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Wimbush v. State

Court of Appeals of Georgia, Second Division

March 8, 2018


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

          Reese, Judge.

         A Gwinnett County jury found Therian Wimbush[1] guilty beyond a reasonable doubt of committing three counts of cruelty to children in the second degree[2] against R. W. and I. W., two of her ten children. She appeals, proceeding pro se, from the judgment of conviction, and raises a number of alleged errors. For the reasons set forth, infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [3] the record reveals the following material facts.

         R. W.

         R. W. is the eldest of ten children of Recardo Wimbush and the Appellant, and was sixteen years old at the time of the Appellant's trial in January 2017. R. W. initially, until sometime in 2012 when he was twelve years old, slept with his nine siblings in nine beds in the same room. When he was 12 years old, he began sleeping on a mat in the exercise room in the basement because "[he] had done something wrong, but [he did not] remember what it was." Once R. W. started sleeping in the basement, he was not permitted to play with his siblings or go upstairs and interact with them. He testified that, sometime later, his parents wanted to use the exercise room and "they [ ] cleaned out the closet that was next to it so [he] could sleep in there." Soon after moving into the closet, R. W.'s sleeping mat was replaced by his bed. To relieve boredom while everyone was asleep and without his parents' permission, R. W. went upstairs one night and took a DVD player, hiding it in the box spring of his bed. R. W. also took food from upstairs. When his parents found the DVD player, R. W. received a spanking.

         Subsequently, on another occasion, R. W. went upstairs without his parents' permission, but was caught by his father and sent back to the basement. The next night, R. W. took a sleeping bag and ran away from home, because he thought he would receive a spanking for having gone back upstairs. R. W. testified that, once he left his home, "[he did not] have any plans" and walked for about 30 to 45 minutes.

         On August 22, 2012, an officer with the Gwinnett County Police Department responded to a call about a person walking down a road in Gwinnett County. Upon arrival, the officer encountered a youth, later identified as 12-year-old R. W., carrying a blue sleeping bag and walking down the road. When the officer asked for his name, R. W. responded, "I don't know." The officer testified that R. W. explained that he came from an orphanage, and was "living off of water and food from passerbyers." The police officer asked R. W. his name again and R. W. responded with three separate names and two dates of birth. The officer then placed R. W. into custody for providing false information. After being placed into the patrol vehicle, R. W. properly identified himself to the police officer and provided his date of birth and his mother's phone number. The Appellant arrived at the scene and completed a juvenile complaint form, which acknowledged that she was assuming custody of R. W. and was aware of a court date in Juvenile Court. The police officer testified that he did not inquire about R. W.'s home life, and neither the Appellant nor R. W. discussed it.

         A couple of months later, and without R. W.'s prior knowledge, a lock was placed on the outside of the closet door so that he could not leave the closet. No one spoke to R. W. about why the lock was there or how long it would remain. Although there was a window in the closet, R. W. did not have permission from his parents to open it. There were no lights or bathroom in the closet, and one of R. W.'s parents brought him food once or twice a day. R. W. did not see or play with his siblings, and there were no books, toys, or games in the closet. When his bed sheets became moldy, they were removed without being replaced. R. W. did not exercise in the closet, and spent his time lying on his bed, listening to his "siblings running around and screaming and playing and having fun." When R. W. scratched some of the paint off of the walls to relieve boredom, the Appellant became "upset."

         R. W. remained in the closet for "about two years, " and during that time, he wore "[a] tank top and underwear." He wore the same clothes the entire time and did not bathe until he went to Juvenile Court. Once R. W. was released from the closet, he stated that his legs felt weak and he experienced pain when he tried to walk, play, or climb up stairs.

         On June 15, 2014, a Department of Family and Children Services ("DFCS") representative visited the Appellant's home in Gwinnett County in response to a report received on the "child abuse hotline that a child was locked in a basement[.]" The next day, a DFCS case manager went to the Appellant's home. Upon arrival, the Appellant answered the door and told the case manager that she had been "expecting someone from the Department to follow up." The Appellant invited the case manager into the home, and the case manager spoke with Recardo Wimbush and the Appellant for about two hours. The case manager testified that, according to the couple's religious beliefs, "when someone commits a sin, they should be separated and they should have to pay restitution." The case manager stated that the Appellant told her that "[R. W.] was sent down to the basement to separate [him] from the family as a punishment for his behavior [ ]" and that R. W. had been in the basement "maybe [about] two years or 18 months." During that visit, the case manager did not visit with any of the children living there, but learned from the Appellant that R. W.

was sleeping in the basement, just sleeping in the basement, that was just his room. And then I think it was August of 2012 he ran away, and the police brought him back. And then he was more restricted to the basement. And [the Appellant] wasn't exactly sure, but the child said January of 2013 he took a DVD player and a book down to his room. When his mom found it, she put the lock on the room that he was in in the basement.

