Cruelty V. Case Brief Summary
MEMORANDUM OF LAW
To: Kimberly D. Beard, Esq.
From: Laura Gardner
Re: Brandon Berry, State of Georgia v. Berry
Date: February 27, 2013
QUESTIONS PRESENTED
I. Can the Defendant be Charged With Cruelty to Children When the Child Was Not in the Defendant’s Care?
II. Can the Defendant be Charged With Cruelty to Children When the Elements Have Not Been Met?
STATEMENT OF FACTS
On June 16, 1998 Jamie June (Jamie) completed a detox program for alcohol abuse and she then started Alcoholics Anonymous (AA) program at the Interfaith Alliance four times a week. In addition to this she continued to meet twice a week with her Psychologist Marsh Mellow (Psychologist). Jamie was getting herself together and was acting like a mother and was even getting things …show more content…
organized around the house. Throughout the month of August, Brandon Berry (Berry) would leave T (Child) with Jamie for periods of time alone and there were never any problems. By September, Jamie started doing most of the caring for the child and spending most days by herself with the child with no problems. In the evening Berry would watch the child so Jamie could continue to go to her AA meetings twice a week and her meetings with Psychologist, who she was now only seeing once a week. Everything was going very smoothly and Jamie was very involved with the Child. In October, Berry was still trying to find a job and happened to find a good opportunity at a company on a one month trial period. However, this company was 175 miles away. Berry would have to spend one month away from Jamie and child during the trial period. Berry’s intention was to move Jamie and the Child closer to his job, if he became employed. Berry spoke to Jamie about this great opportunity and she thought it would be fine but they both wanted to get Psychologist’s opinion. Psychologist advised that Jamie would be okay to take care of the child on her own while Berry was away and she also advised that he would stop by to check on Jamie and the child from time to time. In mid-October Berry left for the job and continued to speak to Jamie every day to check up on how she was doing. Every time he would talk to her he felt everything was going well and didn’t need to worry about anything. When Jamie would go to her AA meetings and her meetings with Psychologist, she would leave the child with the 16 year old neighbor across the hall.
Most of the time the neighbor would come to Berry’s house to watch the child. On November 6, 1998 Jamie needed to go to a meeting. Jamie had not talked to Berry that day because he was very busy. The child was having a bad day because he was teething and did not take his nap. The child finally fell asleep in the playpen that Jamie had in the kitchen. Jamie didn’t want to wake the child so she went across the hall to see if the neighbor could watch the child while she went to her AA meeting. The neighbor was home but wanted to stay at her house so Jamie set up a baby monitor and gave the neighbor the other baby monitor to listen in on the child. Jamie was stressed that day and on the way to her meeting she decided to stop by the bar. When she was there she ordered a drink but did not drink it because she knew that it was not the right thing to do and she had come so far that she didn’t want to screw up now. She decided to go straight home to see the child and did not relapse. Dana Dowright (Social Worker), Berry and Jamie’s social worker saw Jamie at the bar. Social worker knew Berry was not home and went to check on the family at their residence. At about
7:55pm, a fire in Berry’s apartment started. This set off the fire alarm which notified the fire department. The neighbor heard the alarm and ran out of the apartment without getting the child. She realized this afterwards and was screaming for the baby to the police officer, who ran upstairs to retrieve the child. The child was brought to a firefighter who summoned the paramedics to check on him. Psychologist arrived just as the firefighter was handed the baby and she realized it was Jamie’s child. A couple minutes later Jamie arrived screaming about her baby, the firefighter directed her to the paramedics. The paramedics examined the child and advised that the child was going to be okay, but they wanted to take him to the hospital to make sure. Psychologist went with Jamie and the child to the hospital. At the hospital Jamie notified Berry of what happened. It took Berry two hours and fifteen minutes to arrive at the hospital. The child was kept at the hospital overnight for further monitoring. Brandon was then questioned by Officer Viernes (Police Office) about what happened. Later the child was placed in an approved foster home by the social worker pending a Family Court hearing. On Monday, November 9, 1998, Jamie and Brandon were both severalty charged with Cruelty to Children.
