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Hillsman v. State

Court of Appeals of Georgia, Fourth Division

June 5, 2017

HILLSMAN
v.
THE STATE.

          DILLARD, P. J., RAY and SELF, JJ.

          Dillard, Presiding Judge.

         Following trial, a jury convicted LeAnthony Hillsman on one count each of cruelty to children in the first degree, aggravated battery, and aggravated assault. Hillsman appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting his convictions and arguing that the trial court erred in denying his claims of ineffective assistance of counsel and in failing to conduct a hearing to determine whether he could represent himself. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the record shows that in 2012, Hillsman lived with five-month-old J. M.'s mother (with whom Hillsman was romantically involved), J. M. (whose father was not Hillsman), and Hillsman and the mother's three-year-old daughter. On February 5, 2012, the mother left for work just before 8:00 a.m., and Hillsman stayed home to babysit J. M. Later that afternoon, a neighbor heard J. M. crying excessively in a manner that she did not think was normal. As the crying continued, the neighbor considered calling the police. But a short time later, the neighbor heard a knock on her door and opened it to find Hillsman in a panic, claiming that J. M. was not breathing and that he had no vehicle nor a telephone to call an ambulance. After quickly determining that J. M. was, in fact, not breathing, the neighbor agreed to drive J. M. and Hillsman to the hospital. While en route to the hospital, Hillsman attempted to administer CPR to J. M., but the neighbor informed him that he was not administering it properly for a child of J. M.'s size. Upon reaching the local hospital, emergency-room physicians determined that J. M.'s injuries were too severe to be treated there. Consequently, J. M. was immediately flown to the Medical Center of Central Georgia in Macon. There, physicians examined J. M. and determined that he had suffered subdural hemorrhaging, retinal hemorrhaging, bruising to his sternum, and a torn frenulum of the tongue, all of which were consistent with the child having been violently shaken. In addition, J. M. had also suffered several puncture wounds to his feet and fractures to several ribs, and had to be placed on a ventilator.

         Given the nature and severity of J. M.'s injuries, hospital staff notified local law enforcement, and a sheriff's department investigator interviewed Hillsman at the hospital. During that interview, Hillsman claimed that J. M. must have suffered his injuries by falling off the sofa after he placed the child there. Later that same day, the investigator interviewed Hillsman at his home and confronted him with the fact that the physician who treated J. M. asserted that a short fall from a sofa could not have possibly caused the child's injuries. At that point, Hillsman admitted that J. M. did not fall from the sofa but, instead, he claimed that the injuries may have occurred when he put the child down on the sofa too hard. Then, based on this change in Hillsman's account and the physician's opinion regarding the child's injuries, the investigator arrested Hillsman and seized a small kitchen knife that he suspected caused the puncture wounds to J. M.'s feet.

         Following Hillsman's arrest, investigators conducted a third interview. And during that interview, Hillsman claimed that five-month-old J. M. had acquired splinters in his feet while Hillsman helped him practice walking on the wooden front porch and that he had then used the kitchen knife to extract the splinters. Additionally, Hillsman stated that he may have accidentally injured J. M. while trying to perform CPR on the child after he had stopped breathing. Nevertheless, shortly thereafter, the State charged Hillsman, via indictment, with one count each of cruelty to children in the first degree, aggravated battery, and aggravated assault.

         The case then proceeded to trial, during which the two sheriff's department investigators and the neighbor who drove Hillsman and J. M. to the hospital testified. J. M.'s mother also testified and stated that her son, who was healthy when she left for work on the day in question, now suffered seizures and had to be fed with a tube. In addition, the physician who treated J. M. testified that the child's injuries could not have possibly been caused by a short fall from a sofa but were instead consistent with him having been violently shaken. The physician further testified that the puncture wounds to J. M.'s feet appeared to be in a pattern and, thus, in contrast to the randomness in which one normally suffers splinters. Finally, the physician testified that J. M.'s brain injury required him to be fed with a tube and that he would need significant rehabilitation in order to function normally.

         After the State rested, Hillsman testified in his own defense and claimed, again, that his attempt to remove splinters from J. M.'s feet caused the puncture wounds and that his CPR attempts possibly caused the bruising to the child's sternum and his fractured ribs. Hillsman also claimed that J. M.'s shaking injuries may have occurred when he frantically ran to the neighbor's house while carrying the child. But at the conclusion of the trial, the jury found Hillsman guilty on all three counts of the indictment.

         Subsequently, Hillsman obtained new counsel and filed a motion for new trial, in which he argued, inter alia, that his trial counsel rendered ineffective assistance. But after conducting a hearing on Hillsman's motion, during which his trial counsel testified regarding his representation, the trial court denied it. This appeal follows.

         At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.[2] And in evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only determine whether "a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."[3] Accordingly, the jury's verdict will be upheld so long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State's case[.]"[4]With these guiding principles in mind, we turn first to Hillsman's specific challenges in this regard.

         1. Hillsman first contends that the evidence was insufficient to support his convictions on the charges of cruelty to children in the first degree and aggravated battery. Specifically, he argues that the State failed to prove that he acted with malice with regard to either offense. We disagree.

         Under OCGA § 16-5-70 (b), "[a] person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain." And for purposes of this Code section, malice in the legal sense "imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result."[5] Additionally, OCGA § 16-5-24 (a) provides that "[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof." And under Georgia law, a person acts maliciously within the meaning of the aggravated-battery statute when "he acts intentionally and without justification or serious provocation."[6] Importantly, intent is a question for the jury, which is "authorized to consider all other circumstances connected with the act at issue as well as the defendant's words, conduct and demeanor."[7]

         In this matter, Count 1 of the indictment charged Hillsman with cruelty to children in the first degree by alleging that he "did unlawfully and maliciously cause [J. M.], a child under the age of eighteen (18) years, cruel and excessive pain by shaking and striking said [J. M.] . . . ." Count 2 of the indictment charged Hillsman with aggravated battery by alleging that he "did unlawfully and maliciously cause bodily harm to [J. M.] by rendering said [J. M.'s] brain, a member of said person's body useless. . . ." And as previously discussed, the State presented evidence that J. M. suffered serious injuries from being shaken and that his brain function was impaired as a result of those injuries. Given these particular circumstances, despite Hillsman's claim that J. M.'s injuries were the result of running while carrying the child and improper CPR, the evidence was sufficient to prove that Hillsman acted maliciously and to authorize the jury to find him guilty beyond a reasonable doubt of cruelty to children in the first degree[8] and aggravated battery.[9]

         2. Hillsman also contends that the evidence was insufficient to support his conviction on the charge of aggravated assault, arguing that the State failed to show that the kitchen knife was a deadly weapon. Again, we disagree.

          Under OCGA § 16-5-21 (a) (2), aggravated assault is committed when a person "assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]" And when a criminal ...


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