         According to the case manager, after the Appellant placed the lock on the door, R. W. was not permitted to "interact with his siblings[, ] he was not allowed to leave the basement[, h]e was just locked in that room."

         During a visit to the home on June 18, 2014, the case manager spoke to R. W. in his basement closet. She testified that the closet floor contained dirt and hair and the only furniture in the small room was a box spring and a "very dirty" twin mattress. Further, the mattress had a blanket but no sheets or pillows; the closet's window was covered with white paint; and there was no bulb in the light fixture. Also, the case manager saw a plastic bottle in a corner of the room that she thought contained urine. There were no lamps, books, exercise equipment, medicine, DVD players, or any "form of entertainment" in the room. The word "pride" was written on one of the room's walls with "other smaller words written around each letter."

         While the case manager spoke to R. W., he was very soft spoken with a "very flat affect." R. W. admitted to her that he took a DVD player and a book downstairs, and when his parents located the items, "they placed a lock on the door and he was not allowed to leave the basement area." R. W. also told the case manager that prior to the installation of the lock on his door, he lived in the basement area, but was able to travel upstairs at night after the family was asleep.

         The case manager saw R. W. with his parents the next day at a court appearance. He looked "groomed, " with his hair cut short, and according to R. W., he had bathed that day. After the court appearance, the case manager accompanied R. W. to the Gwinnett County Police Department for an interview and observed that R. W. paused at the front of the building, held onto the rail, and made an effort to "negotiate how to climb those five steps up into the building." R. W. complained to the case manager of pain in his legs, and she noticed that "he walked with a limp."

         The guardian ad litem appointed for all of the Wimbush children interviewed R. W. during the June 19, 2014 court appearance. R. W. told her that "he hadn't seen his siblings in a very long time, " since the placement of the lock on the closet door, and "besides leaving to come to Juvenile Court[, ] he hadn't been let out of the room[.]" During the interview, R. W. stated that one of his parents allowed him to leave the room to use the restroom maybe two or three times a day. If he needed to use the restroom outside of those times, R. W. relieved himself in a plastic jar in his room. R. W. could not see out of the closet's window and spent his time in the basement closet picking at "paint on the walls" and listening to what his family was doing in the home. She further testified that R. W. told her his parents had accused him of "inappropriately touch[ing] three of his siblings, " but that "[h]e did not appear to have any recollection of ever having done anything like that[.]" R. W. told the guardian ad litem that he stayed in the basement as punishment because "he did bad things, that he had taken the book and the DVD player and he lied." R. W. also told the guardian ad litem that he did not go to school and that his mother used to teach him, but she "stopped teaching him once the lock was placed on the bedroom door." In addition, he told her that he did not recall ever having seen a doctor.

         A pediatrician testified that she saw R. W. on July 18, 2014, for a medical examination and that the youth reported that "he had pain in his legs, knees, and ankles; that he felt tired pretty frequently [and] occasionally after walking for a while, he had a little bit of a limp." R. W. had a fungal rash on his abdomen and his back, and x-rays of R. W.'s legs, knees, and wrists showed osteopenia and growth crease lines. According to the pediatrician, osteopenia is defined as "increased bone destruction, decreased bone formation" that takes awhile to develop and is rare in juveniles, and that contributing factors are immobilization for a long period of` time and the inability to do "weight[-]bearing exercises[.]" R. W.'s general screening laboratory results showed that his Vitamin D level was "significantly low, " and the pediatrician testified that Vitamin D deficiency "can lead to easy fatigue."

         An expert in child psychiatry conducted a psychiatric forensic examination of R. W. in July 2015. R. W. told him that he lived in the basement for "about [a] year and a half" and in that room, "[t]here was practically nothing to do[, ] . . . he really didn't have any books or other things to entertain himself with." The child psychiatrist testified that R. W. was "pretty lonely" and felt "left out [, h]e could hear other members of the family a lot of the time and [R. W.] wanted to be part of it." R. W. expressed to the child psychiatrist a "longing to be with his family, which [R. W.] found quite painful." The psychiatrist testified that R. W. appeared to be "unclear" about why he was originally punished. R. W. underwent a psychosexual evaluation, and the results were "normal." The child psychiatrist testified that R. W. did not receive physical exercise while he was locked in the basement and was "really quite weak[ ]" upon his release, but he did not complain because he "just thought that would make things worse."

         I. W.

         The guardian ad litem met I. W. on June 26, 2014, when he was eight years old. During the interview, I. W. "could not recall having gone to a doctor." The guardian ad litem testified that she saw a mass roughly the "size of [her] fist" just above the child's waistline on the left side of his abdomen. I. W. "was very clear that both his parents and his siblings were aware that the mass was there." I. W. told the guardian ad litem that the mass "had been there for as long as he could remember, that it had gotten larger, " and that it "itched."

