Porter v. State

• Decision Date: 24 March 2000
• Docket Number: No. A99A1900.,A99A1900.
• Citation: 532 S.E.2d 407,243 Ga. App. 498
• Parties: PORTER v. The STATE.
• Court: Georgia Court of Appeals

532 S.E.2d 407

243 Ga. App. 498

PORTER v. The STATE.

No. A99A1900.

Court of Appeals of Georgia.

March 24, 2000.

Reconsideration Denied April 13, 2000.

Certiorari Denied September 29, 2000.

William J. Mason, Columbus, for appellant.

J. Gray Conger, District Attorney, Julia Slater, Assistant District Attorney, for appellee. SMITH, Judge.

Andrea Lee Porter was indicted jointly with her husband, Thomas Porter, on charges stemming from the abuse of Andrea Porter's son. The son, who was then four years old, was living with his natural father and visiting his mother and her husband for a thirty-day summer visitation. Thomas Porter was charged with aggravated child molestation, aggravated sexual battery, and aggravated battery. They were charged jointly with two counts of cruelty to children and contributing to the deprivation of a minor. They were tried jointly, and a jury found both Porters guilty on all charges.

Thomas Porter admitted the abuse. He testified that he accidentally burned the child's leg with an iron while he was ironing his military uniforms and beat him "off and on" with his hands, his fists, and a pillow from the time the visitation began. He also testified that he burned the child's anus, rectum, and scrotum with a hot curling iron several times; that he hit him in the stomach, head, and penis; and that he choked him "until his eyes started to roll back" before releasing him. Thomas Porter is not a party to this appeal. Andrea Porter (hereinafter "Porter") appeals from the judgment entered on the jury's verdict, raising five enumerations of error. We find that the evidence was sufficient to support her convictions, that her trial counsel provided effective assistance, and that the trial court did not err in admitting evidence of similar transactions or allowing improper cross-examination of Porter's character witnesses, as alleged by Porter. We conclude, however, that it was error to exclude the testimony of a psychologist regarding Porter's behavior and that this error was not harmless. Porter must therefore be retried.

1. Porter contends the evidence was insufficient to support her convictions for cruelty to children and contributing to the deprivation of a minor.

(a) OCGA § 16-5-70(b) provides that cruelty to children in the first degree is committed when one "maliciously causes a child under the age of 18 cruel or excessive physical or mental pain." Count 4 of the indictment charged Porter, along with her husband, with cruelty to children for maliciously causing her son "cruel and excessive physical and mental pain by striking [him] on the legs, feet and back, and burning said child with a candle." Although Porter correctly points out that no evidence presented at trial showed that the child was burned with a candle, it was not necessary that the State prove that the boy was injured in every way set forth in the indictment; these details were merely descriptive of the offensive act. Cole v. State, 162 Ga.App. 353, 354(2), 291 S.E.2d 427 (1982).

A person is a party to a crime,

only if he [or she]: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

OCGA § 16-2-20(b). The State was therefore required only to prove either that Porter abused her son herself or that she was a party to her husband's abuse of him.

This the State accomplished. First, the victim's father testified that the child told him that the damaging abuse was inflicted by both Porter and her husband and that Porter "slapped and hit" him. This alone was sufficient to support Porter's conviction on Count 4.

Second, the State presented evidence that authorized the jury to find that Porter was a party to the crime committed by her husband. Porter's husband testified that the abuse began on a Monday and continued until Thursday, when the child lost consciousness and stopped breathing. At that time Porter's husband called her, and she left work, rushed home, and transported the child to the hospital. The State presented expert evidence that the rectal injury would have affected the victim's walking and prevented him from sitting down. According to Porter's husband, this injury occurred one day before the victim was taken to the hospital; according to the doctor who examined the child at the hospital, it occurred two or three days earlier. The medical evidence also showed that the child had a five-inch burn on his left leg, which was several days old. Porter's husband admitted that the abuse had been going on for two or three days. Yet incredibly, Porter testified that she saw her son every evening when she returned from work and that she never noticed anything wrong. She only noticed a small burn from the iron on her son's leg, even though she swam with the children Wednesday afternoon and cuddled with them that evening.

