Vasquez appeals from the denial of his motion for new trial
after a jury found him guilty of malice murder, two counts of
felony murder, aggravated assault, two counts of cruelty to
children in the first degree, and concealing the death of
another in connection with the death of his two-year old
daughter, Prisi Vasquez. He argues that the State failed to
present sufficient evidence to support his conviction for
cruelty to children in the first degree predicated on his
failure to seek timely medical care for the victim. He also
argues that there was insufficient evidence to support his
conviction for concealing the death of another because the
State did not prove that the applicable statute of limitation
was tolled. Vasquez also argues that the trial court
committed plain error by giving erroneous jury instructions
regarding the statute of limitation applicable to the offense
of concealing the death of another and the manner in which
the statute of limitation could be tolled. He further argues
that the trial court committed plain error when it failed to
instruct the jury regarding corroboration of accomplice
testimony. Additionally, Vasquez argues that he received
ineffective assistance from his trial counsel based on his
counsel's failure to object to the admission of evidence
regarding prior acts of child abuse committed by Vasquez and
because his counsel did not object to the trial court's
instruction regarding the statute of limitation for
concealing the death of another. Finally, Vasquez argues that
his convictions for cruelty to children in the first degree
should have merged with his conviction for malice murder.
Finding no reversible error, we affirm.
Viewed in the light most favorable to the jury's verdict,
the evidence adduced at trial shows as follows. In February
2007, Christian Vasquez and Amy Ruiz were
married and lived in a rented house in Gwinnett
County with their two-year-old daughter, Prisi, and
Ruiz's three-year-old son, J.E. In October 2006, Prisi
and J.E. had been removed from the custody of Vasquez and
Ruiz and placed in the custody of Ruiz's father pursuant
to a juvenile court order following allegations that Vasquez
and Ruiz abused J.E.Ruiz's father had facilitated
opportunities for Ruiz to be with the children, including
allowing Vasquez, Ruiz, and the children to live with him
before they began renting the house in Gwinnett County. The
children were still in the legal custody of Ruiz's father
in February 2007.
left their home at 7:30 a.m. on the morning of February 3 to
babysit the daughter of her sister, Erica
Arroyo. Vasquez stayed home with J.E. and Prisi.
Ruiz testified that Prisi was "completely okay" and
in good health when Ruiz left home that morning.
a.m., Vasquez called Ruiz at Arroyo's house and asked her
to come home because Prisi was sick. Ruiz told Arroyo,
"I've got to go," and took Arroyo's
daughter with her. Ruiz did not return to her house
immediately, and she would later testify that Vasquez called
her several times that morning. Ruiz ran several errands before
returning home between 5:00 p.m. and 6:30 p.m. that
Ruiz arrived home, Prisi was laying on the couch next to
Vasquez and J.E. Vasquez was telling Prisi to wake up, but
she did not respond. Ruiz went over to try to talk to Prisi
and observed that she could make noises with her mouth but
was unable to form words, did not respond to Ruiz, and did
not move. Prisi then stopped breathing.
asked Vasquez, "What did [you] do to my daughter?"
Vasquez told her to "shut up" and that "he
needed time." Vasquez took Ruiz's keys and phone and
then took Prisi away from Ruiz and went into the bedroom,
barring Ruiz from coming into the room. He then stuffed
Prisi's unclothed body into a trash bag and hid her in
the attic through an entrance in the bedroom closet. Around
11:00 p.m. that night, Ruiz called Arroyo and left a
voicemail in which she said, "Call me back. Something
happened. Call me back." Arroyo called Ruiz back later
that night, but Ruiz did not answer.
next morning, Sunday, February 4, Arroyo again called Ruiz.
This time, Ruiz answered and asked for $100 in cash from
Arroyo. Ruiz told Arroyo she needed the money to pay her
electric bill, but she would later testify that she sought
the money so that Vasquez could flee. Arroyo gave Ruiz the
money she requested. That day, Ruiz also obtained a check
from Vasquez's employer (Ruiz's uncle) for $110 and
cashed it. Ruiz testified that Vasquez threatened to kill
J.E. if she did not get money for him. Vasquez used the money
to purchase bus tickets to Mexico. Ruiz, Vasquez, and J.E.
then took a bus to Mexico that day.
did not inform Arroyo or any other members of her family that
she and Vasquez were leaving, and her family became concerned
when they were unable to contact her. Arroyo and other
members of Ruiz's family went to her house on Tuesday,
February 6. Upon entering the house, they observed food on
the table, Prisi's car seat sitting in the living room,
clothing strewn about the house, and a series of black bags
left out in the house, which they found unusual because Ruiz
normally kept a clean house. They also noticed an article of
Prisi's clothing with a wet stain on it. Ruiz's
family filed a missing person report that day concerning
Vasquez, Ruiz, and the children, and Gwinnett County police
responded to the home to investigate. Police entered the
home, interviewed Ruiz's family members who were present,
and took photographs of the home's living area and
bedrooms. They also noticed a bottle of hydrogen peroxide and
a bottle of children's Tylenol on the living room coffee
table and an open bottle of rubbing alcohol in one of the
bedrooms. A detective would later testify that it appeared
someone had left the house "in a hurry." At that
time, the police were not aware there was an access point to
the attic in the home, and the police never attempted to
enter the attic. Prisi's body was not discovered by the
police that day.
