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Handy v. State

Court of Appeals of Georgia, Fifth Division

June 14, 2019

HANDY
v.
THE STATE.

          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          McFadden, Presiding Judge.

         Melissa Handy was tried before a jury on charges of aggravated assault, cruelty to children in the first degree, and battery. The jury found Handy not guilty of aggravated assault, but found her guilty of cruelty to children in the first degree and battery. The trial court imposed a recidivist sentence of twenty years for cruelty to children and a concurrent twelve-month sentence for battery, ordering Handy to serve three years in confinement and the remaining seventeen years on probation. The trial court denied Handy's motion for a new trial, and she filed this appeal.

         Handy claims that there was insufficient evidence to support the cruelty to children conviction; but we find that there was enough evidence from which a rational trier of fact was authorized to find guilt beyond a reasonable doubt. Handy also claims that the court committed plain error in failing to charge the jury on justification; however, Handy affirmatively waived such a charge. Handy further argues that her trial counsel was ineffective; but she has failed to show that counsel's performance was deficient. And she claims that a law enforcement officer gave an improper expert opinion regarding a cut on the victim's arm; but the officer's testimony regarding his observations was appropriate since an adequate foundation was laid with respect to his experience and training. Accordingly, we affirm.

         1. Sufficiency of the evidence.

         "On appeal from a criminal conviction, the appellate court views the evidence in the light most favorable to the verdict, and [the] appellant no longer enjoys the presumption of innocence." Walker v. State, 348 Ga.App. 273 (1) (821 S.E.2d 567) (2018) (citation and punctuation omitted). "We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the [appellant] guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979)." Rowland v. State, Ga.App. (1) (Case No. A18A1562, decided February 12, 2019) (citation omitted).

         So viewed, the evidence shows that Handy got into an argument with her 16-year-old niece that escalated into a physical altercation when Handy grabbed her niece by the hair. During the fight, Handy punched her niece in the face, threw her to the ground, and sliced her arm with a razor blade or box cutter. The niece suffered bruising and swelling to her face. And the deep cut to her arm bled heavily, required stitches, and resulted in a scar.

         OCGA § 16-5-70 (b) provides that 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."

For purposes of this [c]ode 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. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

Delacruz v. State, 280 Ga. 392, 395 (3) (627 S.E.2d 579) (2006) (citation omitted).

         In challenging the sufficiency of the evidence supporting her cruelty to children conviction, Handy contends that there is no evidence of malice because the state failed to prove the absence of justification or excuse. Handy points to evidence that her niece was the initial aggressor and argues that she was therefore justified in defending herself from her niece. But there was also conflicting evidence that Handy was the initial aggressor, cursing at her niece and escalating the argument into a physical altercation by pulling the victim's hair and punching her. Moreover, there was no evidence that the victim used a weapon during the altercation; instead, the evidence showed that only Handy used a razor blade or a box cutter to cut the victim during the fight.

         While there may have been conflicts in the evidence as to who was the initial aggressor and who escalated the incident from a verbal argument to a physical fight, "any such conflicts or inconsistencies were matters for the jury to resolve." Rowland, supra at (1) (citation omitted). The jury was authorized to resolve those conflicts against Handy and find from the evidence that she was not justified in harming her niece by striking her face and cutting her arm as alleged in the indictment. "Given [the evidence that Handy punched her niece in the face and used a weapon to cut her arm], we find no lack of evidence of malice." Sims v. State, 234 Ga.App. 678, 681 (1) (b) (507 S.E.2d 845) (1998). "Accordingly, we conclude that, based upon this evidence, a rational trier of fact could find sufficient malice to find [Handy] guilty beyond a reasonable doubt of cruelty to children[.]" Hill v. State, 243 Ga.App. 614, 617 (533 S.E.2d 779) (2000) (citation omitted). See also Bunn v. State, 307 Ga.App. 381, 383-384 (1) (b) (705 S.E.2d 180) (2010).

         2. Justification.

         In a single enumeration of error, Handy claims that the trial court erred in failing to consider a directed verdict based upon justification and in failing to give a jury ...


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