EVANS v. the STATE. , 816 S.E.2d 843 ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 29, 2018
In the Court of Appeals of Georgia
A18A0184. EVANS v. THE STATE.
MCMILLIAN, Judge.
Stephanie Evans appeals from the denial of her motion for new trial after a jury
convicted her of one count of involuntary manslaughter1 in connection with the death
of Rodney Graham (“RG”),2 an inmate who died while incarcerated at the jail run by
the Douglas County Sheriff’s Office. Evans asserts on appeal that the evidence was
insufficient to support her conviction. Although we find that the evidence was
sufficient to support a jury finding that Evans’ actions and inactions constituted
reckless conduct, the alleged crime underlying the charge of involuntary
1
The jury acquitted Evans of a separate charge of involuntary manslaughter in
connection with RG’s death.
2
To avoid confusion, we refer to Rodney Graham as “RG,” to his family
members by their first names, and to Dr. Jimmy Graham as “Dr. Graham.”
manslaughter, we find that the State failed to present evidence sufficient for the jury
to find beyond a reasonable doubt that Evans’ reckless conduct caused RG’s death.
Accordingly, we reverse.
1. When this Court considers the legal sufficiency of the evidence to support
a criminal conviction, “we must view the evidence in the light most favorable to the
verdict, and we inquire only whether any rational trier of fact might find beyond a
reasonable doubt from that evidence that the defendant is guilty of the crimes of
which he was convicted.” (Citation omitted.) Walker v. State, 296 Ga. 161, 163 (1)
(766 SE2d 28) (2014). See also Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61
LE2d 560) (1979). Under this review, “we put aside any questions about conflicting
evidence, the credibility of witnesses, or the weight of the evidence, leaving the
resolution of such things to the discretion of the trier of fact.” White v. State, 293 Ga.
523, 523 (1) (753 SE2d 115) (2013). Rather, “in every case the jury is the arbiter of
credibility including as to the defendant’s explanation, and the jury is the body which
resolves conflicting evidence, and where the jury has done so, the appellate court
cannot merely substitute its judgment for that of the jury.” (Citation omitted.) Lowery
v. State, 264 Ga. App. 655, 658 (3) (592 SE2d 102) (2003). Nevertheless, “it is
axiomatic that the evidentiary burden in a criminal prosecution is upon the State to
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prove every material allegation of the indictment and every essential element of the
crime charged beyond a reasonable doubt.” (Citation and punctuation omitted.) Jones
v. State, 272 Ga. 900, 902 (2) (537 SE2d 80) (2000). And when the State fails to carry
this burden, the defendant is entitled to a reversal of his or her conviction. See, e.g.,
Chestnut v. State, 331 Ga. App. 69, 77 (769 SE2d 779) (2015); Futch v. State, 316
Ga. App. 376, 380 (1) (a) (730 SE2d 14) (2012); Brown v. State, 152 Ga. App. 273,
274 (1) (262 SE2d 497) (1979).
So viewed, the evidence showed that at the time of RG’s incarceration at the
jail, Evans was serving as the supervisor for the medical department for the Douglas
County Sheriff’s Office. The department’s three other employees were Chad Skinner,
Kelli Brown, both EMTs, and Jody Faircloth, a medical assistant, and all four
employees worked at the Douglas County jail. Dr. Jimmy Graham contracted as the
medical director for the sheriff’s office, which meant he made limited, regular visits
to the jail but was on-call for all medical issues. RG was admitted to the jail for a
probation violation on Wednesday, October 28, 2009, and the following Sunday,
November 1, he submitted a form requesting medical assistance, stating that he was
vomiting, could not keep anything down, and was “really weak.” Faircloth, who was
on call that day, visited RG in his cell, and he told her of his symptoms and also that
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he had a history of kidney stones and infections. Faircloth gave RG medication to
treat his symptoms. At around 10 p.m. that night, RG called his wife, Cathy Graham,
to tell her that he thought he was getting a kidney infection and was concerned that
he was not going to get adequate care at the jail.
