February 16, 2015
Cruelty to children. Paulding Superior Court. Before Judge Vinson.
Andrew S. Fleischman, for appellant.
Dick Donovan, District Attorney, Thomas D. Lyles, Assistant District Attorney, for appellee.
BENHAM, Justice. All the Justices concur.
Appellant Marta Corvi appeals her convictions for cruelty to children in the second degree and for reckless conduct related to the drowning deaths of Sophia Juarez and Mia Penoyer. On appeal, [296 Ga. 558] appellant challenges the trial court's failure to quash the indictment as being void for vagueness as applied and challenges the sufficiency of the evidence. For the reasons set forth herein, we reverse.
The evidence in the light most favorable to the verdict shows that in April 2012, appellant came to live with Eduardo and Saundra Juarez and their three children. Appellant and the Juarezes had an informal arrangement whereby appellant would look after the Juarez children, in particular five-year-old Sophia, in exchange for room and board. Appellant also cooked and did some cleaning.
On June 9, 2012, appellant's five-year-old granddaughter, Mia, came over to spend the night and play with Sophia. Because the next day was rainy, appellant told the girls they could not go swimming in the backyard pool and so the girls played inside the house. At around noon, Mr. and Mrs. Juarez and their younger son left the house to go to the grocery store. Appellant was left in charge of the two girls and the Juarez's older son, who was thirteen at the time. When the three Juarezes left the house, appellant began
cleaning the hardwood floors on the main level of the tri-level house. While cleaning, the girls were playing in Sophia's room on the top level of the house and the older Juarez son was in his room on the main level watching television with head phones on and napping. At trial, it was established that appellant had diabetes and took medicine to control her blood sugar. Appellant told authorities that while cleaning she became dizzy due to low blood sugar and so she went downstairs to take her medication. The older son testified that appellant told him that she was going to the basement to take her medicine and would be right back. After taking her medicine, appellant made a personal phone call at around 12:55 p.m. When she first got on the phone, appellant verbally confirmed that the two girls were still upstairs playing in Sophia's room. Evidence showed that the phone call lasted approximately 45 minutes. When the three Juarezes returned from shopping, they saw appellant coming out of the front door of the house, [296 Ga. 559] talking on the phone and holding a soda. Mr. Juarez asked where Sophia was, and appellant replied that the girls were upstairs in Sophia's room; however, when the family looked, the girls were not anywhere inside the house. The family eventually found the girls in the backyard pool. The girls were not breathing, felt cold to the touch, and were blue in color. The family called 911 at approximately 1:41 p.m. Despite the efforts of the family, first responders, and hospital personnel, the children could not be revived.
1. Appellant alleges the trial court erred when it failed to grant her motion for a directed verdict on the ground that the evidence was insufficient. In regard to the charges of cruelty to children in the second degree, the indictment alleged that appellant " did cause [the children] cruel and excessive physical pain by failing to reasonably supervise said [children]."  As to the counts of reckless conduct, the indictment alleged appellant:
unlawfully did endanger the bodily safety of [the children] by consciously disregarding the substantial and unjustifiable risk that her omission and failure to reasonably supervise [the children] ... would cause harm to and endanger the safety of said [children] and the disregard constituted a gross deviation of the standard of care which a reasonable person would exercise. ...
Both cruelty to children in the second degree and reckless conduct are crimes involving criminal negligence. See Kain v. State, 287 Ga.App. 45 (1) (650 S.E.2d 749) (2007). " Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby." OCGA § 16-2-1 (b). In this case, the State did not meet its burden of showing appellant's conduct while the children were under her supervision was so willful, wanton, or reckless as to constitute criminal negligence supporting the crimes alleged in the indictment.
[296 Ga. 560] Based on the evidence, it appears the girls left the upstairs bedroom and went to the pool at some point while appellant was on the phone. The lead investigator in this case testified that he decided to swear out a warrant for appellant's arrest when he learned she was on the phone for 45 minutes. Yet there was no evidence showing that the length of time appellant was on her phone
call would have made a difference in the children's deaths. The only time frame established for the drowning to have occurred was between 12:55 p.m. when appellant initiated her phone call and 1:41 p.m. when the family called 911. It was unknown when the girls left the upstairs bedroom, and it was unknown how long they had been in the pool when found. An expert testified that a child could drown in as little as four to six minutes once submerged. Thus, it cannot be said that taking a 45-minute phone call in itself constituted a failure to reasonably supervise the children.
Also, this is not a case where a caretaker left small children unattended in a pool or a similar objectively dangerous circumstance. Cf. Baker v. State, 280 Ga. 822 (633 S.E.2d 541) (2006) (man found guilty of reckless conduct where he left a three-year-old and a nine-month-old inside the home alone on the second floor and the infant was in his walker six feet away from a downward flight of stairs that was not barricaded for safety). Here, appellant never left the children alone in the house, and she confirmed that they were in Sophia's room playing when she initiated her phone call. Appellant had told the girls they could not go swimming, and there was no showing that the girls had a propensity to disobey appellant or other adults. While Sophia was described as a good swimmer, no evidence was presented that she would swim in her family's pool unsupervised or had a propensity to do so. Also, no evidence was presented that appellant routinely failed to supervise Mia, Sophia, or any other child in her care. Cf. Kain v. State, supra, 287 Ga.App. at 47-48 (evidence sufficient to show criminal negligence constituting reckless conduct and cruelty to children in the second degree where woman regularly allowed her small children to roam outside alone, where woman regularly left them home alone, and where the children drowned one day while outside unattended); Reyes v. State, 242 Ga.App. 170 (1) (529 S.E.2d 192) (2000) (evidence sufficient to show woman who routinely allowed her three-year-old to traverse a dangerous street while unattended was guilty of criminal negligence constituting reckless conduct when the child was found unconscious and mauled by an animal). Cf. Johnson v. State, 292 Ga. 856, 857-858 (1) (742 [296 Ga. 561] S.E.2d 460) (2013) (evidence sufficient to show woman guilty of criminal negligence constituting cruelty to a child in the second degree where child died of ingesting prescription methadone, where it was shown the child had fallen ill for several hours before the woman sought medical attention, and where it was shown that the woman had previously given the child crushed prescription Xanax in his milk).
The factual circumstances of this case, even when viewed in a light most favorable to the verdict, do not show appellant's conduct constituted criminal negligence that would sustain charges of cruelty to children in the second degree and reckless conduct. The evidence was insufficient to convict, and the trial court erred when it failed to grant appellant's motion for a directed verdict and when it rejected the claim in its order denying appellant's motion for new trial.
2. Because we find the evidence was insufficient to convict appellant for the crimes for which she was charged, we need not reach the void for vagueness issue.
Judgment reversed. All the Justices concur.