WIMBUSH v. the STATE. , 812 S.E.2d 489 ( 2018 )

SECOND DIVISION
MILLER, P. J.,
DOYLE, P. J., and REESE, J.
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
March 8, 2018
In the Court of Appeals of Georgia
A17A2056. WIMBUSH v. THE STATE.
REESE, Judge.
A Gwinnett County jury found Therian Wimbush1 guilty beyond a reasonable
doubt of committing three counts of cruelty to children in the second degree2 against
R. W. and I. W., two of her ten children. She appeals, proceeding pro se, from the
judgment of conviction, and raises a number of alleged errors. For the reasons set
forth, infra, we affirm.
1
The Appellant was tried jointly with Recardo Wimbush. Mr. Wimbush is not
a party to this appeal.
2
See OCGA § 16-5-70 (c).
Viewed in the light most favorable to the jury’s verdict,3 the record reveals the
following material facts.
R. W.
R. W. is the eldest of ten children of Recardo Wimbush and the Appellant, and
was sixteen years old at the time of the Appellant’s trial in January 2017. R. W.
initially, until sometime in 2012 when he was twelve years old, slept with his nine
siblings in nine beds in the same room. When he was 12 years old, he began sleeping
on a mat in the exercise room in the basement because “[he] had done something
wrong, but [he did not] remember what it was.” Once R. W. started sleeping in the
basement, he was not permitted to play with his siblings or go upstairs and interact
with them. He testified that, sometime later, his parents wanted to use the exercise
room and “they [ ] cleaned out the closet that was next to it so [he] could sleep in
there.” Soon after moving into the closet, R. W.’s sleeping mat was replaced by his
bed. To relieve boredom while everyone was asleep and without his parents’
permission, R. W. went upstairs one night and took a DVD player, hiding it in the box
3
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
2
spring of his bed. R. W. also took food from upstairs. When his parents found the
DVD player, R. W. received a spanking.
Subsequently, on another occasion, R. W. went upstairs without his parents’
permission, but was caught by his father and sent back to the basement. The next
night, R. W. took a sleeping bag and ran away from home, because he thought he
would receive a spanking for having gone back upstairs. R. W. testified that, once he
left his home, “[he did not] have any plans” and walked for about 30 to 45 minutes.
On August 22, 2012, an officer with the Gwinnett County Police Department
responded to a call about a person walking down a road in Gwinnett County. Upon
arrival, the officer encountered a youth, later identified as 12-year-old R. W., carrying
a blue sleeping bag and walking down the road. When the officer asked for his name,
R. W. responded, “I don’t know.” The officer testified that R. W. explained that he
came from an orphanage, and was “living off of water and food from passerbyers.”
The police officer asked R. W. his name again and R. W. responded with three
separate names and two dates of birth. The officer then placed R. W. into custody for
providing false information. After being placed into the patrol vehicle, R. W. properly
identified himself to the police officer and provided his date of birth and his mother’s
phone number. The Appellant arrived at the scene and completed a juvenile complaint
3
form, which acknowledged that she was assuming custody of R. W. and was aware
of a court date in Juvenile Court. The police officer testified that he did not inquire
about R. W.’s home life, and neither the Appellant nor R. W. discussed it.
A couple of months later, and without R. W.’s prior knowledge, a lock was
placed on the outside of the closet door so that he could not leave the closet. No one
spoke to R. W. about why the lock was there or how long it would remain. Although
there was a window in the closet, R. W. did not have permission from his parents to
open it. There were no lights or bathroom in the closet, and one of R. W.’s parents
brought him food once or twice a day. R. W. did not see or play with his siblings, and
there were no books, toys, or games in the closet. When his bed sheets became moldy,
they were removed without being replaced. R. W. did not exercise in the closet, and
spent his time lying on his bed, listening to his “siblings running around and
screaming and playing and having fun.” When R. W. scratched some of the paint off
of the walls to relieve boredom, the Appellant became “upset.”
R. W. remained in the closet for “about two years,” and during that time, he
wore “[a] tank top and underwear.” He wore the same clothes the entire time and did
not bathe until he went to Juvenile Court. Once R. W. was released from the closet,
4
he stated that his legs felt weak and he experienced pain when he tried to walk, play,
or climb up stairs.
On June 15, 2014, a Department of Family and Children Services (“DFCS”)
representative visited the Appellant’s home in Gwinnett County in response to a
report received on the “child abuse hotline that a child was locked in a basement[.]”
The next day, a DFCS case manager went to the Appellant’s home. Upon arrival, the
Appellant answered the door and told the case manager that she had been “expecting
someone from the Department to follow up.” The Appellant invited the case manager
into the home, and the case manager spoke with Recardo Wimbush and the Appellant
for about two hours. The case manager testified that, according to the couple’s
religious beliefs, “when someone commits a sin, they should be separated and they
should have to pay restitution.” The case manager stated that the Appellant told her
that “[R. W.] was sent down to the basement to separate [him] from the family as a
punishment for his behavior [ ]” and that R. W. had been in the basement “maybe
[about] two years or 18 months.” During that visit, the case manager did not visit with
any of the children living there, but learned from the Appellant that R. W.
was sleeping in the basement, just sleeping in the basement, that was
just his room. And then I think it was August of 2012 he ran away, and
5
the police brought him back. And then he was more restricted to the
basement. And [the Appellant] wasn’t exactly sure, but the child said
January of 2013 he took a DVD player and a book down to his room.
When his mom found it, she put the lock on the room that he was in in
the basement.
According to the case manager, after the Appellant placed the lock on the door, R. W.
was not permitted to “interact with his siblings[,] he was not allowed to leave the
basement[, h]e was just locked in that room.”
During a visit to the home on June 18, 2014, the case manager spoke to R. W.
in his basement closet. She testified that the closet floor contained dirt and hair and
the only furniture in the small room was a box spring and a “very dirty” twin mattress.
