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Weaver v. State

Court of Appeals of Georgia, Second Division

June 28, 2019

WEAVER
v.
THE STATE.

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

          MILLER, PRESIDING JUDGE.

         Following a jury trial, Tamara Nicole Weaver was convicted of two counts of second degree cruelty to children, three counts of aggravated assault, two counts of first degree cruelty to children, and three counts of aggravated battery. The trial court imposed a 60-year prison sentence with the first 30 years to be served in prison.[1]Weaver appeals from the denial of her motion for new trial. On appeal, Weaver argues that (1) the evidence was insufficient to support her convictions for aggravated battery; (2) the circumstantial evidence presented at trial was insufficient to support all of the charged crimes; (3) the trial court erred by charging the jury with the "short version" of the pattern instructions; and (4) her trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

         Viewed in the light most favorable to the verdicts, [2] the record shows that Weaver had two sons, an infant and a six-year-old. Weaver stayed home with the baby for several weeks after he was born and noticed that he cried a lot and that it was not a "normal" cry. Weaver and her children moved in with her boyfriend when the baby was less than two months old. When Weaver returned to work, she asked her mother to take care of the baby. Weaver's mother noticed that the baby cried a lot and testified that Weaver was having problems with the baby's diet and his crying. Weaver and her boyfriend both worked from 6:00 p.m. to 4:30 a.m., and after she returned to work, Weaver got very little sleep because she took care of the baby when he cried so that her boyfriend could sleep. Weaver's boyfriend only kept the baby on a few occasions. Weaver, her boyfriend, and her mother were the baby's only caregivers.

         When the baby was almost three months old, the crying got worse and Weaver, her boyfriend, and her mom decided to take him to Children's Healthcare of Atlanta (Scottish Rite hospital). A child abuse pediatrician ordered x-rays of the infant and the x-rays revealed numerous bone fractures, some new and others older and in the healing process.[3] The doctor also ordered a CT scan, from which he observed additional fractures to the infant's body. The doctor testified that, in total, the infant had 16 bone fractures throughout his ribs, legs, and pelvis. The doctor testified that some type of trauma to the body would be required to break the bones and that, because the fractures were of different ages, there were at least two different traumatic events that caused the infant's injuries. For the rib fractures, the most likely explanation was a "squeezing force about the chest." The doctor opined that the leg fractures were likely caused by a yanking, jerking or flailing motion, which could not be caused by the baby himself or by normal handling of the baby. To cause the pelvic fracture, a direct trauma to the pelvis would be required, and the injury could have been caused by a person punching or stomping the baby or by a heavy fall directly onto the pelvis. Tests on the infant ruled out the possibility that genetic issues, such as brittle bone disease or other medical disorders, could have contributed to the fractures. The doctor also testified that the baby's injuries were not visible from the exterior of the body and that the types of fractures suffered by the infant would not typically leave any bruises or other marks on the outside of the body.

         The doctor spoke to Weaver, who told him that she had no idea how this had happened and denied that anyone had caused any trauma to her son. Weaver's mother said she was not aware of the baby experiencing any falls or being dropped or handled roughly. Weaver's boyfriend told the doctor that Weaver was not getting much sleep and that the baby's crying and fussiness were wearing her down, but he did not mention any trauma to the baby.

         The doctor concluded that the injuries were most consistent with physical abuse on at least two different occasions. The doctor testified that it would only take a few seconds to inflict these types of injuries and that the number one trigger for abuse in infants from two to three months old is a crying infant. The doctor also testified that it would be highly unlikely that a six-year-old would have the ability to inflict these types of injuries.

         A detective with the Griffin Police Department received a call from the hospital about the infant's multiple fractures. The detective interviewed Weaver, and that recorded interview was played for the jury. In the interview, Weaver said that she could not imagine that anyone in her family would hurt her son. The detective also interviewed Weaver's boyfriend, who said the baby cried a lot and that Weaver "dealt with him." He had no explanation as to what may have caused the baby's injuries. In an interview, Weaver's older son did not disclose that he had been abused or that he had seen anyone abuse his younger brother. The detective also interviewed Weaver's mother. At trial, the parties entered a stipulation, which was read to the jury, stating that law enforcement had ruled out Weaver's mother as a suspect. Weaver testified at trial that she did not squeeze or shake her baby in any way and had no idea that he had fractured bones. She further testified that she did not think that anything had happened to him and that the doctor may have made a mistake.

         Weaver and her boyfriend were indicted on two counts of first degree cruelty to children, two counts of second degree cruelty to children, three counts of aggravated battery, [4] and three counts of aggravated assault. Weaver and her boyfriend were tried jointly, and the jury found Weaver guilty on all counts and her boyfriend not guilty on all counts. The trial court imposed a 60-year prison sentence with the first 30 years to be served in prison. Weaver filed a motion for new trial, which was denied by the trial court. This appeal followed.

         1. In her first enumeration of error, Weaver argues that the evidence was insufficient to support her convictions for aggravated battery. Specifically, Weaver argues that the State failed to prove that the victim's injuries constituted "serious disfigurement" under OCGA § 16-5-24 because they were not "visible." We disagree.

In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to support the jury's verdict and determine if a rational trier of fact could find each essential element of the crimes charged beyond a reasonable doubt. We do not weigh the evidence or determine witness credibility. Conflicts in witness testimony are matters of credibility for the jury to resolve. And as long as there is some evidence, even though contradicted, to support each fact necessary for the state's case, the verdict will be upheld.

(Citation omitted.) Clemons v. State, 265 Ga.App. 825, 825-826 (1) (595 S.E.2d 530) (2004). Also, "[b]ecause the circumstances of each aggravated battery vary, whether disfigurement is serious is best resolved by the factfinder on a case-by-case basis. Consequently, what constitutes serious disfigurement is almost always a question for the jury." Williams v. State, 248 Ga.App. 316, 318 (1) (546 S.E.2d 74) (2001).

In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statue is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.

(Citation omitted.) Jackson v. State, 309 Ga.App. 24, 26 (1) (a) (709 S.E.2d 44) (2011). Additionally, "criminal statutes must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations." (Citation and punctuation omitted.) Bradford v. State, 287 Ga.App. 50, 53 (1) (651 S.E.2d 356) (2007). When a term is not defined by statute, we look to the ordinary meaning of that word, so long as it is not a word of art or a word connected with a particular trade or subject matter. See OCGA § 1-3-1 (b) (2012) ("In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter . . . .").

The statute at issue, OCGA § 16-5-24 (a), provides that
A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.

         The term "seriously disfiguring" is not defined in the statute, thus we look to the ordinary meaning of the word. In an attempt to define disfigurement to support an aggravated battery conviction, this Court has previously relied on Black's Law Dictionary[5] which defines disfigurement as "[a]n impairment or injury to the appearance of a person or thing," and also defines impairment as "a condition in which a part of a person's mind or body is damaged or does not work well . . . ." Black's Law Dictionary (10th ed. 2014) (emphasis supplied). Webster's Dictionary defines "appearance" as an "outward aspect" ...


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