Shropshire v. State

Decision Date06 September 2022
Docket NumberA22A0838
Citation365 Ga.App. 653,878 S.E.2d 562
Parties SHROPSHIRE v. The STATE.
CourtGeorgia Court of Appeals

Debra Kay Jefferson, Lawrenceville, for Appellant.

Fani T. Willis, District Attorney, Atlanta, Lyndsey H. Rudder, Ruth M. Pawlak, Assistant District Attorneys, Atlanta, for Appellee.

Brown, Judge.

Following a jury trial, Tony Shropshire was convicted of aggravated child molestation, incest, cruelty to children in the first degree, and two counts of child molestation. Shropshire appeals his convictions and the denial of his amended motion for new trial, contending that the evidence was insufficient to support his cruelty to children conviction and that the trial court failed to exercise its discretion to act as the "thirteenth juror." He further contends that the trial court committed jury instruction, sentencing, and merger errors. For the reasons that follow, we affirm Shropshire's conviction for cruelty to children in the first degree, reverse his incest conviction, vacate his convictions and sentences for aggravated child molestation and child molestation, and remand the case for the trial court to convict and resentence Shropshire on Count 1 for aggravated child molestation.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence." Ramirez-Ortiz v. State , 361 Ga. App. 577, 579 (1), 865 S.E.2d 206 (2021). So viewed, the evidence shows that the five-year-old victim spent the night at her grandmother's house and fell asleep on the couch. During the night, the victim awoke to Shropshire, her uncle, carrying her into a bedroom. Shropshire placed the victim on the bed, pulled down her pants, and licked the victim's vagina. He also lay on top of the victim, touched her vagina with his fingers, and placed his penis on her vagina but "didn't put it in" the victim's vagina. When Shropshire finished after sunrise, the victim put her underwear and pants back on, while watching a naked Shropshire wash his penis in the adjacent bathroom. Shropshire then knelt next to the victim and told her "not to say anything to anyone." The victim testified that she blocked out parts of the incident but remembered being confused, scared, and wanting to cry. Ten years later, the victim disclosed what happened to her mother, aunt, and friend. The victim's mother reported the incident to the police. The victim later told a forensic interviewer about the incident, and the recording of that interview was played for the jury. The victim's therapist diagnosed her with post-traumatic stress disorder and depression.

At trial, the victim's aunt, Shropshire's sister, testified that Shropshire repeatedly molested her by rubbing his hands and penis on her vagina when he was 15 and she was 5. Another female, C. W., testified that when she was 15 years old, she was hanging out with Shropshire, his brother, and a friend and was given marijuana. After smoking it, C. W. felt sick, her vision became blurry, and she wavered in and out of consciousness. C. W. testified that while she was in this state, Shropshire repeatedly raped her at two different locations. Shropshire's statutory rape conviction stemming from this incident was entered into evidence. Shropshire was 33 years old at the time of these events.

Shropshire was convicted of aggravated child molestation, incest, cruelty to children in the first degree, and two counts of child molestation. The trial court denied Shropshire's motion for new trial, as amended, and this appeal followed.

1. Shropshire contends that the evidence was insufficient to support his conviction for cruelty to children in the first degree. We disagree.

OCGA § 16-5-70 (b) provides that "[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."1 Thus, "[a] conviction for first degree child cruelty required the State to present evidence establishing the age of the child, that the child suffered physical or mental pain, that the pain was cruel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in so doing." (Citation and punctuation omitted; emphasis in original.) McDaniel v. State , 360 Ga. App. 194, 200 (1), 860 S.E.2d 806 (2021).

(a) Shropshire argues that there was no evidence he acted with malice. For purposes of first degree child cruelty to children,

malice in the legal sense imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and [wilful] doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Citation and punctuation omitted.) Vasquez v. State , 306 Ga. 216, 222 (1) (a), 830 S.E.2d 143 (2019). "With regard to the crime of cruelty to children, criminal intent may be inferred from conduct before, during and after the commission of the crime." (Citation and punctuation omitted.) Id. at 223 (1) (a), 830 S.E.2d 143. We conclude that the evidence, as outlined above, was legally sufficient to authorize a rational trier of fact to find sufficient malice to find Shropshire guilty beyond a reasonable doubt of first degree cruelty to children. See Chastain v. State , 239 Ga. App. 602, 604 (1) (a), 521 S.E.2d 657 (1999).

(b) Shropshire also contends that the State failed to prove beyond a reasonable doubt that he caused the victim both "excessive physical and mental pain," as alleged in the indictment. (Emphasis supplied.)

[W]hen a defendant is charged with the violation of a penal statute containing disjunctively ("or") several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively ("and") if it charges more than one of them. Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the [S]tate to prove all such separate ways or methods alleged in the indictment, but the [S]tate makes a prima facie case upon its establishment by proof of any one of them.

(Citation and punctuation omitted.) Martin v. State , 299 Ga. App. 845, 848 (2), 683 S.E.2d 896 (2009). "And at trial, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form." (Citation and punctuation omitted.) Cotman v. State , 342 Ga. App. 569, 581 (1), 804 S.E.2d 672 (2017). In other words, "[w]hen an indictment alleges in one count two alternative bases for conviction, a verdict of guilty is appropriate if either is established." Walker v. State , 254 Ga. 149, 151 (1), n.2, 327 S.E.2d 475 (1985). Thus, the State only had to prove that Shropshire maliciously caused the victim cruel or excessive physical or mental pain.

The determination of what is cruel or excessive physical or mental pain is to be made by the jury. "Cruel" and "excessive" are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts "cruel" or "excessive" pain (in this instance, mental rather than physical pain). There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferences from that evidence, would prohibit the finding made by the jury.

(Citation and punctuation omitted.) Bunn v. State , 307 Ga. App. 381, 382-383 (1) (a), 705 S.E.2d 180 (2010). We also keep in mind that "a determination of what constitutes excessive mental pain need not depend solely on the victim's testimony." Alford v. State , 243 Ga. App. 212, 214 (3), 534 S.E.2d 81 (2000).

Here, the victim testified to feeling scared, confused, and wanting to cry during the incident. Subsequently, the victim was diagnosed with post-traumatic stress disorder, anxiety, and depression. The victim's psychologist testified that the victim self-isolated, struggled in school, self-harmed, and was unable to hug or trust her family. After disclosing the incident, the victim attended weekly and bi-weekly therapy sessions. While talking about the incident with her mother and friend separately, the victim cried. The victim's psychologist testified the victim exhibited fear and dissociation when discussing the incident. This evidence was sufficient to support the jury's finding that Shropshire's acts caused the victim cruel or excessive mental pain. See Keith v. State , 279 Ga. App. 819, 822 (3), 632 S.E.2d 669 (2006) (evidence that the victim became upset when discussing the incident and underwent weekly counseling to cope was sufficient to support finding of cruel or excessive mental pain). See also Bunn , 307 Ga. App. at 383 (1) (a), 705 S.E.2d 180 (evidence that the victims felt sad and uncomfortable about defendant touching them as well as evidence of subsequent behavioral problems sufficient to support finding of cruel and excessive mental pain); Alford , 243 Ga. App. at 214 (3), 534 S.E.2d 81 (evidence that the victim suffered from recurrent flashbacks of rapes, depression, and at times was fearful, hysterical, and suicidal, sufficient to support finding of cruel or excessive...

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