Further, the mattress had a blanket but no sheets or pillows; the closet’s window was
covered with white paint; and there was no bulb in the light fixture. Also, the case
manager saw a plastic bottle in a corner of the room that she thought contained urine.
There were no lamps, books, exercise equipment, medicine, DVD players, or any
“form of entertainment” in the room. The word “pride” was written on one of the
room’s walls with “other smaller words written around each letter.”
While the case manager spoke to R. W., he was very soft spoken with a “very
flat affect.” R. W. admitted to her that he took a DVD player and a book downstairs,
6
and when his parents located the items, “they placed a lock on the door and he was
not allowed to leave the basement area.” R. W. also told the case manager that prior
to the installation of the lock on his door, he lived in the basement area, but was able
to travel upstairs at night after the family was asleep.
The case manager saw R. W. with his parents the next day at a court
appearance. He looked “groomed,” with his hair cut short, and according to R. W.,
he had bathed that day. After the court appearance, the case manager accompanied
R. W. to the Gwinnett County Police Department for an interview and observed that
R. W. paused at the front of the building, held onto the rail, and made an effort to
“negotiate how to climb those five steps up into the building.” R. W. complained to
the case manager of pain in his legs, and she noticed that “he walked with a limp.”
The guardian ad litem appointed for all of the Wimbush children interviewed
R. W. during the June 19, 2014 court appearance. R. W. told her that “he hadn’t seen
his siblings in a very long time,” since the placement of the lock on the closet door,
and “besides leaving to come to Juvenile Court[,] he hadn’t been let out of the
room[.]” During the interview, R. W. stated that one of his parents allowed him to
leave the room to use the restroom maybe two or three times a day. If he needed to
use the restroom outside of those times, R. W. relieved himself in a plastic jar in his
7
room. R. W. could not see out of the closet’s window and spent his time in the
basement closet picking at “paint on the walls” and listening to what his family was
doing in the home. She further testified that R. W. told her his parents had accused
him of “inappropriately touch[ing] three of his siblings,” but that “[h]e did not appear
to have any recollection of ever having done anything like that[.]” R. W. told the
guardian ad litem that he stayed in the basement as punishment because “he did bad
things, that he had taken the book and the DVD player and he lied.” R. W. also told
the guardian ad litem that he did not go to school and that his mother used to teach
him, but she “stopped teaching him once the lock was placed on the bedroom door.”
In addition, he told her that he did not recall ever having seen a doctor.
A pediatrician testified that she saw R. W. on July 18, 2014, for a medical
examination and that the youth reported that “he had pain in his legs, knees, and
ankles; that he felt tired pretty frequently [and] occasionally after walking for a while,
he had a little bit of a limp.” R. W. had a fungal rash on his abdomen and his back,
and x-rays of R. W.’s legs, knees, and wrists showed osteopenia and growth crease
lines. According to the pediatrician, osteopenia is defined as “increased bone
destruction, decreased bone formation” that takes awhile to develop and is rare in
juveniles, and that contributing factors are immobilization for a long period of`` time
8
and the inability to do “weight[-]bearing exercises[.]” R. W.’s general screening
laboratory results showed that his Vitamin D level was “significantly low,” and the
pediatrician testified that Vitamin D deficiency “can lead to easy fatigue.”
An expert in child psychiatry conducted a psychiatric forensic examination of
R. W. in July 2015. R. W. told him that he lived in the basement for “about [a] year
and a half” and in that room, “[t]here was practically nothing to do[,] . . . he really
didn’t have any books or other things to entertain himself with.” The child
psychiatrist testified that R. W. was “pretty lonely” and felt “left out [, h]e could hear
other members of the family a lot of the time and [R. W.] wanted to be part of it.”
R. W. expressed to the child psychiatrist a “longing to be with his family, which
[R. W.] found quite painful.” The psychiatrist testified that R. W. appeared to be
“unclear” about why he was originally punished. R. W. underwent a psychosexual
evaluation, and the results were “normal.” The child psychiatrist testified that R. W.
did not receive physical exercise while he was locked in the basement and was “really
quite weak[ ]” upon his release, but he did not complain because he “just thought that
would make things worse.”
9
I. W.
The guardian ad litem met I. W. on June 26, 2014, when he was eight years old.
During the interview, I. W. “could not recall having gone to a doctor.” The guardian
ad litem testified that she saw a mass roughly the “size of [her] fist” just above the
child’s waistline on the left side of his abdomen. I. W. “was very clear that both his
parents and his siblings were aware that the mass was there.” I. W. told the guardian
ad litem that the mass “had been there for as long as he could remember, that it had
gotten larger,” and that it “itched.”
A pediatric oncologist testified that he met I. W. in November 2014 after the
child was referred to him for the abdominal mass. The oncologist diagnosed I. W.’s
mass as a “giant cell fibroblastoma,” which is a rare tumor that grows “very slowly.”
He testified that I. W.’s tumor was the “most extensive giant cell fibroblastoma that
[he had] ever seen present at this stage[ ]” and that removal of the tumor was “a very
involved surgery or very involved process.” The oncologist testified that I. W. told
him that the tumor had been there “as long as he could remember.” He testified that
since November 2014, I. W. had received chemotherapy that had possible side effects
of “prevent[ing] height” and causing skin rashes and nausea, and that I. W. underwent
surgery to “remove visible masses from the abdominal wall[.]” According to the
10
oncologist, however, “the surgery was ineffective in controlling [I. W.’s] tumor[.]”
At the time of the Appellant’s trial, in January 2017, I. W. was again receiving
chemotherapy.
I. W.’s paternal uncle testified that I. W. was living with him at the time of trial
and that the child’s medication “causes him to be nauseous. . . . [S]ometimes [it was]
an all-[d]ay occurrence for [I. W.] that . . . drain[ed] him. He [was] not able to do
things that he would normally want to do.” The uncle testified that, prior to surgery,
I. W. had been anxious, nervous, and apprehensive.
At the conclusion of the State’s case-in-chief, the trial court denied the
Appellant’s motion for a directed verdict. The jury found the Appellant not guilty of
four counts of cruelty to children in the first degree, and found her guilty of three
counts of cruelty to children in the second degree. The trial court sentenced her to
serve twenty years in confinement followed by ten years on probation. The Appellant
appeals from her convictions.