February 5, 2007, the owner of the home came to collect rent.
No one answered the door at the house. Two weeks later,
having had no correspondence with Ruiz after trying to
contact her, he went inside the house. He noticed that
numerous items of clothing, furniture, and other personal
belongings were in the house. At the end of February 2007,
still having had no contact with Ruiz, the landlord cleaned
out the house and rented it to new tenants. During this
process, he did not go into the attic.
tenants later moved out, and the landlord decided to move
into the house himself while making some upgrades and
repairs. While living there, he noticed a foul odor in the
house that he could not remove. He hired someone to help him
with the smell, and that person thought the smell might be
coming from a dead rodent. He also noticed a small stain on
the ceiling between the living room and the kitchen.
2007, Ruiz called Arroyo. She told Arroyo that she was in
Mexico with Vasquez, J.E., and Prisi. Ruiz told Arroyo that
she had cancer and that she had gone to Mexico for treatment.
Arroyo questioned this, but offered to send a box of
Prisi's clothes to Ruiz. Ruiz declined the offer, telling
Arroyo that Vasquez's mother bought Prisi "anything
she wants." Ruiz told Arroyo that the kids were doing
well, that they were at the beach, and that everyone was
having a great time.
also spoke to Ruiz by telephone in July 2007. During that
call, Ruiz told Arroyo that she needed a passport and that
she planned to leave Prisi in Mexico and return to the United
States with J.E. Ruiz explained that she was not bringing
Prisi because she would not listen to Ruiz.
time in mid-2008, Ruiz admitted to her father during a phone
call that Prisi was dead and that her body was hidden in the
attic of the Gwinnett County house. On June 20, 2008, her father
and Arroyo went to the Gwinnett County police department to
report what Ruiz had told him to a detective. Arroyo told the
detective about her contact with Ruiz the day Prisi was
killed, her efforts to contact Ruiz the following week, and
the call she had with Ruiz in the summer of 2007.
this discussion, the detective went to the house and spoke
with the landlord, informing him that he had reason to
believe a homicide had occurred in the house. The landlord
allowed the detective to enter the house, and, upon entering,
the detective immediately recognized the smell of decaying
flesh. Upon a search of the attic, the detective found
Prisi's remains. Her body had been wrapped in four black
garbage bags, hidden behind a joist in the attic, and covered
by insulation. The detective contacted employees from the
Gwinnett County Medical Examiner's Office, who came to
the house. The detective and personnel from the medical
examiner's office removed the body from the attic.
day, Prisi's body was transported to the medical
examiner's office for autopsy. The medical examiner
established that the body was that of a young child between
two and three years old. In addition to noting that the body
was partially skeletonized and markedly decomposed, the
medical examiner determined that the skull was fractured. The
fracture, to the back left side of the skull, was a radiating
fracture caused by a blunt impact. The fracture also included
a displaced piece of bone, which the examiner determined
would take "a significant force to break." The
medical examiner testified that skull trauma could result
from a household accident but that the characteristics of the
fracture as well as the fact that the body was concealed in
plastic bags and hidden in the attic argued against a finding
of accidental death. The examiner determined that the impact
likely resulted in injury to the brain and trauma to the
spinal cord and brain stem. The medical examiner testified
that these injuries could be consistent with
non-responsiveness in the extremities and an inability to
respond when called by name. The medical examiner determined
that the cause of death was blunt-force head trauma and that
the manner of death was homicide.
20, 2008, after the detective found Prisi's remains in
the attic of the house, Ruiz's father called Ruiz. The
call was recorded by law enforcement, and, in that call, Ruiz
stated again that Prisi had been left in the attic on
February 3, 2007. Ruiz told her father that she wanted to
call 911 when she discovered that Prisi was injured but that
"[t]hey weren't going to believe me. They were going
to put me in jail. And they were going to take [J.E.] away
from me. And also, I was going to get you guys into worse
problems, and I didn't want my siblings to suffer."