BRIEF ANSWERS
I. No. The Defendant cannot be charged with Cruelty to Children because the Child was not in the Defendants care. The Defendant was away at work several miles away and left the child with Jamie. The Defendant had not spoken to Jamie all day and had no knowledge that Jamie left the Child with the babysitter.
II. No. The Defendant cannot be charged with Cruelty to Children because the Defendant does not meet any of the elements of Georgia Code 16-5-70.
DISCUSSION
I. Defendant Not Present During Crime Georgia State Code 16-5-70 (2010) asserts that “(a) A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child's health or well-being is jeopardized.” For example, if one does not provide food or water to their child and it causes the child to become starved of nutrients, then the parents or guardians would be charged under this statute.“(b) Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” Maliciously means deliberately harming someone and causing them physical or mental pain. “(c) Any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” Criminal negligence means “recklessly acting without reasonable caution and putting another person at risk of injury or death (or failing to do something with the same consequences).”(The Free Dictionary by Farlex) “(d) Any person commits the offense of cruelty to children in the third degree when: (1) Such person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery; or (2) Such person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.”
In Tabb v. State 313 GA. App. 852 (2012), Leilani Tabb was charged jointly with her husband on one count of cruelty to children in the first degree by maliciously causing D.W. cruel and excessive physical pain by repeatedly striking D.W. with a belt on November 13, 2008. Leilani argues that she was not the one who actually struck D.W. “Although mere presence at the scene of the crime is insufficient grounds for a conviction, a person can be guilty as a party to the crime if they intentionally aid, abet, encourage, facilitate, assist, or are otherwise concerned in the commission of the acts that constitute the crime.” Leilani was present for the act and allowed the act to take place and did nothing to stop the beating. In the present case before the court, the defendant was not present nor did he have knowledge of the situation therefore he should not be charged with cruelty to children. Nor did the Defendant witness any act that was violent toward the child, because there was no violent act that caused any cruel or excessive mental or physical harm to the minor child. If one is not present or has knowledge of an act how can one prevent an act from happening? Berry had no knowledge of what was happening on the day of question and he could not have as he was 175 miles away from the incident. There would have been no way that Berry could have helped prevent the incident or cause it.
In Kennedy v. State, 277 GA. 588 (2004), Kennedy was convicted of felony murder of Caitlyn Cawthon, the 19–month–old daughter of his girlfriend, with the underlying felony being cruelty to children. The child’s mother left the child with Kennedy and when Kennedy was watching the child he beat her to death. The cause of death was repeated blunt force trauma to the head that caused brain swelling and was an inflicted, non-accidental injury. Kennedy physically caused pain to the child and acted with malice. In the present case before the court, the defendant was not present nor did he cause the child any physical harm. The child in this case was not physically or mentally injured in anyway by the Defendant. Therefore, he should not be charged with cruelty to children when he was not present and he did not physically cause any harm mentally or physically to the child. There can be no malice because there was no cruel or excessive mental or physical harm done to the minor child.
In Amis v. State, 277 GA. App. 223(2006), Amis was convicted of simple battery and three counts of cruelty to children in the third degree. Harris was punched by Amis in the nose and eye and dragged by her hair; he also pulled the telephone cord from the wall when she attempted to call 911. Harris was scared, upset, and emotional and wanted to get away from Amis. Harris testified that the children witnessed the altercation between her and Amis. Amis was convicted of Cruelty to Children in the third degree because he committed a forcible felony, battery, or family violence battery in front of the minor children. In the present case before the court, the defendant was not present and did not commit any forcible felony, battery, or family violence battery at all let alone in front of his minor child. Therefore, Berry should not be charged with Cruelty to Children because this does not apply in this case.