         A pediatric oncologist testified that he met I. W. in November 2014 after the child was referred to him for the abdominal mass. The oncologist diagnosed I. W.'s mass as a "giant cell fibroblastoma, " which is a rare tumor that grows "very slowly." He testified that I. W.'s tumor was the "most extensive giant cell fibroblastoma that [he had] ever seen present at this stage[ ]" and that removal of the tumor was "a very involved surgery or very involved process." The oncologist testified that I. W. told him that the tumor had been there "as long as he could remember." He testified that since November 2014, I. W. had received chemotherapy that had possible side effects of "prevent[ing] height" and causing skin rashes and nausea, and that I. W. underwent surgery to "remove visible masses from the abdominal wall[.]" According to the oncologist, however, "the surgery was ineffective in controlling [I. W.'s] tumor[.]" At the time of the Appellant's trial, in January 2017, I. W. was again receiving chemotherapy.

         I. W.'s paternal uncle testified that I. W. was living with him at the time of trial and that the child's medication "causes him to be nauseous. . . . [S]ometimes [it was] an all-[d]ay occurrence for [I. W.] that . . . drain[ed] him. He [was] not able to do things that he would normally want to do." The uncle testified that, prior to surgery, I. W. had been anxious, nervous, and apprehensive.

         At the conclusion of the State's case-in-chief, the trial court denied the Appellant's motion for a directed verdict. The jury found the Appellant not guilty of four counts of cruelty to children in the first degree, and found her guilty of three counts of cruelty to children in the second degree. The trial court sentenced her to serve twenty years in confinement followed by ten years on probation. The Appellant appeals from her convictions.

         Generally, on appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. [The] Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [4] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, [the Court] must uphold the jury's verdict.[5]

         The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes charged.[6] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         Before reaching the merits of the Appellant's contentions, however, we note that her brief does not contain proper citations to the record or transcripts, which are essential for our consideration of her enumerated errors.[7] Further, the Appellant failed to state the method by which each enumerated error was preserved for appellate review.[8] Pro se status does not relieve a party from the "obligation to comply with the substantive and procedural requirements of the law, including the rules of this Court."[9]

The rules of this court are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [the Appellant's] fails to do, are not merely an inconvenience or grounds for refusing to consider a party's contentions. Such briefs hinder this court in determining the substance and basis of an appellant's contentions both in fact and in law and may well prejudice an appellant's appeal regardless of the amount of leniency shown. [10]

         Nevertheless, we will address the arguments of the Appellant to the extent we are able to discern them from her brief.

         1. The Appellant contends that the trial court erred in denying her motion for directed verdict and that the evidence was insufficient to support her convictions on cruelty to children in the second degree. Specifically, she argues that the "record is void of any evidence that either child suffered any mental or physical pain or injury, nor that any such pain or injury" was caused by her. We disagree.

         Counts 3 and 4 charged the Appellant with committing child cruelty by "confining [R. W.] in a room for months without sufficient mental stimulation and social interaction" and "failing to provide physical exercise" for R. W. Count 7 charged the Appellant with committing child cruelty by "failing to seek medical care for [I. W.'s] abdominal skin cancer."

         Cruelty to children in the second degree, prohibited by OCGA § 16-5-70 (c), is committed when a person "with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain." Criminal negligence is defined as "an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby."[11]

         As to Count 3, the evidence showed that R. W. felt lonely and isolated from his siblings while he was locked away in a small closet in the basement for approximately two years, with only one or two daily visits from a parent. The closet had no lamp and only contained an uncovered mattress, a box spring, and a plastic jar used to store R. W.'s urine. The window in the room was covered, and R. W. was forbidden to open it, so the room had no natural light or fresh air. R. W. received little, if any, formal education, and he was unable to exercise or play while confined in the closet. He was not permitted to bathe and wore the same clothes for the two years during his confinement. There was testimony at trial that R. W.'s fingernails were long and jagged from peeling paint off of the closet walls.

         Regarding Count 4, several witnesses testified that R. W. complained of pain in his legs and of fatigue. R. W.'s treating pediatrician testified that R. W. suffered from osteopenia in his wrists, knees, and legs, a rare condition that was likely caused by his confinement to a small room, which prohibited him from playing, running, and exercising. She also testified that R. W. had "significantly low" levels of Vitamin D in his body, which can cause weakness and fatigue.

         Finally, as for Count 7, the evidence showed that I. W. had a cancerous tumor for a very long time and that his parents were aware of it, yet they failed to provide him with any medical treatment. When the tumor was finally diagnosed, it was so large that I. W. required surgery and at least two rounds of chemotherapy to treat it. I. W.'s paternal uncle testified that the chemotherapy made I. W. nauseous, which "drain[ed]" him and kept him from doing things he normally wanted to do.