Generally, on appeal from a criminal conviction, the appellate court
view[s] the evidence in the light most favorable to the verdict and an
appellant no longer enjoys the presumption of innocence. [The] Court
determines whether the evidence is sufficient under the standard of
11
Jackson v. Virginia,[4] and does not weigh the evidence or determine
witness credibility. Any conflicts or inconsistencies in the evidence are
for the jury to resolve. As long as there is some competent evidence,
even though contradicted, to support each fact necessary to make out the
State’s case, [the Court] must uphold the jury’s verdict.5
The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational
trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes
charged.6 With these guiding principles in mind, we turn now to the Appellant’s
specific claims of error.
Before reaching the merits of the Appellant’s contentions, however, we note
that her brief does not contain proper citations to the record or transcripts, which are
essential for our consideration of her enumerated errors.7 Further, the Appellant failed
to state the method by which each enumerated error was preserved for appellate
review.8 Pro se status does not relieve a party from the “obligation to comply with the
4
443 U. S. at 319 (III) (B).
5
Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citations omitted).
6
Clark v. State, 275 Ga. 220, 221 (1) (564 SE2d 191) (2002).
7
See Court of Appeals Rule 25 (a) (1), (c) (2) (i).
8
See Court of Appeals Rule 25 (a) (1).
12
substantive and procedural requirements of the law, including the rules of this
Court.”9
The rules of this court are not intended to provide an obstacle for
the unwary or the pro se appellant. Briefs that do not conform to the
rules regarding enumerations of error, structure of briefs, argument, or
citation of authorities, as [the Appellant’s] fails to do, are not merely an
inconvenience or grounds for refusing to consider a party’s contentions.
Such briefs hinder this court in determining the substance and basis of
an appellant’s contentions both in fact and in law and may well
prejudice an appellant’s appeal regardless of the amount of leniency
shown. 10
Nevertheless, we will address the arguments of the Appellant to the extent we are able
to discern them from her brief.
1. The Appellant contends that the trial court erred in denying her motion for
directed verdict and that the evidence was insufficient to support her convictions on
cruelty to children in the second degree. Specifically, she argues that the “record is
9
West v. West, 299 Ga. App. 643, 644 (683 SE2d 153) (2009) (citation
omitted).
10
Williams v. State, 318 Ga. App. 744, 744-745 (734 SE2d 745) (2012)
(citation omitted).
13
void of any evidence that either child suffered any mental or physical pain or injury,
nor that any such pain or injury” was caused by her. We disagree.
Counts 3 and 4 charged the Appellant with committing child cruelty by
“confining [R. W.] in a room for months without sufficient mental stimulation and
social interaction” and “failing to provide physical exercise” for R. W. Count 7
charged the Appellant with committing child cruelty by “failing to seek medical care
for [I. W.’s] abdominal skin cancer.”
Cruelty to children in the second degree, prohibited by OCGA § 16-5-70 (c),
is committed when a person “with criminal negligence causes a child under the age
of 18 cruel or excessive physical or mental pain.” Criminal negligence is 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.”11
As to Count 3, the evidence showed that R. W. felt lonely and isolated from his
siblings while he was locked away in a small closet in the basement for approximately
two years, with only one or two daily visits from a parent. The closet had no lamp and
only contained an uncovered mattress, a box spring, and a plastic jar used to store
R. W.’s urine. The window in the room was covered, and R. W. was forbidden to
11
OCGA § 16-2-1 (b).
14
open it, so the room had no natural light or fresh air. R. W. received little, if any,
formal education, and he was unable to exercise or play while confined in the closet.
He was not permitted to bathe and wore the same clothes for the two years during his
confinement. There was testimony at trial that R. W.’s fingernails were long and
jagged from peeling paint off of the closet walls.
Regarding Count 4, several witnesses testified that R. W. complained of pain
in his legs and of fatigue. R. W.’s treating pediatrician testified that R. W. suffered
from osteopenia in his wrists, knees, and legs, a rare condition that was likely caused
by his confinement to a small room, which prohibited him from playing, running, and
exercising. She also testified that R. W. had “significantly low” levels of Vitamin D
in his body, which can cause weakness and fatigue.
Finally, as for Count 7, the evidence showed that I. W. had a cancerous tumor
for a very long time and that his parents were aware of it, yet they failed to provide
him with any medical treatment. When the tumor was finally diagnosed, it was so
large that I. W. required surgery and at least two rounds of chemotherapy to treat it.
I. W.’s paternal uncle testified that the chemotherapy made I. W. nauseous, which
“drain[ed]” him and kept him from doing things he normally wanted to do.
15
As noted above, it was up to the jury, not this Court, to determine whether there
was sufficient evidence to find the Appellant guilty beyond a reasonable doubt of the
crimes charged, and this Court will not interfere with that determination as long as
it was supported by evidence at trial.12 Given the record before us, including the
testimony of the children, expert witnesses, and treating physicians, we find that the
jury’s guilty verdicts on Counts 3, 4, and 7 were supported by sufficient evidence, and
it was not error for the trial court to deny the Appellant’s motion for a directed
verdict.13
2. The Appellant argues that the trial court erred in denying her motions for
discharge and acquittal pursuant to OCGA § 17-7-170 and her constitutional right to
a speedy trial. We find no error.
(a) The Appellant contends that the trial court erred by denying her motions for
discharge and acquittal under OCGA § 17-7-170. The record shows that the
12
See McKee v. State, 275 Ga. App. 646, 647 (1) (621 SE2d 611) (2005) (“We
neither weigh the evidence nor judge the credibility of witnesses, but determine only
whether the evidence was sufficient for a rational trier of fact to find the defendant
guilty of the charged offense beyond a reasonable doubt.”) (citation omitted).