II. Elements of Cruelty to Children
Georgia State Code 16-5-70(a) (2010), asserts that “A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child's health or well-being is jeopardized.” In Copeland v. State, 263 Ga. App. 776(2003), Copeland was charged with committing cruelty to children, because he jeopardized the children's health while they were in his custody by willfully depriving them of necessary sustenance. The children were twins, one boy and one girl, ages two and a half. When Copeland went to visit his girlfriend, the twin’s mother at the hospital after she gave birth to her fourth child, a nurse noticed that the twins were extremely underweight and contacted a hospital social worker. An emergency room physician examined the children who weighed 13 and 14 pounds. The physician testified that the children were limp, weak, and lethargic, had no subcutaneous fat tissue, could not bear weight on their legs, could not sit up on their own, could not crawl, and were severely underweight and malnourished. “In the two years since their discharge from the hospital following their births, the female child gained only nine pounds, and the male child gained only five and a half pounds. The physician noted that at the age of two and a half years, a healthy child born prematurely should weigh between 24 and 32 pounds.” After an examination of the twins DFACS took custody of them and placed them in foster care. In the present case before the court, the defendant did not at the time have immediate charge or custody of the child, because he was away at work. Nor did the defendant ever willfully deprive the child of necessary sustenance to the extent that the child’s health or well-being is jeopardized. The child is in good health and is not malnourished and never has been malnourished. Therefore, Berry should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(a). In Williams v. State, 285 Ga. App. 628 (2007), “Williams was convicted of cruelty to children in the first degree and reckless conduct.” The defendant’s 11–month–old child received extensive burns causing serious injuries while in the defendant's care. Williams states that the child got into a tub with hot bath water and that is what caused the burns. The defendant, upon discovering the child's injuries, delayed in calling for emergency medical assistance for over an hour. Williams gave materially inconsistent statements as to circumstances surrounding the child's injuries, and medical experts testified on behalf of state that the child's injuries could not have occurred in the way described by defendant. Therefore, “Williams maliciously caused the child cruel and excessive physical and mental pain by failing to promptly provide medical attention and treatment to him.”(Williams v. State, 285 Ga. App. 628 (2007) In the present case before the court, the defendant did not maliciously cause the child cruel and excessive physical and mental pain at all. Nor was the child injured in any way shape or form. Therefore, the defendant should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(b), which asserts that “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” In White v. State, WL 150271 (2013), White was convicted of burglary, aggravated assault with deadly weapon, and two counts of cruelty to children in the second degree under Georgia Code 16-5-70(c). The defendant had previously been in relationship with victim. The defendant broke into victim's apartment, stabbed the victim in the neck, dragged her down the hall, and stabbed her in the hand. The victim saw her White and positively identified him as the perpetrator. One of the victim's children witnessed the attack, and that child also positively identified defendant as the perpetrator. One of the victim's children witnessed the defendant's brutal attack on their mother; and both of the children were screaming hysterically while observing their mother, who had been stabbed multiple times and was covered in blood, being treated by ambulance personnel. Because of the acts of the defendant both children suffered cruel or excessive physical or mental pain. In the present case before the court, the defendant did not cause any cruel or excessive physical or mental pain to the child. To be convicted of the charge of cruelty to children in the second degree under Georgia Code 16-5-70(c), there must be proof that the defendant caused the child cruel or excessive physical or mental pain. Berry was not present nor did he cause the child any cruel or excessive physical or mental pain, nor did the child suffer any cruel or excessive physical or mental pain. Therefore, the defendant should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(c).
In Dunn v. State, 736 S.E.2d 392 (2013), Dunn was convicted of malice murder and two counts of cruelty to child. The defendant told his two children that he was going to kill their mother, the victim, who was his wife, because she had “killed him on the inside.” There were two witnesses that heard the children scream in the parking lot, which they then ran to the defendant's vehicle, and saw victim on ground. The defendant was standing over the victim swinging at her. There was a steak knife found in bed of defendant's truck which was consistent with the victim's stab wounds. The children were present at the time the defendant stabbed their mother and witnessed the entire act. Dunn was found guilty of cruelty to child under Georgia Code 16-5-70(d)(1), which asserts “(d) Any person commits the offense of cruelty to children in the third degree when: (1) Such person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery. In the present case before the court, the defendant did not commit cruelty to children in the third degree, because he was not a primary aggressor, and he did not intentionally allow the child to witness a commission of a forcible felony, battery, or family violence battery. There was no forcible felony, battery, or family violence battery in this case. Therefore, the defendant should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(d)(1).