23, 2008, the detective spoke to Ruiz by phone. In that call,
Ruiz stated that Vasquez had wrapped Prisi's body in
garbage bags and placed her in the attic. She also indicated
that she was in Mexico with J.E., but not Vasquez. Ruiz told
the detective that she and Vasquez had borrowed money from
her sister and taken a bus to Mexico. Following the call, the
detective took out charges against Vasquez and Ruiz for the
death of Prisi. The detective was not aware of Vasquez's
whereabouts at that time. On June 25, 2008, Ruiz's father
contacted the detective to report that Ruiz had relayed to
him that J.E. had told her that Vasquez hit Prisi in the head
with a tube.
summer of 2008, Arroyo traveled to Mexico so that she could
bring J.E. back to the United States. Arroyo did not speak
with Ruiz while she was in Mexico, and she picked up J.E.
from other family members. J.E. returned to Gwinnett County
with Arroyo and lived with her following a placement by the
Gwinnett County Division of Family and Children Services
(DFCS). On three occasions, J.E. told Arroyo that "he
hit her-he hit her in the head" with "a tube."
Arroyo described J.E. as being "upset" when he told
her this and that he told Arroyo that he was "scared and
really afraid." Arroyo testified that J.E. also acted
scared around male members of her family. Arroyo began taking
J.E. to therapy after these outbursts.
August 29, 2008, J.E. underwent psychological testing
requested by Gwinnett County DFCS. The psychologist
administered a "children perception test," in which
photographs are shown to the subject and the subject is
prompted to express feelings and thoughts about what is shown
in the photos. The psychologist testified that such photos
might include, for example, a "typical family
scene," a child riding a bike down a street, or an adult
reading a book to a child. In that interview, J.E. responded
spontaneously to one photograph by saying "this is the
daughter, these are her parents, and the man kill [sic] the
daughter with a pipe." As to a different photograph,
J.E. stated, "He kill [sic] her, she's dead."
The psychologist who performed the interview testified that
J.E. became "super stressed and anxious" as he gave
these responses and that these manifestations were triggered
by every photograph which showed a male figure. J.E. then
began pacing around the interview room, curled into a fetal
position on the floor, and asked to stop. The psychologist
was unable to finish the interview. The psychologist
testified at trial that there was no evidence J.E. had been
was also treated by a therapist eight to ten times between
February and August 2009. Arroyo told the therapist that J.E.
had witnessed the murder of his little sister. As part of the
therapy, the therapist introduced J.E. to a playhouse that
had figurines of a generic father, mother, and three
children. During one session, J.E. was playing with the
figurines and knocked the father figure off the roof of the
playhouse. While playing, he told the therapist that
"his daddy had hurt his little sister." In another
instance, J.E. described himself and his sister as
"crying and screaming." He then said that his
sister's crying and screaming "suddenly
returned to the United States on September 9, 2009. She
turned herself in to law enforcement at the Texas-Mexico
border on charges relating to Prisi's death. She was
transferred to Gwinnett County on October 5, 2009, where she
was booked in to jail. While there, she executed an affidavit
in support of Vasquez's extradition from Mexico. The
parties stipulated that Vasquez was extradited from Mexico
and booked into jail in Gwinnett County on January 17, 2013.
Sufficiency of Evidence as to Child Cruelty Count.
contends that the evidence presented by the State was
insufficient to support his conviction for child cruelty in
the first degree predicated on his failure to seek timely
medical care for Prisi. We disagree.
§ 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." In this case,
Count 6 of the indictment alleged that Vasquez committed this
offense by failing to seek medical care for Prisi in a timely
manner despite her being in obvious need of such aid.
have previously discussed,
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 [willful] 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.
(Citations and punctuation omitted.) Brewton v.
State, 266 Ga. 160, 161 (2) (465 S.E.2d 668) (1996). We
have further noted that "[m]alice, as an element of the
crime of cruelty to children, can be shown by intentionally
and unjustifiably delaying necessary medical attention for a
child, as that delay may cause the child to suffer from cruel
and excessive physical pain." Delacruz v.
State, 280 Ga. 392, 396 (3) (627 S.E.2d 579) (2006).
With regard to the crime of cruelty to children,
"criminal intent may be inferred from conduct before,
during and after the commission of the crime."
Johnson v. State, 269 Ga. 632, 634 (501 S.E.2d 815)
the State presented evidence that Prisi was two years old at
the time of this incident. The testimony established that
Vasquez hit Prisi over the head with a "tube." This
blow caused a fracture to Prisi's skull, ultimately
resulting in her death. Ruiz testified that Vasquez then told
her over a phone call that Prisi was "sick." When
Ruiz returned to the couple's home, she found Prisi alive
but unresponsive, and Prisi later stopped breathing. Instead
of seeking medical care or reporting Prisi's injury to
any authority, Vasquez moved Prisi to the bedroom, placed her
body in the attic, pressured Ruiz to obtain money for bus