The next morning, Monday, November 2, Faircloth reported the situation
involving RG to Evans, and they arranged for him to come to the medical department
for a follow-up. After a urinalysis revealed blood, leukocytes, and bilirubin in RG’s
urine, which Evans and Faircloth believed to be indications of an infection, they
continued treating RG for nausea and pain and added an antibiotic to treat the
infection and Gatorade for hydration. Faircloth and Evans also performed a drug test,
which reflected the presence of several illegal drugs in RG’s urine. In the meantime,
Cathy had obtained a note from Dr. Vance Boddy, RG’s physician and delivered it
to the jail. The note stated that RG had a severe kidney problem and impaired renal
function, which caused him to pass multiple kidney stones weekly and required
“frequent narcotic administration and medical oversight[.]” Evans acknowledged
receiving this note and calling Dr. Boddy’s Office for further clarification. During
that call, she learned that Dr. Boddy had prescribed Percocet, a narcotic, to treat RG’s
condition, and she knew that she was unable to administer narcotics at the jail. Evans
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made the decision to initiate the protocol for detox by giving RG additional
medication and placing him in an isolation room at around 11 a.m. with a camera to
monitor him.
Cathy had also communicated RG’s concerns to his parents overnight, and his
father Ray Graham called the jail Monday morning and spoke to a woman he believed
was Evans. Ray told her that RG had serious kidney problems and asked that he
receive appropriate help. The woman replied that they knew what was wrong with RG
– he was detoxing – and they did not need any help or any medical records.
Concerned about this response, Ray sent an e-mail to the division commander
overseeing the Douglas County jail, explaining that RG had “a very bad kidney
problem” that caused him to pass kidney stones weekly and resulted in frequent,
severe kidney infections, requiring hospitalizations due to his kidneys shutting down.
Ray stated that he was concerned that RG’s kidneys were in danger of shutting down
again, which could endanger his life or his long-term health.3 Evans admitted that she
received and read Ray’s e-mail, and after discussing the issues raised in the e-mail
and Dr. Boddy’s note with Faircloth, she asked for a release from RG to obtain his
3
When Ray received no response to his e-mail, he called the jail again and
spoke with Evans, who told him that he could not talk with RG because he was in
isolation.
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medical records from one of the local emergency rooms (“ER”). Evans reviewed these
records, which showed that RG had visited the hospital ER on a number of occasions
for kidney stones, infections, and renal failure, which sometimes required
hospitalization.
The next day, Tuesday, November 3, between 8:05 and 9:00 a.m., Evans visited
RG in his isolation cell to give him medicine for nausea, which was the only time she
ever visited RG’s cell and the last time she had personal contact with him. Thereafter,
she relied on Brown and Skinner, as well as other non-medical jail employees, to
monitor RG’s condition; however, the evidence supported that Evans never told any
of them that RG suffered from a recurring kidney condition, involving weekly kidney
stones and serious infections. Instead, they were told only that RG was detoxing. At
around 12:30 that day, Joan Graham, RG’s mother called the sheriff’s office to
discuss his condition and to offer to bring RG’s medical records from two hospitals
where he had received treatment. However, she was told that the records were not
needed; rather, she was told that RG was detoxing. That evening after Deputy Tina
Shepherd arrived for her 6:00 p.m. to 6:00 a.m. shift, she noticed that RG was “really
weak” and that he had been vomiting and could not keep anything down. Two
deputies were required to take him to the shower that night because he was so weak.
6
Before Deputy Shepherd left the next day, Wednesday, November 4, at around
6:00 a.m., she spoke with Brown about RG’s condition, telling her he was “really
sick,” weak, and could not keep anything down. About an hour later, during the
inmate headcount, Deputy Robert Glynn Gale found RG lying face down on the floor,
shaking and moaning. Brown was summoned to the cell to check on RG. When
Brown took his vital signs, she could not get a blood pressure reading, his oxygen
level was extremely low, and his pulse was elevated. Brown testified that based on
these observations, she believed RG had experienced a seizure. Deputy Gale testified
that he told Brown at the time that he thought RG needed to go to the hospital, but
Brown told him that RG was detoxing and did not need to go to the hospital. When
Evans arrived for her shift at around 8:00 a.m., Brown told her that she thought RG
“had had a seizure, that his boxers were wet, that he was laying face down, on the
floor, when [she] first saw him, and that he was slow to arouse,” but she reported that
he later appeared to have come out of the seizure and become alert and oriented. At
around 1:00 to 2:00 p.m., a deputy found RG lying under his bunk and shaking. He
notified the medical department, and Evans sent Skinner to check on RG. Skinner
found RG lying on the floor of his cell, but he did not take RG’s vital signs because
he was in a rush to perform other tasks. However, he asked RG if he wanted to get in
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his bunk, and RG said “no.” Skinner reported these circumstances to Evans. Deputy
Gale stated that he continued to check on RG throughout his shift that day and he
could see RG lying on his back, on the floor of his cell, with his hands in the air,
shaking. Gale testified that on four occasions, he asked Evans and/or Brown to check
on him. Although he continued to urge Brown and Evans that RG needed to go to a
hospital, they continued to respond that RG was detoxing. After Shepherd returned
for her shift that evening at around 6:00 p.m., during the inmate head count, she
discovered, RG lying on the floor with his hands in the air, unresponsive, with his
eyes wide open, and not moving. Another deputy and Skinner began CPR, but after
RG was transported to the hospital, he was pronounced dead.
