Bell v. State

Birdsong, Judge.

Kenneth L. Bell was convicted of cruelty to his ten-month-old son and sentenced to serve five years. He enumerates as the sole error that the evidence is insufficient to support the findings of guilty. Held:

Submitted May 9, 1979 Decided June 7, 1979.

The facts establish that Bell believed the infant was not his child and had shown disregard for and uttered verbal abuse of the child. Medical testimony showed that the child received two old bone fractures and one recent, the recent fracture being a fresh fracture of an old leg fracture. Appellant’s eight-year old son testified that he saw Bell bend the infant’s leg and that caused the child’s injury, which the eight-year old witness stated to be a broken leg. Opposed to this testimony was the appellant’s denial of any such behavior.

On appeal from findings of guilty, the presumption of innocence no longer prevails, the fact finders have determined the credibility of witnesses, the fact finders have been convinced beyond reasonable doubt, and the appellate courts review the evidence only to determine if there is any evidence sufficient to authorize the fact finder to return the verdict of guilty. Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131); Blackwell v. State, 139 Ga. App. 477, 478 (228 SE2d 612). We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498); Wren v. State, 57 Ga. App. 641, 644 (196 SE 146). Where the testimony of the state and that of the defendant is in conflict, the jury is the final arbiter. Sims v. State, 137 Ga. App. 264 (223 SE2d 468); Crews v. State, 133 Ga. App. 764 (213 SE2d 34). Although the evidence was in conflict on the principal issue, it was for the jury to resolve that conflict. The jury resolved the conflict in favor of the state, and this court will not substitute its judgment for that of the jury. There being some evidence to support the verdict of the jury, we find this enumeration to be without merit. Glover v. State, 237 Ga. 859, 860 (230 SE2d 293).

Judgment affirmed.

Quillian, P. J., and Smith, J., concur. Hatcher & Strickland, Donald E. Strickland, for appellant. William S. Lee, District Attorney, Hobart M. Hind, Assistant District Attorney, for appellee.