13
See Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008) (“A jury
is authorized to believe or disbelieve all or any part of the testimony of witnesses, and
it serves as the arbiter of conflicts in the evidence before it.”) (citation and
punctuation omitted).
16
Appellant originally filed a statutory speedy trial demand on October 27, 2014. On
December 2, 2014, the trial court issued an order denying the Appellant’s motion for
failure to “comply with the service requirements” of OCGA § 17-7-170 (a).”14 The
Appellant argued in a January 2017 hearing that she properly served the motion upon
the trial court judge. After the hearing, the trial court again denied her motion.
Despite her assertions to the contrary, the Appellant has not shown that she
properly served the trial court judge with the motion for speedy trial. The certificate
of service attached to the motion indicated service upon the Clerk of Gwinnett
County Superior Court, “with an adequate amount of copies to be distributed by the
Clerk’s Office, to all included parties.” On its face, there is nothing in the certificate
of service that shows that the Appellant properly served the trial court judge, as
required by OCGA § 17-7-170 (a). Therefore, it was not error for the trial court to
deny the motion for speedy trial based on the Appellant’s failure to comply with the
service requirements set forth in OCGA § 17-7-170 (a).15
14
OCGA § 17-7-170 (a) states in pertinent part: “[T]he demand for speedy trial
shall be filed with the clerk of court and served upon the prosecutor and upon the
judge to whom the case is assigned or, if the case is not assigned, upon the chief
judge of the court in which the case is pending.”
15
See Webb v. State, 278 Ga. App. 9, 10 (1) (627 SE2d 925) (2006) (The trial
court correctly denied the defendant’s demand for discharge and acquittal under
17
(b) The Appellant asserts that the trial court abused its discretion in denying
her motion for discharge and acquittal based on a violation of her constitutional right
to a speedy trial. We disagree.
An individual accused of criminal activity is guaranteed the right to a speedy
trial by the Sixth Amendment to the United States Constitution and Article 1, Section
1, Paragraph XI (a) of the Georgia Constitution.16 When considering an accused’s
motion for discharge and acquittal on the basis of a constitutional speedy trial
violation, a trial court must perform a two-stage analysis, pursuant to Barker v.
Wingo17 and Doggett v. United States18 (the “Barker-Doggett” analysis).19
In the first stage, a trial court must make
OCGA § 17-7-170 because the certificate of service did not show that the motion was
served on either the prosecutor or the judge.).
16
Sechler v. State, 316 Ga. App. 675, 676 (730 SE2d 142) (2012).
17
407 U. S. 514, 530 (IV) (92 SCt 2182, 33 LE2d 101) (1972).
18
505 U. S. 647, 651 (112 SCt 2686, 120 LE2d 520) (1992).
19
Johnson v. State, 313 Ga. App. 895, 897 (723 SE2d 100) (2012); see Sechler,
316 Ga. App. at 677 (“The template for deciding constitutional speedy trial claims is
well established and involves application of the [Barker-Doggett] analysis[.]”)
(citations omitted).
18
a threshold determination as to whether the interval between the
accused’s arrest, indictment, formal accusation, or other triggering event
and the trial is sufficiently long for it to be presumptively prejudicial. If
that presumption is unwarranted, then the analysis goes no further
because the speedy trial claim fails; however, if the delay raises the
presumption of prejudice, then the analysis proceeds to the examination
of all the Barker v. Wingo[20] factors.21
The second stage requires a court to
engage in a balancing test with the following factors being considered:
(1) the length of the delay; (2) the reasons for the delay; (3) the
defendant’s assertion of the right to a speedy trial; and (4) prejudice to
the defendant.[22] The existence of no one factor is either necessary or
sufficient to sustain a speedy trial claim, and a trial court’s findings of
fact and its weighing of disputed facts will be afforded deference on
appeal.23
20
Barker, 407 U. S. at 530 (IV).
21
Jenkins v. State, 294 Ga. 506, 510 (2) (755 SE2d 138) (2014) (citation and
punctuation omitted).
22
Barker, 407 U. S. at 530 (IV).
23
Higgenbottom v. State, 290 Ga. 198, 200 (1) (719 SE2d 482) (2011) (citation
and punctuation omitted).
19
“[O]n appeal, we review the trial court’s weighing of each [Barker-Doggett]
factor and its balancing of all four factors only for abuse of discretion.”24 However,
if the trial court clearly erred in some of its findings of fact and/or misapplied the law,
the deference owed by this Court to the trial court’s ultimate ruling is diminished.25
“The trial court’s order must provide sufficient findings of fact and conclusions of
law to permit this Court to determine if the trial court properly exercised its discretion
under the Barker-Doggett analysis.”26
The relevant time line is as follows. The Appellant was arrested on June 27,
2014. On September 4, 2014, she was indicted on two charges of cruelty to children
in the first degree with regard to R. W. On November 2, 2016, the Appellant was re-
indicted, adding charges of cruelty to children in the second degree with regard to
R. W.27 In the same indictment, the Appellant was indicted on charges of cruelty to
children in the first and second degree with regard to I. W. She filed a motion for
24
Johnson, 313 Ga. App. at 898 (punctuation and footnotes omitted).
25
Id. (citation omitted).
26
York v. State, 334 Ga. App. 581, 584 (2) (780 SE2d 352) (2015) (citation and
punctuation omitted).
27
After obtaining the second indictment, the State filed a motion to nolle
prosequi the first indictment and the trial court granted the State’s motion.
20
discharge and acquittal for failure to comply with her constitutional right to a speedy
trial on June 3, 2015, which the trial court denied. The Appellant filed subsequent
constitutional speedy trial demands, which the trial court heard on December 28,
2016.
