Thompson v. State

• Citation: 156 Ga.App. 1,273 S.E.2d 894
• Decision Date: 03 October 1980
• Docket Number: 60275,Nos. 60274,No. 60274,s. 60274,60274
• Parties: THOMPSON v. The STATE. BOYD v. The STATE.
• Court: Georgia Court of Appeals

Page 894

273 S.E.2d 894

156 Ga.App. 1

THOMPSON v. The STATE.

BOYD v. The STATE.

Nos. 60274, 60275.

Court of Appeals of Georgia.

No. 60274 Argued and No. 60275 Submitted July 10, 1980.

Decided Oct. 3, 1980.

Certiorari Denied Nov. 5, 1980.

William A. Wehunt, Atlanta, for appellant in No. 60274.

W. O'Neal Dettmering, Jr., Douglasville, for appellant in No. 60275.

W. A. Foster, III, Dist. Atty., Frank C. Winn, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

Defendants appeal their conviction in a joint trial for aggravated battery of their infant son.

1. Defendants contend that the evidence of injuries was insufficient as a matter of law to support convictions of aggravated battery.

The evidence shows that the defendants brought their nine-week-old male infant to a hospital emergency room near death as attempts at resuscitation failed. Defendant Boyd, the mother, told hospital personnel that the baby had fallen off a bed and stopped breathing. Physical examination, x-rays, and an autopsy revealed that it had abrasions and a laceration on the head, numerous bruises around the trunk, circular abrasions around both ankles, severe rash of the genital and anal areas, abrasions of the feet, a contusion of the brain, fractures of nine ribs, and marks at the top of the buttocks.

Code Ann. § 26-1305 (Ga.L.1968, pp. 1249, 1281; 1976, pp. 543, 544) states that aggravated battery is committed when a person "maliciously causes bodily harm to another by depriving him of a member of his body, or by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof."

It is argued that the evidence of injuries does not show that a member of the body was rendered useless or that the body or a member thereof was seriously disfigured.

In Penland v. State, 229 Ga. 256(1), 190 S.E.2d 900, a conviction of aggravated battery was affirmed on evidence of a beating leaving the victim's head a complete mass of blood, body covered with cuts and bruises, eyes swollen shut, and the victim incoherent. In Baker v. State, 245 Ga. 657(6), 266 S.E.2d 477, where the victim's jaw was broken, the evidence demonstrated "serious temporary disfigurement to the victim and loss of use of her jaw until it healed. The jaw had to be immobilized by wiring the teeth together. Under the statute, Code Ann. § 26-1305, and our cases, this was sufficient injury to warrant a conviction on aggravated battery. At a minimum a member or part of the victim's body was rendered useless and seriously disfigured. (Cits.)" Id. at 667, 266 S.E.2d 477. In Rollins v. State, 154 Ga.App. 585(5), 269 S.E.2d 81; where the victim was shot impairing the use of an arm and leaving scars on the body, this court said: "In our view, a jury question was presented as to whether the victim suffered 'serious disfigurement'. (Cit.) '(T)he jury having found it so, we will not reverse.' (Cits.)" Id. at 588, 269 S.E.2d 81.

In this case we likewise find that there was sufficient evidence to submit to the jury the issue of whether the injuries fell within the language of Code Ann. § 26-1305, supra.

2. Because the evidence was circumstantial, defendants contend it was insufficient to support their convictions. The evidence indicating guilt was that only the defendant parents could have inflicted the injuries because they had the care and custody of the infant until it was brought to the hospital with the injuries described above, that the injuries were inflicted over a period of several weeks, that the infant could not roll over or move itself more than inch or two, and that the mother had once thrown a plastic bottle which hit the infant in the head. Evidence to the contrary, from those who observed the infant with defendants at various times and places, was that they had never seen the baby mistreated by the parents or observed any injuries to it.

The only other hypothesis for the injuries was that they were not caused by the defendants but were due to an incident some days before the infant's death in which it was thrown from the front seat under the dash of a vehicle being driven by the father when he had to make a sudden stop, and to the fall from a bed which caused the parents to bring it to the hospital where it was pronounced dead. This hypothesis is not based on competent evidence, as it comes solely from the hearsay testimony of witnesses repeating what the defendants had told them, there being no other evidence of these incidents. Such hearsay evidence has no probative value even in the absence of objection and may not be used to establish factual circumstances. Collins v. State, 146 Ga.App. 867(1), 247 S.E.2d 602. The only hypothesis remaining is that the parents inflicted the injuries.

"To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Code Ann. § 38-109.

"Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law." Harris v. State, 236 Ga. 242(1), 245, 223 S.E.2d 643.

We find the evidence sufficient to authorize a rational jury to find defendants guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

3. It is contended that the trial court erred in permitting in evidence photographs of the infant taken about seven hours after death because they were not an accurate portrayal of its condition at the time of death due to post mortem lividity.

"The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused. (Cits.)" Grasham v. Sou. R. Co., 111 Ga.App. 158(6), 161, 141 S.E.2d 189. There being testimony that the photographs accurately depicted the injuries to the body despite the...