In McCullors v. State, 291 Ga. App. 393(2008), McCullors was convicted of aggravated assault, terroristic threats, and five counts of third-degree cruelty to a child. The defendant approached the victim while the victim was with her children, two friends, and three other children. McCullors then put a gun to the victim's head, and told the victim that when he didn't care about his kids anymore, he was going to kill her. In the present case before the court, the defendant did not commit cruelty to children in the third degree, because he was not a primary aggressor and the child did not see or hear an act of forcible felony, battery, or family violence battery. There was no forcible felony, battery, or family violence battery in this case for the child to see or hear. Therefore, the defendant should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(d)(2).
CONCLUSION
In criminal law you need to prove beyond a reasonable doubt that the defendant is guilty. In order to convict a person with Georgia Code 16-5-70, the elements of the statute need to be met. After careful review of the facts and providing relevant case law to establish support for the case at hand, the questions presented have been answered. The Defendant cannot be charged with Cruelty to Children when the child was not in the defendant’s care. Under Georgia Code 16-5-70 a child fewer than 18 years old needs to be present in order to be charged with this crime. If there was no child present with the defendant then there is no crime of Cruelty to Children. Further, the defendant cannot be charged with cruelty to children when the elements have not been met. The court should not charge the defendant with Cruelty to Children and should dismiss all charges.
To: Kimberly D. Beard, Esq.
From: Laura Gardner
Re: Brandon Berry, State of Georgia v. Berry
Date: February 27, 2013
QUESTIONS PRESENTED
I. Can the Defendant be Charged With Cruelty to Children When the Child Was Not in the Defendant’s Care?
II. Can the Defendant be Charged With Cruelty to Children When the Elements Have Not Been Met?
STATEMENT OF FACTS
On June 16, 1998 Jamie June (Jamie) completed a detox program for alcohol abuse and she then started Alcoholics Anonymous (AA) program at the Interfaith Alliance four times a week. In addition to this she continued to meet twice a week with her Psychologist Marsh Mellow (Psychologist). Jamie was getting herself together and was acting like a mother and was even getting things …show more content…
organized around the house. Throughout the month of August, Brandon Berry (Berry) would leave T (Child) with Jamie for periods of time alone and there were never any problems. By September, Jamie started doing most of the caring for the child and spending most days by herself with the child with no problems. In the evening Berry would watch the child so Jamie could continue to go to her AA meetings twice a week and her meetings with Psychologist, who she was now only seeing once a week. Everything was going very smoothly and Jamie was very involved with the Child. In October, Berry was still trying to find a job and happened to find a good opportunity at a company on a one month trial period. However, this company was 175 miles away. Berry would have to spend one month away from Jamie and child during the trial period. Berry’s intention was to move Jamie and the Child closer to his job, if he became employed. Berry spoke to Jamie about this great opportunity and she thought it would be fine but they both wanted to get Psychologist’s opinion. Psychologist advised that Jamie would be okay to take care of the child on her own while Berry was away and she also advised that he would stop by to check on Jamie and the child from time to time. In mid-October Berry left for the job and continued to speak to Jamie every day to check up on how she was doing. Every time he would talk to her he felt everything was going well and didn’t need to worry about anything. When Jamie would go to her AA meetings and her meetings with Psychologist, she would leave the child with the 16 year old neighbor across the hall.