Threshold Inquiry
“The pretrial delay is measured from the accused’s arrest, indictment, or other
formal accusation, whichever comes first, to the trial or, if the accused files a motion
to dismiss the indictment, until the trial court denies the motion.”28 “In general, a
delay of one year in prosecuting a crime is considered to be delay which is
presumptively prejudicial.”29 In its order issued January 5, 2017, the trial court
determined that “the delay of approximately two and a half years from the time of
arrest until the time of this motion hearing and trial scheduled for January 23, 2017
is presumptively prejudicial.” We agree that the time frame was presumptively
prejudicial, and so proceed to review the trial court’s findings with respect to the
second stage of the Barker-Doggett analysis.
28
York, 334 Ga. App. at 584 (2) (a) (citation and punctuation omitted).
29
Jenkins, 294 Ga. at 510 (2) (a) (citation omitted).
21
The Four Factors
(i) Length of the Delay. The trial court’s findings relied on the prosecutor’s
testimony that “this case [had] not taken significantly longer to be reached for trial
than similarly situated felony criminal cases in the Gwinnett County Judicial Circuit
that require[d] a resolution by trial.” The trial court balanced this factor as neutral,
i.e., not the fault of either party. We find that the trial court did not abuse its
discretion.30
(ii) Reasons for the Delay. This factor requires a trial court to examine both the
reasons for the delay and whether the delay was attributable to the State or to the
accused, and then assign the various degrees of weight to the different reasons
provided by the State and the accused, respectively.31 In the present case, the trial
court, in its extensive findings of fact, specifically noted the numerous motions filed
by the Appellant and that many of them were “deemed to be unsupported by fact
and/or law, were time-consuming and hampered the readiness of the case to move
30
See Weems v. State, 310 Ga. App. 590, 592 (2) (a) (714 SE2d 119) (2011)
(In considering the length of delay in the Barker-Doggett analysis, “the mere passage
of time is not enough, without more, to constitute a denial of due process.”)
(punctuation and footnote omitted).
31
York, 334 Ga. App. at 586 (2) (b) (ii).
22
forward to trial.” The trial court found that the Appellant’s motions were “redundant
in their allegations, [and] raise[d] similar issues in multiple filings[.]” The trial court
weighed this factor heavily against the Appellant. We find no abuse of discretion.32
(iii) Assertion of the Right to Speedy Trial.
The relevant question as to the third Barker-Doggett factor is “whether the
accused has asserted the right to a speedy trial in due course. This requires a close
examination of the procedural history of the case with particular attention to the
timing, form, and vigor of the accused’s demands to be tried immediately.”33 The trial
court found that the Appellant “ ha[d] purportedly asserted the right to a speedy trial,
while at the same time, deliberately filing motions to seemingly delay and avoid trial
in this case.” Ultimately, the trial court weighed this factor favorably to the Appellant,
diminished partially due to her “manner of intentionally manipulating the judicial
process by filing numerous, duplicative motions . . . while simultaneously standing
32
See Rackoff v. State, 275 Ga. App. 737, 738 (1) (b) (621 SE2d 841) (2005)
(Reasons for delay under the Baker-Doggett analysis were largely attributable to the
defendant’s filing of pretrial motions.).
33
Ruffin v. State, 284 Ga. 52, 63 (2) (b) (iii) (663 SE2d 189) (2008)
(punctuation and footnotes omitted); see State v. Pickett, 288 Ga. 674, 676 (2) (c) (3)
(706 SE2d 561) (2011) (“[O]nce [the defendant’s] constitutional right accrues, [he]
has the responsibility to assert it, and delay in doing so normally will be weighed
against him.”) (citations omitted).
23
in the way of her case being reached for a speedy and timely resolution by trial.” We
find no abuse of discretion.34
(iv) Prejudice to the Appellant. “In evaluating this final factor, we consider
three interests which the speedy trial right is designed to protect: preventing
oppressive pretrial incarceration, minimizing anxiety and concern of the defendant,
and, most importantly, limiting the possibility that the defense will be impaired.”35
The trial court weighed this factor heavily against the Appellant, finding that she
“failed to meet her burden of establishing prejudice to her case as a result of any
delays . . . [and] [s]he ha[d] not established proof of a loss of evidence or proof of the
unavailability of witnesses due to the delay of bringing this case to trial.”
The Appellant argues that her ten children were “illegally and
unconstitutionally removed from their home, without any findings of parental
unfitness[.]” Yet, as the trial court noted, “pursuant to rulings and [o]rders from the
Juvenile Court of Gwinnett County, [the Appellant] no longer ha[d] custody of her
34
See Oliver v. State, 262 Ga. App. 637, 641 (4) (c) (586 SE2d 333) (2003)
(The trial court did not err in heavily weighing the assertion of speedy trial factor
under the Barker-Doggett analysis against the defendant who filed numerous pretrial
motions that required the trial court to rule upon before trial could commence.).
35
Johnson, 313 Ga. App. at 904 (2) (d) (punctuation and footnote omitted).
24
ten children, nor [was] she permitted to have any contact with any of her ten
children[.]”
The record also shows that the Appellant failed to present “specific evidence
of how the delay impaired [her] ability to defend [herself].”36 We find that the trial
court did not abuse its discretion in weighing this factor against the Appellant.
(v) Balancing the Four Factors. The trial court found that the delay before trial
was “neutral”; the reasons for the delay “weighed strongly in favor of the State”; the
assertion of the right to speedy trial was “weighed favorably to [the Appellant],” but
the weight was partially diminished due to her “manner of intentionally manipulating
the judicial process”; and the issue of prejudice weighed “favorably to [the
Appellant],” yet was limited in part because of her “own actions in the handling of
her case prior to trial.” Based on these conclusions, the trial court ruled that the State
did not violate the Appellant’s constitutional right to a speedy trial.
36
Higgins v. State, 308 Ga. App. 257, 262 (2) (d) (707 SE2d 523) (2011)
(“Anxiety and concern of the accused are always present to some extent, and thus
absent some unusual showing are not likely to be determinative in defendant’s
favor.”) (citation, punctuation, and emphasis omitted).
