Miles v. State, A21A1378

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBrown, Judge.
Citation362 Ga.App. 288,868 S.E.2d 262
Parties MILES v. The STATE.
Decision Date18 January 2022
Docket NumberA21A1378

362 Ga.App. 288
868 S.E.2d 262



Court of Appeals of Georgia.

January 18, 2022

868 S.E.2d 264

Matthew Shelton Nestrud, Grace Palmer Liu, for Appellant.

Joshua Bradley Smith, Jared Tolton Williams, Augusta, for Appellee.

Brown, Judge.

362 Ga.App. 288

A jury found Rodney Miles guilty of cruelty to children in the first degree and battery (family violence) for striking his girlfriend and two-year-old daughter during a domestic dispute. Miles appeals from his convictions and the denial of his amended motion for new trial, challenging the trial court's jury

868 S.E.2d 265

charge. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury's verdict, the evidence presented at trial showed that the victim and Miles had been in relationship for eight years and had three children together. Miles had a history of physically and verbally abusing and threatening the victim, including one incident when he pushed the victim while

362 Ga.App. 289

she was pregnant and then fired a gun into the ceiling. The charges in this case arose out of an incident in September 2018, when the victim and Miles got into an argument at their home and Miles repeatedly punched the victim while she was holding the couple's two-year-old daughter. The victim suffered injuries to her lip and required braces to repair loose teeth. The child suffered a laceration to her eye. Both the victim and the child were taken to the hospital for treatment. A DFCS investigative case manager who visited the victim and child in the hospital testified that the victim told her that Miles hit her just as she picked up the child after changing her.

A Richmond County Sheriff's officer who was the first to arrive on the scene testified that when he met Miles outside the home and asked him what was going on, Miles responded, "just a little domestic violence." When the officer went inside the home, he observed the injured victim and the child, who appeared very "fatigued, sleepy" and had a laceration under her eye. The victim told the officer that Miles "struck her in the face multiple times while she was holding [the child], and also struck [the child]" and that Miles punched her really hard, "like a man." When the officer spoke to Miles again, he stated that the victim had attacked him first and that he hit her one time. After the officer arrested Miles, he noticed lacerations on his knuckles consistent with someone having punched another person.

A body-cam video of the officer's interaction with Miles and the victim was played for the jury. During that video, the victim told the officer that she had just "picked up [her] baby ... and [Miles] started punching on [the victim] while [she] was holding [her] baby." The victim then told the officer that the child suffered a cut to her eye because Miles hit the child while the victim was holding her. On the video, the victim tells the officer that Miles hit her at least six times in the face and that she was "trying to cover [her] baby[’s] face." The victim repeatedly states to the officer that Miles did not have "to hit [her] while [she] was holding [her] baby." In a statement taken by police the night of the beating, the victim wrote that Miles struck her in the face while she was holding the child.

Months later, the victim changed her story and stated that a neighbor grabbed the child from the victim and was holding the child during the beating. At trial, the victim stated that she believes the child was injured because the neighbor was standing too close and trying to break up the fight. The victim testified that she did not remember parts of the attack "[b]ecause [she] ha[s] seizures and flashbacks, and that's why [she thought her] daughter was beaten that day." She also testified during trial that she did not remember "how things happened that day," but that she "honestly" thought

362 Ga.App. 290

that the child had been bitten. At one point during her testimony, the victim testified that she did not tell the officer about the bite mark and did not see how it occurred, but then she later stated that she "was trying to get away from [Miles and] that's how [she] bit [the child]." During a telephone call Miles made from jail, he questions the victim as to why she told police that he "punched the baby." When asked if she was still in a relationship with Miles, the victim testified that she still loves him and that she is "waiting on him to get counseling."

Miles testified in his own defense and admitted that he was acting aggressively and that he hit the victim in the face at least three times, "[m]aybe more," but denied hitting the child, claiming that the victim was not holding the child when Miles punched the victim: "I'm being charged with striking my child in the face. That did not happen, because she wasn't in [the victim's] arms." According to Miles, a neighbor had grabbed the child from the victim's arms when she heard Miles and the victim arguing. As for the injury to the child, Miles acknowledged that the child had blood around her eye, but he

868 S.E.2d 266

believed that the child had been bitten and had "teeth marks" around her eye, not a "scratch" from being punched. Miles testified that the bite happened during the altercation, but that he does not know who bit the child. He further testified that if he had punched the child, her face would have been fractured, bruised, or swollen.

1. Miles contends that the trial court committed plain error by failing to charge the jury on the lesser-included offenses of cruelty to children in the second degree and reckless conduct as lesser-included offenses of cruelty to children in the first degree.1 We disagree.

362 Ga.App. 291

At the outset, we note that Miles did not request charges on these two lesser included offenses in his written requests and did not object to the trial court's failure to give the charges.2 While Miles asserts that plain error applies to our analysis of whether a trial court errs in failing to sua sponte give a charge on a lesser included offense , the law is less clear. Indeed, there appear to be three parallel lines of authority that have been established in this area. Under the line established by State v. Stonaker , 236 Ga. 1, 2 (2), 222 S.E.2d 354 (1976), "[a] trial judge never errs in failing to instruct the jury on a lesser included offense where there is no written request to so charge." (Citation and punctuation omitted.) Martin v. State , 349 Ga. App. 656, 659 (2), 825 S.E.2d 227 (2019). See also Brown v. State , 285 Ga. 324, 327 (3), 676 S.E.2d 221 (2009) ; Harris v. State , 274 Ga. 422, 425 (4), 554 S.E.2d 458 (2001) ("[w]hile a trial court may charge on a lesser included offense on its own motion, the failure to do so, without a written request is not error") (punctuation omitted), citing Stonaker , 236 Ga. at 2 (2), 222 S.E.2d 354 ; Mosley v. State , 257 Ga. 382, 383 (2), 359 S.E.2d 653 (1987) ; Chadwick v. State , 360 Ga. App. 491 *5 (3), 861 S.E.2d 612 (2021) ); McMurtry v. State , 338 Ga. App. 622, 625 (3), 791 S.E.2d 196 (2016). As Justice Hill explained in his special concurrence in Stonaker , the purpose of this holding is to prevent a defendant from inducing an asserted error, sit silently hoping for an acquittal, and obtain a new trial when that strategy fails:

Under the prior rule (that the trial judge was required to charge, without request, the law applicable to lesser included offenses, where the evidence would have authorized conviction on a lesser offense), the defendant was permitted to defend his first trial as stated above, and get a new trial because the trial judge failed to charge, without request, the lesser included offense. That is to say, a defendant accused of an offense, as to which there was a lesser included offense as shown by the evidence, was virtually assured of a second trial if he could avoid referring to the lesser offense at his first trial and if the
868 S.E.2d 267
trial judge only charged the jury according to the defendant's announced theory of defense.

236 Ga. at 4, 222 S.E.2d 354 (Hill, J. concurring specially).

362 Ga.App. 292

In yet another line of cases — developed before the enactment of OCGA § 17-8-58 in 2007 — our appellate courts apply a standard originating with Code Ann. § 70-207, the predecessor statute to OCGA § 5-5-24 (c) ("[n]otwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not"). See Yarn v. State , 265 Ga. 787 (1), 462 S.E.2d 359 (1995) (noting "long-standing rule that it is error for the trial court to fail to give an appropriate charge on circumstantial evidence ... because the omission of the charge fails to provide the jury with the...

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