Evans was convicted of involuntary manslaughter under OCGA § 16-5-3 (a)
“in that the defendant did cause the death of Rodney Graham, without any intention
to do so, by the commission of an unlawful act other than a felony, to wit: Reckless
Conduct, O.C.G.A. § 16-5-60 (b)[.]” More specifically, Count Two of the indictment
alleged that Evans failed to provide RG proper medical care and treatment
in that inmate Rodney Graham was suffering from a life threatening
kidney disorder while incarcerated at the Douglas County jail and
despite repeated requests from family members of Rodney Graham the
defendant failed to properly treat and care for Rodney Graham and
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further, notwithstanding these repeated requests to provide the necessary
treatment the defendant failed to do so resulting in his death, contrary to
the laws of said State, the good order, peace and dignity thereof.
Under OCGA § 16-5-60 (b), the reckless conduct statute,
[a] person who causes bodily harm to or endangers the bodily safety of
another person by consciously disregarding a substantial and
unjustifiable risk that his act or omission will cause harm or endanger
the safety of the other person and the disregard constitutes a gross
deviation from the standard of care which a reasonable person would
exercise in the situation is guilty of a misdemeanor.
As the trial court charged the jury, “the crime of reckless conduct is, in essence, an
instance of criminal negligence[,] rather than an intentional act[,] which causes bodily
harm to or endangers the bodily safety of another.” See also Riley v. State, 250 Ga.
App. 427, 429 (2) (551 SE2d 833) (2001). And criminal negligence is statutorily
defined as “an act or failure to act which demonstrates a willful, wanton, or reckless
disregard for the safety of others who might reasonably be expected to be injured
thereby.” OCGA § 16-2-1 (b).
We find that the evidence at trial was sufficient to support a finding by the jury
that Evans failed to provide proper medical care and treatment for RG’s kidney
disorder and that her failure to do so was in reckless disregard of his safety. Evans
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had information from multiple sources that RG’s kidney condition was severe,
required close medical supervision, and had, in fact, resulted in multiple
hospitalizations. Nevertheless, she did not inform Dr. Graham of RG’s condition
before scheduling an appointment for the doctor to see RG on November 5, four days
after RG first began exhibiting similar symptoms as noted in the hospital medical
records. Instead, Evans focused her treatment on detoxing him from his prescribed
narcotics and/or illegal drugs despite warnings from RG’s doctor and family and
evidence in the medical records showing that his disorder had previously resulted in
renal failure. Moreover, Evans failed to inform Brown and Skinner or other jail
employees, upon whom she relied to evaluate RG’s condition, that he suffered from
a severe and apparently recurring kidney disorder, thereby preventing them from
considering that factor during their evaluation of his symptoms of vomiting, seizure,
and extreme weakness.
This evidence supported a jury finding that Evans disregarded a substantial and
unjustifiable risk that her acts or omissions would cause harm or endanger RG’s
safety, and that her disregard constituted a gross deviation from the standard of care
which a reasonable person in her position would exercise. Likewise, the jury was
authorized to find that her actions and inactions demonstrated a willful, wanton, or
10
reckless disregard for RG’s safety so as to amount to criminal negligence. See Morast
v. State, 323 Ga. App. 808, 813 (748 SE2d 287) (2013) (failure to seek medical care
for child who had been bitten multiple times and was suffering from excessive
vomiting sufficient to support finding of criminal negligence). Accordingly, applying
the proper standard of review, the evidence was sufficient for the jury to find that
Evans was guilty of reckless conduct, the underlying unlawful act to the involuntary
manslaughter charge. See generally Patterson v. State, 269 Ga. App. 328, 33031 (604
SE2d 569) (2004) (upholding jury verdict finding reckless conduct); Cowan v. State,
218 Ga. App. 422, 422 (461 SE2d 587) (1995) (same); Cross v. State, 199 Ga. App.
266, 267 (1) (404 SE2d 633) (1991) (same criminal negligence).
