MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
McFadden, Presiding Judge.
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
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
Sufficiency of the evidence.
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).
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.
§ 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).
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
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).
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 ...