Most of the time the neighbor would come to Berry’s house to watch the child. On November 6, 1998 Jamie needed to go to a meeting. Jamie had not talked to Berry that day because he was very busy. The child was having a bad day because he was teething and did not take his nap. The child finally fell asleep in the playpen that Jamie had in the kitchen. Jamie didn’t want to wake the child so she went across the hall to see if the neighbor could watch the child while she went to her AA meeting. The neighbor was home but wanted to stay at her house so Jamie set up a baby monitor and gave the neighbor the other baby monitor to listen in on the child. Jamie was stressed that day and on the way to her meeting she decided to stop by the bar. When she was there she ordered a drink but did not drink it because she knew that it was not the right thing to do and she had come so far that she didn’t want to screw up now. She decided to go straight home to see the child and did not relapse. Dana Dowright (Social Worker), Berry and Jamie’s social worker saw Jamie at the bar. Social worker knew Berry was not home and went to check on the family at their residence. At about
7:55pm, a fire in Berry’s apartment started. This set off the fire alarm which notified the fire department. The neighbor heard the alarm and ran out of the apartment without getting the child. She realized this afterwards and was screaming for the baby to the police officer, who ran upstairs to retrieve the child. The child was brought to a firefighter who summoned the paramedics to check on him. Psychologist arrived just as the firefighter was handed the baby and she realized it was Jamie’s child. A couple minutes later Jamie arrived screaming about her baby, the firefighter directed her to the paramedics. The paramedics examined the child and advised that the child was going to be okay, but they wanted to take him to the hospital to make sure. Psychologist went with Jamie and the child to the hospital. At the hospital Jamie notified Berry of what happened. It took Berry two hours and fifteen minutes to arrive at the hospital. The child was kept at the hospital overnight for further monitoring. Brandon was then questioned by Officer Viernes (Police Office) about what happened. Later the child was placed in an approved foster home by the social worker pending a Family Court hearing. On Monday, November 9, 1998, Jamie and Brandon were both severalty charged with Cruelty to Children.
BRIEF ANSWERS
I. No. The Defendant cannot be charged with Cruelty to Children because the Child was not in the Defendants care. The Defendant was away at work several miles away and left the child with Jamie. The Defendant had not spoken to Jamie all day and had no knowledge that Jamie left the Child with the babysitter.
II. No. The Defendant cannot be charged with Cruelty to Children because the Defendant does not meet any of the elements of Georgia Code 16-5-70.
DISCUSSION
I. Defendant Not Present During Crime Georgia State Code 16-5-70 (2010) asserts that “(a) A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child's health or well-being is jeopardized.” For example, if one does not provide food or water to their child and it causes the child to become starved of nutrients, then the parents or guardians would be charged under this statute.“(b) Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” Maliciously means deliberately harming someone and causing them physical or mental pain. “(c) Any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” Criminal negligence means “recklessly acting without reasonable caution and putting another person at risk of injury or death (or failing to do something with the same consequences).”(The Free Dictionary by Farlex) “(d) Any person commits the offense of cruelty to children in the third degree when: (1) Such person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery; or (2) Such person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.”
In Tabb v. State 313 GA. App. 852 (2012), Leilani Tabb was charged jointly with her husband on one count of cruelty to children in the first degree by maliciously causing D.W. cruel and excessive physical pain by repeatedly striking D.W. with a belt on November 13, 2008. Leilani argues that she was not the one who actually struck D.W. “Although mere presence at the scene of the crime is insufficient grounds for a conviction, a person can be guilty as a party to the crime if they intentionally aid, abet, encourage, facilitate, assist, or are otherwise concerned in the commission of the acts that constitute the crime.” Leilani was present for the act and allowed the act to take place and did nothing to stop the beating. In the present case before the court, the defendant was not present nor did he have knowledge of the situation therefore he should not be charged with cruelty to children. Nor did the Defendant witness any act that was violent toward the child, because there was no violent act that caused any cruel or excessive mental or physical harm to the minor child. If one is not present or has knowledge of an act how can one prevent an act from happening? Berry had no knowledge of what was happening on the day of question and he could not have as he was 175 miles away from the incident. There would have been no way that Berry could have helped prevent the incident or cause it.
