Lee v. State , 255 Ga. App. 87 ( 2002 )

Johnson, Presiding Judge.

Yung Lee was charged with cruelty to children in the first degree for beating her 17-year-old stepdaughter with a stick. Lee denied the charge and was tried before a jury, which returned a guilty verdict. Lee moved for a new trial, but the trial court denied the motion. Lee appeals, arguing that there is insufficient evidence that she acted maliciously. Contrary to Lee’s argument, there is sufficient evidence of malice.

OCGA § 16-5-70 (b) provides that a person commits cruelty to children in the first degree when she maliciously causes cruel or excessive physical or mental pain to a child under the age of 18. Under this Code section, malice means the absence of justification or excuse and the presence of an intent to cause the harm produced or the wanton and wilful doing of an act with awareness of the likelihood that such harm may result.¹ Intent is a question of fact to be determined from the circumstances surrounding the act, including words, conduct, demeanor and motive.²

The evidence at trial showed that Lee beat her stepdaughter with a three-foot-long wooden stick for having holes in a pair of overalls. The girl testified that Lee forced her to kneel in the living room and then hit her on the arms, legs and head with the stick more than 30 times. Lee stopped the beating and had the girl go wash her face because she was crying and her nose was running. When the girl came back from the bathroom, Lee resumed the beating and said that she wished the girl would die.

The stepdaughter reported the incident to a school counselor. The police were notified, and they obtained a search warrant for the Lee house: In the house, the police found the stick Lee used to hit the girl.

The doctor who examined the girl testified that the she had multiple contusions on her right shoulder, arm, thigh and buttocks and also had bruising on the left side of her body. According to the doctor, the girl appeared to be in great pain, and the contusions on her body were consistent with having been hit with the stick found by the police. He estimated that the girl had been struck at least 20 times.

Decided April 16, 2002. Sharon L. Hopkins, for appellant. Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

Lee admitted at trial that she had hit her stepdaughter with the stick because of the girl’s torn clothing. But she claimed that she had struck the girl only about ten times. Lee testified that she was trying to educate the girl and did not mean to hurt her.

Having reviewed the evidence in the light most favorable to the verdict,³ we find sufficient evidence from which the jury could have found beyond a reasonable doubt that Lee maliciously caused excessive physical pain to her stepdaughter.⁴ Because there is sufficient evidence of malice, Lee’s appeal is without merit and the conviction is hereby affirmed.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

1 Hill v. State, 243 Ga. App. 614, 616 (533 SE2d 779) (2000).

2 Id.

3 Id. at 614.

4 See Green v. State, 266 Ga. 550, 551 (1) (468 SE2d 365) (1996); Nunez v. State, 237 Ga. App. 808, 809-810 (1) (516 SE2d 357) (1999).