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Pittmon v. State

Court of Appeals of Georgia, Second Division

September 26, 2017

PITTMON
v.
THE STATE.

          MILLER, P. J., DOYLE and REESE, JJ.

          Doyle, Judge

         Following a jury trial, Eddye Pittmon was convicted of battery, [1] cruelty to children in the first degree, [2] and cruelty to children in the second degree.[3] She now appeals from the denial of her motion for new trial, contending that (1) the trial court erroneously prevented her from presenting evidence of a third party's guilt; (2) the trial court failed to sua sponte instruct the jury regarding evidence of prior difficulties; (3) she received ineffective assistance of counsel; and (4) the evidence was insufficient to support the verdict. For the reasons that follow, we affirm.

         Construed in favor of the verdict, [4] the evidence shows that in June 2014, Pittmon worked in the infant room of a daycare center. One morning, Meagan Seabolt dropped off her 18-month-old son Damon, and an early-morning staff person, Amanda Banks, took care of him before other staff arrived. While caring for Damon, Banks had occasion to change Damon's diaper, and she noticed no injuries, and he seemed "perfectly fine." When Pittmon arrived shortly after 8:00 a.m., Banks transferred Damon into Pittmon's care. Shortly after 10:00 a.m., while Banks was outside speaking with other teachers and getting a head count for lunch, Pittmon brought Damon outside to show the other teachers that she had discovered dried feces on his back that had not been properly cleaned. Banks apologized that she had not noticed it when she changed him earlier, and another worker took a photograph of Damon's body to document his condition because Pittmon was upset that his mother had brought him to the daycare dirty. At that time, neither Banks nor another employee noticed anything wrong with Damon other than his unclean condition.

         Banks returned to the kitchen, which was across the hall from the infant room, where Pittmon brought Damon to bathe him. Banks heard Damon crying while he was being cleaned, but she did not find it out of the ordinary.

         A few minutes later, around 10:15 or 10:30 a.m., another teacher, Montana Girard, arrived to begin her shift in the two-year-old classroom, and Pittmon called her over and asked her to look at Damon's leg. Girard noticed that Damon had just been crying and looked "scared, " "worried, " and "frightened." The skin on Damon's leg "pretty much looked like fresh sunburn with a little blister." Girard, who was junior to Pittmon, found it unusual that Pittmon would call her over to ask her opinion, and she advised Pittmon to call Damon's mother. When Girard told Pittmon that Damon's leg had been burned, Pittmon replied, "no, it is not, don't say that." By the end of the day, according to Girard, Damon's leg had worsened: "[It] was awful. It looked like a third[-]degree burn. It had blisters. It was just really awful."

         At approximately 4:15 p.m., another mother and former Army HazMat team member arrived to retrieve her children after work. Some teachers asked her to look at Damon's leg, wondering if it could be a chemical burn. She told them that it was a water burn because it had blistered up, and she took some pictures of it. Pittmon had covered Damon's leg in lotion or ointment, and she maintained the position that it was a bite or rash.

         At approximately 5:30 p.m., Banks encountered Damon again as she was getting ready for closing time. She noticed that Damon's left leg, from his knee to his ankle, "was red, " despite being "fine that morning." Another teacher saw Damon's leg around that time and said it "looked bad, " like a burn, and took three pictures to document it. Pittmon insisted that Damon was having a reaction to a bug bite.

         Around 6:00 p.m., Damon's mother, Seabolt, arrived to pick him up. Pittmon told her that she had taken him outside at 5:00 p.m., and he had been bitten by a bug, so she covered it in lotion. When Seabolt arrived home with Damon, she noticed that he was favoring his leg, and the lotion had dispersed so that she was able to see that "it was something serious." She immediately took Damon to an urgent care clinic, where she was told that it was not a bug bite but a severe liquid burn and that she should take him to the emergency room.

         At the emergency room, Damon was diagnosed with second and third-degree burns to his left leg and to small portions of his abdomen, scrotum, and penis. Damon was treated for the burns and released, but he later developed a fever, so after Seabolt returned him to the emergency room, doctors sent him to an intensive burn unit, where he spent time in the intensive care unit and underwent cadaver skin surgery. Over the next 11 months, Damon was successfully treated for his burns, including a second surgery involving a graft of his own skin.

