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Busby v. State

Court of Appeals of Georgia

June 29, 2015


Aggravated battery, etc. Hall Superior Court. Before Judge Deal.

Tyler R. Conklin, for appellant.

Lee Darragh, District Attorney, Hugh M. Hamilton, Assistant District Attorney, for appellee.

BARNES, Presiding Judge. McMillian, J., concurs. Ray, J., concurs in Divisions 1, 2 (a) and 2 (b) and in the judgment.


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Barnes, Presiding Judge.

A jury convicted Josh Busby of two counts of aggravated battery, aggravated assault, and cruelty to children in the first degree. Following the denial of his motion for new trial, he appeals, arguing that the trial court erred in failing to merge the two aggravated [332 Ga.App. 647] battery charges, and then in failing to merge the aggravated assault charge into the merged battery charges. For the reasons that follow, we affirm.

" On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Punctuation omitted.) Hernandez v. State, 317 Ga.App. 845 (733 S.E.2d 30) (2012). So viewed, the evidence shows that when Busby and his girlfriend brought their 11-week-old daughter to the emergency room on Saturday, February 9, 2013, the infant had extensive bruises all over her body, her skull was fractured on both sides, and she was having seizures. A physician who was qualified as an expert in assessing abuse and intentional injury to children testified that the baby had suffered a " massive head injury" and her brain was bruised, bleeding, and swollen. While the fractures would heal, the injury to the brain caused cells to die off, and the physician expected long-term deficits, given all of the baby's injuries, although she could

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not be tested cognitively until she grew older.

The skull fractures were caused by two separate impacts or were a " stomping injury," and bruising revealed that the baby had been hit on the head at least seven times. The physician thought the baby had been " beaten badly" and could think of no accidental force that would account for all of her injuries. It had required " a lot" of force to cause the skull fractures, which could not have been caused by falling off someone's lap, out of a bassinet, or even down several stairs.

A radiologist who saw the baby at the ER testified for the defense that one of the two fractures in the skull showed some healing and thus had occurred four to seven days previously, but agreed that the injuries could not have been caused by a three-foot fall.

Other evidence established that the baby had been born prematurely and remained in the hospital for about two months. After she was released, Busby, the baby, and the baby's mother lived with the maternal grandparents for two or three weeks, and on February 1, 2013, they moved to a rental RV or travel trailer that was parked in their landlady's back yard. The maternal grandmother testified that before the February 1 move, the baby had no injuries, bruises, marks, or cuts, but when she saw the baby a few days later, the baby had a " blood bruise" around her eye, that was " real dark red." Busby said the baby's 18-month-old brother had " got ahold to her," and that he had given the boy a whipping for it. The mother's sister testified that when she went to pick up the baby from the back room later that same day, she had a black eye. When the sister asked what happened, the [332 Ga.App. 648] only explanation she got was from Busby, who said, " We left [the baby] back there, [because] we didn't want people to think we were abusing our kids."

The baby's mother was indicted on the same charges as Busby but pled guilty to two counts of cruelty to children in the second degree, one for failing to seek prompt medical attention and another for allowing the child to develop severe diaper rash. She testified that she had been taking narcotic medications for chronic health issues and that when she became pregnant unexpectedly her obstetrician sent her to a methadone clinic for treatment. After the baby was born, she testified, she was still in a lot of pain, and Busby interacted more with the children than she did, although they argued daily. She woke to the baby crying a few days after they moved to the travel trailer, and found Busby holding the baby. Busby said, " Look what he done," talking about their ...

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