25
We find that the trial court did not abuse its discretion in applying the Barker-
Doggett analysis in this case. Consequently, we find that it was not an abuse of
discretion for the trial court to deny the motion for discharge and acquittal.
3. The Appellant alleges that the trial court erred in denying her motions, to
recuse all “Gwinnett Judicial Circuit Judges” and “Gwinnett Circuit Judges and All
Ninth Judicial District Judges.” She also claims the trial court erred in not conducting
a hearing on her recusal motions filed May 9, 2016, and May 31, 2016. We disagree.
“When a motion to recuse is presented, the judge can rule on the timeliness of
the motion and the legal sufficiency of the affidavit, and it is as much the duty of a
judge not to grant the motion to recuse when the motion is legally insufficient as it
is to recuse when the motion is meritorious.”37 Pursuant to Uniform Superior Court
Rule (“USCR”) 25.3, upon the filing of a motion to recuse, the trial judge must
temporarily cease acting upon the merits of the matter and immediately determine
(1) the timeliness of the motion and (2) the legal sufficiency of the
affidavit, and (3) make a determination, assuming any of the facts
alleged in the affidavit to be true, whether recusal would be warranted.
If it is found that the motion is timely, the affidavit sufficient and that
37
Brewer v. Waldroup, 259 Ga. App. 479, 480 (578 SE2d 139) (2003)
(citations and punctuation omitted).
26
recusal would be authorized if some or all of the facts set forth in the
affidavit are true, another judge shall be assigned to hear the motion to
recuse.38
The record shows that, despite the Appellant’s assertions to the contrary, her motion
to recuse filed on May 9, 2016, was ruled upon by the trial court on September 29,
2016. In that order, the trial court found the motion untimely pursuant to USCR 25.3
and that her affidavit was “insufficient on its face.” Also, the trial court stated it was
without authority to hear the Appellant’s motion to recuse all ninth judicial circuit
judges in its order dated January 4, 2017. The Appellant has not provided any
38
Id.; USCR 25.3. states
When a judge is presented with a motion to recuse, or disqualify,
accompanied by an affidavit, the judge shall temporarily cease to act
upon the merits of the matter and shall immediately determine the
timeliness of the motion and the legal sufficiency of the affidavit, and
make a determination, assuming any of the facts alleged in the affidavit
to be true, whether recusal would be warranted. If it is found that the
motion is timely, the affidavit sufficient and that recusal would be
authorized if some or all of the facts set forth in the affidavit are true,
another judge shall be assigned to hear the motion to recuse. The
allegations of the motion shall stand denied automatically. The trial
judge shall not otherwise oppose the motion. In reviewing a motion to
recuse, the judge shall be guided by Canon 3(E) of the Georgia Code of
Judicial Conduct.
27
evidence or citations to authority that demonstrate error by the trial court.39 Thus, we
find that the Appellant has not met her threshold burden.40
As to the Appellant’s argument that all of her motions to recuse were not heard
by the trial court, the record shows that she announced ready for trial without
requesting rulings on the outstanding motions. Because she did not obtain the rulings
before announcing ready for trial, the issue is not preserved for appeal.41
4. The Appellant alleges that the trial court erred in failing to merge Counts 3
and 4 for sentencing purposes. We disagree.
“The doctrine of merger precludes the imposition of multiple punishment when
the same conduct establishes the commission of more than one crime.”42 While a
39
See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error that is not
supported in the brief by citation of authority or argument may be deemed
abandoned.”).
40
See Zellars v. State, 314 Ga. App. 88, 89 (1) (723 SE2d 319) (2012) (The
party alleging error on appeal carries the burden of showing it affirmatively by the
record, and if that burden is not met, the trial court’s judgment is assumed to be
correct and will be affirmed.).
41
Shields v. State, 269 Ga. 177, 179 (3) (496 SE2d 719) (1998).
42
McKenzie v. State, 302 Ga. App. 538, 539 (1) (a) (691 SE2d 352) (2010)
(citing OCGA § 16-1-7 (a), and Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530)
(2006)).
28
defendant’s conduct may constitute more than one crime, Georgia law bars conviction
and punishment of more than one crime if one crime is included in the other.43
An accused may be convicted of a crime included in a crime charged in
the indictment or accusation. A crime is so included when: (1) It is
established by proof of the same or less than all the facts or a less
culpable mental state than is required to establish the commission of the
crime charged; or (2) It differs from the crime charged only in the
respect that a less serious injury or risk of injury to the same person,
property, or public interest or a lesser kind of culpability suffices to
establish its commission.44
“The key question in determining whether a merger has occurred is whether the
different offenses are proven with the same facts. For example, if one crime is
complete before the other takes place, the two crimes do not merge. However, if the
same facts are used to prove the different offenses, the different crimes merge.”45 The
question of whether offenses merge is a legal one, to which this Court applies a “plain
legal error” standard of review.46
43
OCGA § 16-1-7 (a) (1); Drinkard, 281 Ga. at 212.
44
OCGA § 16-1-6.
45
Bonner v. State, 308 Ga. App. 827, 830 (2) (709 SE2d 358) (2011) (footnote
omitted).
46
Osborne v. State, 318 Ga. App. 339, 340 (1) (734 SE2d 59) (2012).
29
In the present case, Count 3 charged the Appellant with causing “excessive
mental pain by confining [R. W.] in a room for months without sufficient mental
stimulation and social interaction.” In contrast, Count 4 charged the Appellant with
causing “cruel and excessive physical pain, by failing to provide [R. W. with]
physical exercise[.]” Convictions do not merge when they are based on separate acts
that are neither factually nor legally contained in the other respective counts, as
charged.47 Here, each of the counts asserts that the Appellant’s different acts caused
a different type of harm, and each requires different evidence to prove harm.
Consequently, the trial court was not required to merge the convictions for
sentencing.48 Consequently, the offenses did not merge as a matter of fact.
