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Jones v. State

Supreme Court of Georgia

May 1, 2017

JONES
v.
THE STATE.

          PETERSON, Justice.

         Following a jury trial, Willie Clifford Jones was convicted of felony murder for the death of his four-year-old daughter, Ty'Asia Michelle Phillips.[1]He appeals on the sole ground that he was convicted by general verdict on a count of felony murder that contained two predicates, one of which, he claims, there was insufficient evidence to support. Because we find that there was sufficient evidence to convict Jones of felony murder based on one of the two charged predicates for felony murder, and that this is enough to sustain his conviction, we affirm.

         Viewed in the light most favorable to the verdict, the trial evidence showed the following:

         When Ty'Asia was four years old, Ty'Asia's mother, Chelsea Phillips, made arrangements for Ty'Asia to stay with Jones beginning in late February 2012. Phillips and her mother testified that the child did not have any injuries of concern when they left her with Jones. Emerson Cohen testified that he visited Jones's trailer on multiple occasions during Ty'Asia's visit, and, although the child reported that her father had spanked her, Cohen did not observe the girl to have any bruising and saw her running around playing with other children as late as the evening of March 10. Clerks at a nearby convenience store also testified that they saw the girl on the afternoon of March 9 and the morning of March 11 and did not observe her to have any disabilities or injuries.

         Jones called Cohen the evening of Sunday, March 11, crying and saying that he could not get Ty'Asia to wake up. Cohen urged Jones to call 911. A cousin of Jones, Nolan Hogues, testified that he came by to visit that night and found Jones sitting in the living room, crying, with his daughter in his lap. Jones reported that his daughter would not wake up. Hogues testified that the child was breathing but unresponsive and limp when he picked her up. Hogues testified that he directed Jones to call an ambulance, and Jones complied.

         Paramedics arrived and found Ty'Asia unresponsive. While in the paramedics' care, Ty'Asia's respiratory rate started to decline, and the paramedics had to breathe for her manually through a bag mask valve. She also drew up into a fetal position before arching her back and pointing her toes down, which a paramedic testified was a sign of head trauma. Law enforcement who responded to the hospital where Ty'Asia was taken testified that the girl had marks and bruises all over her body, including her head, and including what one investigator described as an apparent older burn injury in a pattern like a railroad track on her back.

         At Jones's trailer, law enforcement found a portable heater with a front panel that had a pattern consistent with the marks found on Ty'Asia's back. They found window blinds that were missing the rod used to open and close the blinds, and found components of the rod at various locations around the house. They also found a broken belt in a washing machine and pieces of cord.

         Investigator Mark Dobbins interviewed Jones at the hospital. Initially, Jones denied ever spanking or whipping Ty'Asia. Jones told Dobbins that Ty'Asia had simply collapsed and stopped responding after a day of playing outside, which Jones later admitted to Dobbins was false. Jones ultimately told Dobbins that he hit Ty'Asia with a "blind twister" and his shoe and that she might have been hit in the head accidentally by the blind twister or the shoe because she moved around. Jones also said she might have hit her head on a shelf while he was attempting to spank her. Jones said Ty'Asia fell on the heater when they were in an altercation.

         Ty'Asia died on March 18, 2012. The GBI's medical examiner testified that Ty'Asia's death was caused by traumatic head injuries caused by another person or persons, with other injuries possibly contributing to a minor degree. He testified that the head injuries Ty'Asia suffered would not have resulted from roughhousing with other children. He testified that the sort of head injury she suffered would have immediately rendered her unconscious or nearly so and that the head injury would have been inflicted just before she was hospitalized.

         Jones testified at trial that on the weekend in question, he played video games and smoked marijuana while Ty'Asia played with other children outside. Jones denied hitting Ty'Asia and said that he falsely told Dobbins that he had because he was tired and overwhelmed and wanted Dobbins to go away. On cross-examination, Jones said that he had "whooped" Ty'Asia and "kind of" had lied when he testified that he didn't whip her.

         The jury acquitted Jones of malice murder and returned a guilty verdict on a single count of felony murder. The indictment charged Jones with felony murder based on two predicates, that he committed cruelty to children in the first degree, and that he committed cruelty to children in the second degree. Specifically, the sole count of felony murder charged that Jones caused Ty'Asia's death "by maliciously and with criminal negligence" causing the child "cruel and excessive mental and physical pain" by beating her and by throwing her into a piece of furniture, onto the floor and into a space heater. The jury was instructed on each of the underlying offenses. The verdict form did not specify which predicate felony was the basis for the finding of guilt on the felony murder count.

         1. Jones argues on appeal that he is entitled to a new trial because he was convicted by general verdict on a count of felony murder predicated on cruelty to children in the first degree and cruelty to children in the second degree, and there was insufficient evidence to support the predicate of cruelty to children in the second degree. Without deciding whether there was sufficient evidence to support the second degree child cruelty predicate, we conclude that he would not be entitled to a new trial even if he were right that there was sufficient evidence to support a conviction based on only one of the two predicate offenses.

         Jones does not dispute that there was sufficient evidence to support a conclusion that he committed the crime of first degree cruelty to children, which, as that predicate was charged in the indictment, required a showing of malice. See OCGA § 16-5-70 (b). Instead, he contends that the evidence was insufficient to support a conclusion that he committed the crime of second degree cruelty to children, which requires a mens rea of criminal negligence. See OCGA § 16-5-70 (c). He relies on two decisions by the Georgia Court of Appeals in which the court found a reckless conduct charge unwarranted because the evidence of child abuse established that the defendants' actions were intentional, not criminally negligent. See Glover v. State, 292 Ga.App. 22, 28-30 (5) (a) (663 S.E.2d 772) (2008); Allen v. State, 247 Ga.App. 10, 14-15 (3) (543 S.E.2d 45) (2000). Citing Thompson v. State, 271 Ga. 105 (519 S.E.2d 434) (1999), Jones argues that because the jury might have based its guilty verdict on the unproven predicate of second degree cruelty to children, the verdict must be set aside.

         In Thompson, we reversed a felony murder conviction after finding that the defendant's conviction for one of the three predicate offenses on which the felony murder charge was based must be set aside due to an improper jury instruction. Id. at 106-109 (1)-(2). Citing Stromberg v. California, 283 U.S. 359 (51 S.Ct. 532, 75 LE 1117) (1931), and several of our own subsequent decisions, we said reversal of the felony murder conviction was required "because the general verdict of guilty did not indicate which of the alternate theories the felony murder conviction was based upon[.]" Id. at 108-109 (2). In order ...


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