Cruelty to children. Clayton Superior Court. Before Judge Carter.
Stanley W. Schoolcraft III, for appellant.
Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.
MCMILLIAN, Judge. Barnes, P. J., and Ray, J., concur.
Following a jury trial in September 2013, Emmanuel Philemon Freeman was convicted of two counts of cruelty to children in the second degree and two counts of cruelty to children in the first degree and was sentenced to twenty years, seven to serve. Freeman timely filed a motion for new trial, as amended, which the trial court denied. On appeal, Freeman challenges the sufficiency of the evidence as to each conviction and further asserts that the trial court erred in
denying his motion for a mistrial and that the State failed to prove venue on several counts. Finding no error, we affirm.
Viewed in the light most favorable to the jury's verdict, the evidence shows that E. F. was born to Freeman and Averielle Outler [333 Ga.App. 7] on March 25, 2009. At the time of his one-month checkup on May 6, 2009, his pediatrician, Iyer Rajamani, found that he was in good health, with normal eyesight and a normal head circumference of 40 cm. When Dr. Rajamani next examined E. F., on July 9, 2009 during an appointment for routine vaccinations, she immediately saw that his head was " really big" and measured the circumference as 49 cm. Because the growth of E. F.'s head was " definitely unusual" and he had a " sunset appearance," which is caused by excess cerebrospinal fluid pushing the eyeballs downward, she instructed Freeman to take E. F. straight to a children's hospital to determine the cause of the swelling.
At the hospital, doctors confirmed that E. F. had excess fluid on his brain and performed surgery to insert a shunt to relieve the pressure on his brain. Dr. Stephen Messner, a pediatrician and expert in child abuse evaluations, was called to evaluate E. F. As part of the work-up, the hospital completed a skeletal survey of E. F., which included an x-ray of all of his bones. The x-rays showed a healing fracture of four ribs on E. F.'s left side, a healing fracture of his left femur, and a healing fracture of his right tibia. Doctors also concluded, based on MRI results, that E. F.'s brain had atrophied, which would result in permanent brain damage, and that his optic nerves and retina were damaged. Dr. Messner found no evidence of infection that could have caused any of E. F.'s injuries, and both Freeman and Outler indicated to him that they were not aware of any accidents that could have caused the injuries.
Based on the constellation of injuries, Dr. Messner concluded that E. F.'s injuries were caused by physical abuse. As a result, E. F.'s older sister, O. F., who was 14 months old at the time, was also evaluated. X-rays revealed that O. F. also had fractures of two ribs on her left side that were in the healing stage. Detective James Watson of the Clayton County Police Department was called to Scottish Rite Hospital on July 17, 2009, where he spoke with Outler, who told him that she had noticed E. F.'s head swelling approximately three weeks before the July 9 appointment with Dr. Rajamani. She, her husband, and their two children had been living at an apartment in Clayton County since April 2009 and she could think of no accidents or illnesses that could have caused E. F.'s injuries. She also confirmed that she and her husband were their only caretakers and that they did not use babysitters or family members to assist them in caring for the children.
[333 Ga.App. 8] Freeman also spoke with Detective Watson and told him that he had also noticed the swelling of E. F.'s head sometime in June and that he and Outler were the only individuals caring for their children. Freeman denied any history of accident or trauma that would explain E. F.'s injuries but admitted that he " plays too rough" with his children and " doesn't know his own strength." Based on Watson's interviews with doctors and the defendants, E. F. and O. F. were placed in protective custody. Freeman and Outler were charged with four counts of first degree cruelty to children (Counts IV, VI, VIII, and X), two counts of second degree cruelty to children (Counts I and II), and four counts of aggravated battery (Counts III, V, VII, and IX) stemming from their abuse of E. F. and O. F. and their subsequent failure to seek medical attention for their children.
At trial, Dr. Messner explained that the children's rib fractures were not the result of normal handling and that it would require " significant force" to cause them to crack, particularly since infants' bones are typically more pliable than those of adults. In addition, he opined that E. F.'s injuries were most likely caused ...