5. The Appellant contends that the trial court erred in admitting evidence at
trial that violated the child hearsay statute.49 She failed, however, to specifically
47
Daniel v. State, 292 Ga. App. 560, 566 (5) (665 SE2d 696) (2008).
48
See id.; see also Gaston v. State, 317 Ga. App. 645, 651 (3) (731 SE2d 79)
(2012).
49
Georgia’s child hearsay statute, codified at OCGA § 24-8-820 states,
A statement made by a child younger than 16 years of age describing
any act of sexual contact or physical abuse performed with or on such
child by another or with or on another in the presence of such child shall
be admissible in evidence by the testimony of the person to whom made
if the proponent of such statement provides notice to the adverse party
30
identify the testimony she claims was improperly admitted in support of her
argument. “It is not the function of this [C]ourt to cull the record in search of error.”50
As stated in Division 1, supra, there was sufficient evidence of physical pain
suffered by R. W. and I. W. presented at trial by both minors, their guardian ad litem,
their treating physicians, and other expert testimony sufficient for the jury to find the
Appellant guilty beyond a reasonable doubt of Counts 3, 4, and 7 of the indictment.
Thus, this argument is without merit.51
6. The Appellant contends that the trial court erred in denying her demurrers
to the indictments. She argues that the date range in each count was too broad to
determine when the alleged crimes were committed. She also contends that the
indictments failed to state that her alleged acts injured the children. We disagree.
prior to trial of the intention to use such out-of-court statement and such
child testifies at the trial, unless the adverse party forfeits or waives such
child’s testimony as provided in this title, and, at the time of the
testimony regarding the out-of-court statements, the person to whom the
child made such statement is subject to cross-examination regarding the
out-of-court statements.
50
Rainly v. State, 307 Ga. App. 467, 477 (6) (705 SE2d 246) (2010) (footnote
omitted).
51
See Court of Appeals Rule 25 (a) (1), (c) (2) (i).
31
(a) As stated in Division 2 (b), supra, the Appellant was initially indicted in
September 2014, and then re-indicted with a superseding indictment in November
2016. The Appellant’s arguments as to the first indictment, which charged her with
offenses against R. W., are moot. “A grand jury is not prevented from returning
another indictment against an accused, even though an indictment is pending, where
there has been no jeopardy upon the first indictment.”52 Because no jeopardy attached
to the first indictment and it was dismissed after the State obtained the superseding
indictment, this contention is moot.53
The Appellant argues that the date range in the superseding indictment lacks
sufficiency specificity and improperly includes a period of time when she was
incarcerated. We disagree.
“The general rule is that when the exact date of a crime is not a material
allegation of the indictment, the crime may be proved to have taken place on any date
prior to the return of the indictment, so long as the date is within the applicable statute
52
Hayward-El v. State, 284 Ga. App. 125, 127 (2) (643 SE2d 242) (2007)
(citation and punctuation omitted).
53
See id.; see generally Jayko v. State, 335 Ga. App. 684, 685 (782 SE2d 788)
(2016) (“When the remedy sought in litigation no longer benefits the party seeking
it, the [issue] is moot[.]”) (citations and punctuation omitted).
32
of limitation.”54 “In contrast to a general demurrer, a special demurrer merely objects
to the form of an indictment and seeks more information or greater specificity about
the offense charged.”55 “[W]here the State can show that the evidence does not permit
it to allege a specific date on which the offense occurred, the State is permitted to
allege that the crime occurred between two particular dates. In such a situation,
though, the range of dates alleged in the indictment should not be unreasonably
broad.”56
In its first order denying the Appellant’s special demurrer to the superseding
indictment, the trial court found that “the language of each count of the indictment
tracks the statutory language for cruelty to children, first degree and cruelty to
children, second degree and its various subparts for each count of the indictment.”
The trial court also ruled that the Appellant was “sufficiently placed on notice” for
54
Coats v. State, 303 Ga. App. 818, 820 (1) (695 SE2d 285) (2010) (The
indictment was sufficient because the exact dates of the crimes were not essential
elements of the charged offenses.) (citations and punctuation omitted).
55
Everhart, 337 Ga. App. 337 Ga. App. 348, 353 (3) (a) (786 SE2d 866) (2016)
(citation, punctuation, and emphasis omitted).
56
Ferguson v. State, 335 Ga. App. 862, 868 (2) (783 SE2d 380) (2016)
(citation omitted).
33
the crimes charged against her and what she “[had to] be prepared to defend [against]
at trial.”
In a subsequent order denying another demurrer filed by the Appellant, the trial
court stated, “the date range listed in each count of the indictment [had] been made
a material allegation of any count of the indictment.” The Appellant has not offered
any reason, such as an alibi defense, that would make the date range material to the
State’s case, nor has she shown that she was prejudiced by the State’s failure to
provide specific dates.57 She has also failed to show that the State was able to allege
a specific date or a more narrow range of dates.58 Therefore, the trial court did not err
in denying her special demurrer.59
(b) The Appellant argues that the indictment lacks sufficient facts to charge her
with a crime. We disagree.
A general demurrer challenges the validity of an indictment by
asserting that the substance of the indictment is legally insufficient to
charge any crime. In other words, a general demurrer is essentially a
claim that the indictment is fatally defective and, therefore, void,
57
See Coats, 303 Ga. App. at 820 (1).
58
Id.
59
Id.
34
because it fails to allege facts that constitute the charged crime or any
other crime, including a lesser included offense of the charged crime.60
The trial court stated in its ruling, “the indictment track[ed] the statutory language of
the indicted offenses and sufficiently apprise[d] the [Appellant] of the conduct
alleged to be in violation of the law with sufficient specificity to put [the defendant]
on notice to prepare [her] respective defenses to the allegations.” We conclude that
the language of the indictment tracked the applicable statute and contained sufficient
facts to inform the Appellant of the elements of the criminal offense of cruelty to
children in the first and second degrees. Therefore, this argument is without merit.