         Based on these events, Pittmon was charged with two counts of aggravated battery, first degree cruelty to children for burning Damon, and second degree cruelty to children for failing to seek medical care. Following a trial, a jury returned a guilty verdict for two counts of battery (as lesser counts included in the aggravated battery counts) and both cruelty to children counts.[5] Pittmon moved for a new trial, and following an evidentiary hearing, the trial court denied the motion, giving rise to this appeal.

         1. Pittmon argues that the trial court erroneously excluded evidence supporting her theory that Damon's burns occurred in the mother's care before she dropped him off at the daycare center. "We review a trial court's evidentiary ruling under an abuse of discretion standard."[6] We discern no such abuse here.

         At trial, Pittmon's defense was that she never burned the child, and he must have been burned earlier in the morning while still at home with his mother. To support this theory, Pittmon elicited cross-examination testimony from the mother that Damon had pooped in his diaper that morning, and she had cleaned him just prior to dropping him off at the daycare. She apparently missed the feces on his back, which remained after he arrived that morning. Pittmon was also able to elicit testimony that sometimes Damon was dropped off dirty, and he had head lice.

         To further challenge the mother's care in parenting Damon that morning, Pittmon sought to introduce evidence that: another child, Damon's sibling, was burned on another occasion by spilled hot chocolate while in the mother's care; another sibling had exhibited bruises and burns; and the mother had a history with the Department of Family and Children Services. The trial court ruled that evidence of the mother's poor parenting of her other children was not admissible to show that the mother burned Damon in this case simply because she was a bad parent. Pittmon now argues that this ruling prevented her from confronting witnesses and present critical exculpatory evidence of another party's guilt.

         As pointed out by the State, under OCGA § 24-4-404 (a): "Evidence of a person's character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, " subject to certain exceptions not applicable here.[7] Based on Pittmon's argument that the mother's prior bad parenting supports Pittmon's theory that the mother burned Damon in this case, the evidence at issue could not be used by the jury to show that the mother burned Damon without relying on the impermissible inference that the mother's bad parenting of other children made it more likely that she burned Damon in this case.[8]This is not a permissible use of evidence under OCGA § 24-4-404 (a), and the trial court did not abuse its discretion by excluding the evidence supporting such an inference.[9]

         Unlike cases in which the defense was entirely precluded from introducing evidence of a third-party's guilt, [10] the trial court did allow Pittmon to make relevant challenges to the mother's parenting and conduct with respect to Damon. As noted above, Pittmon elicited testimony that Damon was occasionally dirty and had lice. Specific to the day in question, Pittmon was allowed to cross-examine the mother about her careless bathing of Damon or whether she had spilled any hot liquids on Damon that morning. And Pittmon was allowed to elicit expert testimony that Damon's burns would not have resulted in blisters until hours after the burning event. All of this supported Pittmon's theory of third-party guilt; accordingly, based on the record before us, we discern no reversible error.

         2. Pittmon next argues that the trial court erred by failing to sua sponte instruct the jury regarding the proper consideration of prior difficulty evidence. At trial, there was testimony from Pittmon's co-workers that Pittmon had treated Damon harshly on prior occasions by hitting him with a ruler, pen, and hairbrush; being "mean" to Damon; and restricting his play area. Pittmon contends that this evidence required an immediate instruction by the trial court, even absent a request from her counsel, that such evidence could only be considered for the proper purpose of demonstrating the relationship between the defendant and the victim.[11] Nevertheless, Pittmon's trial counsel did not object on this ground nor request such an instruction or other remedy at the time this testimony was elicited, and "[i]n the absence of a [timely] request, it cannot be said that the trial court erred in failing to give contemporaneous instructions with regard to the [S]tate's evidence of prior difficulties."[12] Further, the trial court did correctly instruct the jury at the close of the evidence as to the proper use of such evidence. Accordingly, we discern no reversible error.[13]

         3. Pittmon also argues that her trial counsel rendered ineffective assistance. We disagree.

         Under Strickland v. Washington, [14] to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel's ...


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