Further, the State presented the testimony of witnesses from Porter's workplace indicating that Porter was aware of the abuse. Co-workers testified they heard Porter talking to her husband on the telephone Thursday morning, telling him that his form of discipline was child abuse and that she would not tolerate it. She was aware that her husband had been abused as a child himself. But even though she knew her husband was frustrated with the boy and might do something she considered child abuse, she did not leave work and go home. The evidence therefore also supports Porter's conviction on Count 4 as a party to the crime committed by her husband.

(b) Count 5 of the indictment charged Porter with maliciously causing her son cruel and excessive physical and mental pain by failing to take him for necessary medical treatment. Porter argues that no evidence was presented that such treatment was necessary before the child stopped breathing, at which time it is undisputed that she rushed home and brought him to the hospital. OCGA § 16-5-70(b). We do not agree. The State presented overwhelming evidence that the abuse inflicted on Porter's son took place over a period of several days, during which time Porter was present and in close contact with the victim each and every evening. The State also presented evidence that the child's suffering would have been obvious, simply because of the nature of his injuries. A doctor testified that the child's injuries would have been extremely painful to him unless he was unconscious. Yet Porter did nothing to alleviate the child's suffering until he stopped breathing.

(c) Porter argues that Count 6 is simply "a rehashing" of Count 5, and the two counts should have merged. We find no merit in this argument. Count 5 is a crime against the person, requiring proof that Porter caused her son unnecessary pain. Count 6 charged Porter with causing her son to be deprived within the meaning of OCGA § 15-11-2(8) by depriving him of care necessary for his physical health. It is an offense against health and morals; it requires no showing of cruel or excessive pain but instead requires a showing of deprivation within the meaning of OCGA § 15-11-2. Although the two charges are based on similar facts, they have differing elements, and each requires proof of a fact not required to prove the other. Olsen v. State, 191 Ga.App. 763, 764-765(1), 382 S.E.2d 715 (1989). The jury was therefore authorized to find Porter guilty of both. On each of these counts, the evidence was sufficient to authorize the jury to find Porter guilty beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Porter contends the trial court improperly permitted the victim's father to testify over objection that after prior visits to Porter, the child had returned home bearing various minor injuries. Porter characterizes this as similar transaction evidence and argues that it was inadmissible because the State failed to give prior notice, as required by Uniform Superior Court Rule 31.3. The Supreme Court of Georgia indeed so held in Loggins v. State, 260 Ga. 1, 388 S.E.2d 675 (1990) and Maxwell v. State, 262 Ga. 73, 74-75(2), 414 S.E.2d 470 (1992). These cases, however, were overruled in Wall v. State, 269 Ga. 506, 500 S.E.2d 904 (1998), which held that the rule was not applicable to occurrences categorized as prior difficulties between defendant and victim. The rationale in Wall is that a defendant's prior acts toward the victim are admissible as evidence demonstrating motive, intent, or bent of mind toward the victim, thereby establishing "a logical, probative connection between the crime charged and the prior difficulty. [Cit.]" Id. at 509, 500 S.E.2d 904. Because the relationship between the defendant and the victim is usually relevant, it is not surprising that the nature of that relationship is subject to proof at trial. Id. at 510, 500 S.E.2d 904 (Fletcher, P.J., concurring specially). What is required, however, is that the trial court instruct the jury that the evidence is admitted for a limited use. Id. at 509, 500 S.E.2d 904. In this case, that was done. The jury immediately received an instruction that the evidence was admitted for the limited purpose of showing, as the trial court put it, "the relationship between the victims, alleged victims, and the defendant and to show the defendants' motive, intent, bent of mind in committing the alleged acts against the victim." The trial court also told the jury to consider the evidence only for that purpose and no other purpose. We therefore find no error.¹

3. Porter maintains the trial court erred in allowing improper cross-examination of her character witness. Porter called as a character witness an attorney with the Legal Assistance...