7. The Appellant argues that the trial court erred in denying her motion to
suppress evidence, contending that the search warrants were invalid and that the
photos taken of her residence were improperly admitted. This argument is without
merit for the reasons set forth, infra.
(a) The Appellant alleges that the search warrants were invalid because the
State lacked probable cause. We disagree.
A magistrate may issue a search warrant only when the circumstances
set forth in the affidavit establish probable cause that contraband or
60
Everhart v. State, 337 Ga. App. at 353 (3) (a).
35
evidence of a crime will be found in a particular place. On appeal, we
must determine whether the magistrate had a “substantial basis” for
concluding that probable cause existed to issue the search warrant.
Doubtful cases should be resolved in favor of upholding a magistrate’s
determination that a warrant is proper.61
The record shows two separate warrants were issued and executed at the Appellant’s
residence. The State proffered testimony of the investigators that signed each of the
warrants, and both testified were subject to cross-examination by the Appellant.
The trial court, in its order denying the motion to suppress, found that there was
a “substantial basis for [the trial court] to conclude that probable cause existed for the
magistrate judge to issue the search warrants[.]” The trial court also concluded that
“[a]ll [the] evidence obtained pursuant to the lawfully obtained and lawfully executed
search warrants in this case [were] admissible in evidence[.]”
Based on our review of the record, we find that the trial court did not err in
concluding that there was probable cause for the issuance of both search warrants and
that both search warrants were lawfully executed.62
61
Gerbert v. State, 339 Ga. App. 164, 166 (1) (793 SE2d 131) (2016) (citations
and punctuation omitted).
62
Id. at 167 (1) (b).
36
(b) The Appellant alleges that the photographs taken by the DFCS case
manager during a home visit were illegally obtained and inadmissible.
At trial, the State introduced the photographs taken by the DFCS case manager
during her initial visit with R. W., and the Appellant did not object. Since the
Appellant did not object to the introduction of the photographs, this issue has not
been preserved for appeal and is therefore waived.63
8. The Appellant argues that the trial court record is “replete with due process
violations” due to the trial courts “repeated failure and refusal” to follow various state
and federal statutes. Most of the due process violations alleged by the Appellant have
been addressed in Divisions 1 through 8, supra, in this opinion. We will address the
remainder of her allegations.
(a) The Appellant argues that the trial court erred in denying her bond prior to
trial. The Appellant filed several motions for bond, each of which were denied by the
trial court. She argues that, pursuant to OCGA § 17-6-1 and USCR 26.1 (H), the trial
court was required to set bond in her case.
63
See Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991)
(“[W]hile evidence may be subject to objection[,] yet if no objection is made in the
trial court, or if the only objection made is not good, no reversible error is committed
by the trial court in allowing the evidence to be submitted.”) (citation and punctuation
omitted).
37
OCGA § 17-6-1 (e) (4) states that a trial court shall be authorized to release a
person on bail, if the court finds that the individual “[p]oses no significant risk of
intimidating witnesses or otherwise obstructing the administration of justice.” USCR
26.1(H) states the procedure for setting bond, if granted.64
The record shows that the Appellant filed her initial request for bond in this
case on October 23, 2014. DFCS filed an opposition to the Appellant’s motion for
bond, arguing that any contact by the Appellant’s children to their parents “would be
detrimental,” and disruptive “as the parents are opposed to the lifestyle the children
presently enjoy[.]” The record shows that the Appellant did not file a rebuttal to the
DFCS opposition. The trial court denied the Appellant’s motion, ruling that “[the
Appellant] had a bond hearing on August 5, 2014[,] wherein bond was denied in case
14-B-02691-5Q [ ]” and in her motion for bond dated October 23, 2014, she did not
“state any additional facts that were not presented at the first hearing[.]”
64
USCR 26.1 states in pertinent part,
Immediately following any arrest but not later than 48 hours if the arrest
was without a warrant, or 72 hours following an arrest with a warrant,
unless the accused has made bond in the meantime, the arresting officer
or the law officer having custody of the accused shall present the
accused in person before a magistrate or other judicial officer for first
appearance. At the first appearance, the judicial officer shall . . . (H) Set
the amount of bail if the offense is not one bailable only by a superior
court judge, or so inform the accused if it is.
38
The Appellant filed two subsequent motions for bond, and the trial court held
a bond hearing on December 23, 2015. At the hearing, the trial court denied the
Appellant’s motion, ruling,
I deny bond. I cannot make the finding that you pose no significant risk
of intimidating witnesses or otherwise obstructing the administration of
justice. I cannot make the finding that you pose no significant risk of
committing felonies pending trial with the exception of possibly
influencing witnesses.
The Appellant filed additional motions for bond. The trial court, on December 29,
2016, denied the Appellant’s motions for bond, finding that the Appellant “presented
no new information[,] testimony[,] or evidence that indicate[d] a change in
circumstances.”
Based on our review of the record and the foregoing, we find that it was not
error for the trial court to deny the Appellant’s motions for bond.65
(b) She further argues that it was error for the trial court to deny her motion for
bond pending appeal. The trial court denied her motion, which alleged her notice of
appeal, filed February 3, 2017, removed jurisdiction from the trial court, and
65
See OCGA § 17-6-1 (e) (4); see also Rooney v. State, 217 Ga. App. 850, (459
SE2d 601) (1995) (Proper for trial court to deny the defendant bond because he posed
a substantial risk of intimidating witnesses pending trial.).
39
transferred it to the Georgia Court of Appeals. The record shows that the Appellant
was sentenced on February 1, 2017. OCGA § 5-6-36 (a) states in relevant part, “[t]he
entry of judgment on a verdict by the trial court constitutes an adjudication by the trial
court as to the sufficiency of the evidence to sustain the verdict, affording a basis for
review on appeal without further ruling by the trial court. Therefore, it was not error
for the trial court to deny the Appellant’s motion for bond pending appeal.
Judgment affirmed. Miller, P. J., and Doyle, P. J., concur.
40