         As noted above, it was up to the jury, not this Court, to determine whether there was sufficient evidence to find the Appellant guilty beyond a reasonable doubt of the crimes charged, and this Court will not interfere with that determination as long as it was supported by evidence at trial.[12] Given the record before us, including the testimony of the children, expert witnesses, and treating physicians, we find that the jury's guilty verdicts on Counts 3, 4, and 7 were supported by sufficient evidence, and it was not error for the trial court to deny the Appellant's motion for a directed verdict.[13]

         2. The Appellant argues that the trial court erred in denying her motions for discharge and acquittal pursuant to OCGA § 17-7-170 and her constitutional right to a speedy trial. We find no error.

         (a) The Appellant contends that the trial court erred by denying her motions for discharge and acquittal under OCGA § 17-7-170. The record shows that the Appellant originally filed a statutory speedy trial demand on October 27, 2014. On December 2, 2014, the trial court issued an order denying the Appellant's motion for failure to "comply with the service requirements" of OCGA § 17-7-170 (a)."[14] The Appellant argued in a January 2017 hearing that she properly served the motion upon the trial court judge. After the hearing, the trial court again denied her motion.

         Despite her assertions to the contrary, the Appellant has not shown that she properly served the trial court judge with the motion for speedy trial. The certificate of service attached to the motion indicated service upon the Clerk of Gwinnett County Superior Court, "with an adequate amount of copies to be distributed by the Clerk's Office, to all included parties." On its face, there is nothing in the certificate of service that shows that the Appellant properly served the trial court judge, as required by OCGA § 17-7-170 (a). Therefore, it was not error for the trial court to deny the motion for speedy trial based on the Appellant's failure to comply with the service requirements set forth in OCGA § 17-7-170 (a).[15]

         (b) The Appellant asserts that the trial court abused its discretion in denying her motion for discharge and acquittal based on a violation of her constitutional right to a speedy trial. We disagree.

         An individual accused of criminal activity is guaranteed the right to a speedy trial by the Sixth Amendment to the United States Constitution and Article 1, Section 1, Paragraph XI (a) of the Georgia Constitution.[16] When considering an accused's motion for discharge and acquittal on the basis of a constitutional speedy trial violation, a trial court must perform a two-stage analysis, pursuant to Barker v. Wingo[17] and Doggett v. United States[18] (the "Barker-Doggett" analysis).[19]

         In the first stage, a trial court must make

a threshold determination as to whether the interval between the accused's arrest, indictment, formal accusation, or other triggering event and the trial is sufficiently long for it to be presumptively prejudicial. If that presumption is unwarranted, then the analysis goes no further because the speedy trial claim fails; however, if the delay raises the presumption of prejudice, then the analysis proceeds to the examination of all the Barker v. Wingo[20] factors.[21]

         The second stage requires a court to

engage in a balancing test with the following factors being considered: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of the right to a speedy trial; and (4) prejudice to the defendant.[22] The existence of no one factor is either necessary or sufficient to sustain a speedy trial claim, and a trial court's findings of fact and its weighing of disputed facts will be afforded deference on appeal.[23]

         "[O]n appeal, we review the trial court's weighing of each [Barker-Doggett] factor and its balancing of all four factors only for abuse of discretion."[24] However, if the trial court clearly erred in some of its findings of fact and/or misapplied the law, the deference owed by this Court to the trial court's ultimate ruling is diminished.[25]"The trial court's order must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker-Doggett analysis."[26]

         The relevant time line is as follows. The Appellant was arrested on June 27, 2014. On September 4, 2014, she was indicted on two charges of cruelty to children in the first degree with regard to R. W. On November 2, 2016, the Appellant was re-indicted, adding charges of cruelty to children in the second degree with regard to R. W.[27] In the same indictment, the Appellant was indicted on charges of cruelty to children in the first and second degree with regard to I. W. She filed a motion for discharge and acquittal for failure to comply with her constitutional right to a speedy trial on June 3, 2015, which the trial court denied. The Appellant filed subsequent constitutional speedy trial demands, which the trial court heard on December 28, 2016.

         Threshold Inquiry

         "The pretrial delay is measured from the accused's arrest, indictment, or other formal accusation, whichever comes first, to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion."[28] "In general, a delay of one year in prosecuting a crime is considered to be delay which is presumptively prejudicial."[29] In its order issued January 5, 2017, the trial court determined that "the delay of approximately two and a half years from the time of arrest until the time of this motion hearing and trial scheduled for January 23, 2017 is presumptively prejudicial." We agree that the time frame was ...

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