Nevertheless, to support Evans’ conviction for involuntary manslaughter, the
State was also required to present evidence showing that Evans’ reckless conduct
caused RG’s death within the meaning of OCGA § 16-5-3 (a). For charges of
involuntary manslaughter in Georgia, proof of cause requires proof of proximate
cause. See State v. Jackson, 287 Ga. 646, 651 (2) n.4 (697 SE2d 757) (2010). Our
Supreme Court has determined that “[i]n a criminal case, proximate cause exists when
the accused’s act or omission played a substantial part in bringing about or actually
causing the victim’s injury or damage and the injury or damage was either a direct
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result or a reasonably probable consequence of the act or omission.” (Citation and
punctuation omitted.) Skaggs v. State, 278 Ga. 19, 19-20 (596 SE2d 159) (2004).
The State’s evidence of causation was presented through the testimony of the
medical examiner, who opined that RG “died of complications of chronic renal failure
with electrolyte abnormality and nephrolithiasm,” which another doctor defined as
having “[a] lot of kidney stones.”4 The medical examiner explained that chronic renal
failure occurs over a prolonged time, weeks, months, or years. Although she testified
that had RG seen a doctor earlier, he or she could have intervened to correct the
electrolyte abnormality, she stated that there was no assurance that RG would not
have gone into renal failure even with such treatment. Rather, in response to a
question about whether RG would have survived if he had been treated four hours
before he was found non-responsive, the medical examiner testified that although
there would have been the opportunity to treat RG, she could not “make that
assessment that, in fact, the patient will have been cured or will have been treated
accordingly.” And even though the medical examiner acknowledged that getting RG
4
Although the State also presented the testimony of Dr. Boddy and the
emergency room doctor who declared RG’s death, they were not presented as expert
witnesses, but instead testified as fact witnesses, as did Dr. Graham; their testimony
did not address the cause of RG’s death.
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treatment earlier would have “helped,” she testified that “[n]obody knows to what
extent this therapy would have helped him survive.”
Likewise, the medical examiner’s affirmative response to the question on cross-
examination asking, “[I]f someone had seen blood in his urine 48 hours to 60 hours
earlier, would there have been the possibility that treatment could have, at least,
prolonged this life?” was insufficient for the jury to find that Evans’ actions or
omissions proximately caused RG’s death. Although this testimony raises a
possibility of some treatment that could have prolonged RG’s life, the medical
examiner did not identify what blood in the urine indicated nor did she specify the
“treatment” that could have possibly prolonged life in response to the presence of
blood in the urine. And in fact the evidence showed that Faircloth and Evans did
respond to the presence of blood, leukocytes, and bilirubin in RG’s urine by
prescribing an antibiotic to combat any infection. The medical examiner testified that
at the time of RG’s death, he did not have an infection nor was his death caused by
an infection. Therefore, while the evidence raises a possibility that some unidentified
treatment could have prolonged RG’s life, it also raises the possibility that the
treatment Evans provided RG was effective in treating any infection.
13
We find, therefore, that the State’s evidence falls short of establishing beyond
a reasonable doubt that Evans’ reckless conduct was the proximate cause of RG’s
death. The prosecution failed to present evidence establishing that Evans’ reckless
conduct played a substantial part in bringing about or actually causing his death, and
it failed to demonstrate that RG’s death was a direct or reasonably probable
consequence of Evans’ actions or inactions. At best, the State’s medical evidence
only supported the possibility that earlier more aggressive medical intervention might
have extended RG’s life.
Because the State failed to carry its burden to establish that Evans was guilty
of involuntary manslaughter beyond a reasonable doubt, her conviction must be
reversed. See Brown, 152 Ga. App. at 274 (1) (State’s “failure to produce evidence
connecting [victim’s] death with the alleged unlawful acts of the defendants mandates
reversal”). Compare Lewis v. State, 180 Ga. App. 369, 372 (5) (349 SE2d 257) (1986)
(upholding conviction for involuntary manslaughter based on abuse of premature
child where medical examiner expressly testified that the cause of death was
pneumonia associated with malnutrition and child abuse); Early v. State, 170 Ga.
App. 158, 163-64 (6) (316 SE2d 527) (1984) (upholding conviction for involuntary
manslaughter even where evidence showed that victim’s lupus contributed to her fatal
14
kidney infection where medical experts were unequivocal that the physical injuries
defendant inflicted on victim and the resulting infection, along with prolonged
neglect, directly and materially contributed to her death).
2. Because we have found that the evidence was insufficient to support Evans’
conviction, we need not address the other enumerations of error she asserted on
appeal.
Judgment reversed. Barnes, P. J., concurs. Reese, J., concurs in judgment
only.*
*THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS
RULE 33.2 (a).
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