned that B. F.’s hands had been tied behind his back; while examining the child's back, the physician assistant discovered a small bruise at the lower part of his back near his spine. The physician assistant took photographs of B. F.’s injuries to his hands, wrists, and back; and those photographs were shown to the jury.

The physician assistant testified that when she specifically asked B. F. how he had gotten the marks on his wrists, he answered, "[M]y aunt said this was from the eraser challenge." The physician assistant testified that when she next asked B. F. whether he had been doing the eraser challenge, "[B. F.] laughed at me and said no." The physician assistant testified that when she later spoke with McDaniel, McDaniel offered that B. F. might have participated in an eraser challenge, or perhaps his sleeves had been too tight the day before.

The physician assistant opined that B. F.’s injuries were consistent with B. F.’s having been tied up, and that they were not consistent with either of McDaniel's proffered explanations. As the physician assistant summarized at trial, there were ligature marks around B. F.’s wrists, and

ligature marks are basically something was firmly tied around something. And what I saw, and it might not have been as clear in the photos, but his hands were still swollen and pink from being bound. That's typically from the compression and the blood flow isn't able to move back and forth like it should, so it causes edema there and swelling to the hands.

The next day, B. F. was interviewed by the same deputy sheriff specially trained in conducting forensic interviews. B. F. was asked whether he knew why he was there. Displaying his wrists to the interviewer, he answered that he had jokingly told a schoolmate that his aunt had tied up his wrists, but that his schoolmate had taken him seriously and thus told their teacher. B. F. told the interviewer that the only thing that had been around his wrists was duct tape from when he had been playing cops and robbers. He stated that he had never gone to bed with such tape on his wrists. When asked whether he was disciplined at home, B. F. answered yes, and stated that he would be spanked, made to stand in the corner, or made to sit on the couch. When asked whether he had any secrets, B. F. answered that he had a problem wetting the bed at night. A recording of that...