In Kennedy v. State, 277 GA. 588 (2004), Kennedy was convicted of felony murder of Caitlyn Cawthon, the 19–month–old daughter of his girlfriend, with the underlying felony being cruelty to children. The child’s mother left the child with Kennedy and when Kennedy was watching the child he beat her to death. The cause of death was repeated blunt force trauma to the head that caused brain swelling and was an inflicted, non-accidental injury. Kennedy physically caused pain to the child and acted with malice. In the present case before the court, the defendant was not present nor did he cause the child any physical harm. The child in this case was not physically or mentally injured in anyway by the Defendant. Therefore, he should not be charged with cruelty to children when he was not present and he did not physically cause any harm mentally or physically to the child. There can be no malice because there was no cruel or excessive mental or physical harm done to the minor child.
In Amis v. State, 277 GA. App. 223(2006), Amis was convicted of simple battery and three counts of cruelty to children in the third degree. Harris was punched by Amis in the nose and eye and dragged by her hair; he also pulled the telephone cord from the wall when she attempted to call 911. Harris was scared, upset, and emotional and wanted to get away from Amis. Harris testified that the children witnessed the altercation between her and Amis. Amis was convicted of Cruelty to Children in the third degree because he committed a forcible felony, battery, or family violence battery in front of the minor children. In the present case before the court, the defendant was not present and did not commit any forcible felony, battery, or family violence battery at all let alone in front of his minor child. Therefore, Berry should not be charged with Cruelty to Children because this does not apply in this case.
II. Elements of Cruelty to Children
Georgia State Code 16-5-70(a) (2010), asserts that “A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child's health or well-being is jeopardized.” In Copeland v. State, 263 Ga. App. 776(2003), Copeland was charged with committing cruelty to children, because he jeopardized the children's health while they were in his custody by willfully depriving them of necessary sustenance. The children were twins, one boy and one girl, ages two and a half. When Copeland went to visit his girlfriend, the twin’s mother at the hospital after she gave birth to her fourth child, a nurse noticed that the twins were extremely underweight and contacted a hospital social worker. An emergency room physician examined the children who weighed 13 and 14 pounds. The physician testified that the children were limp, weak, and lethargic, had no subcutaneous fat tissue, could not bear weight on their legs, could not sit up on their own, could not crawl, and were severely underweight and malnourished. “In the two years since their discharge from the hospital following their births, the female child gained only nine pounds, and the male child gained only five and a half pounds. The physician noted that at the age of two and a half years, a healthy child born prematurely should weigh between 24 and 32 pounds.” After an examination of the twins DFACS took custody of them and placed them in foster care. In the present case before the court, the defendant did not at the time have immediate charge or custody of the child, because he was away at work. Nor did the defendant ever willfully deprive the child of necessary sustenance to the extent that the child’s health or well-being is jeopardized. The child is in good health and is not malnourished and never has been malnourished. Therefore, Berry should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(a). In Williams v. State, 285 Ga. App. 628 (2007), “Williams was convicted of cruelty to children in the first degree and reckless conduct.” The defendant’s 11–month–old child received extensive burns causing serious injuries while in the defendant's care. Williams states that the child got into a tub with hot bath water and that is what caused the burns. The defendant, upon discovering the child's injuries, delayed in calling for emergency medical assistance for over an hour. Williams gave materially inconsistent statements as to circumstances surrounding the child's injuries, and medical experts testified on behalf of state that the child's injuries could not have occurred in the way described by defendant. Therefore, “Williams maliciously caused the child cruel and excessive physical and mental pain by failing to promptly provide medical attention and treatment to him.”(Williams v. State, 285 Ga. App. 628 (2007) In the present case before the court, the defendant did not maliciously cause the child cruel and excessive physical and mental pain at all. Nor was the child injured in any way shape or form. Therefore, the defendant should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(b), which asserts that “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” In White v. State, WL 150271 (2013), White was convicted of burglary, aggravated assault with deadly weapon, and two counts of cruelty to children in the second degree under Georgia Code 16-5-70(c). The defendant had previously been in relationship with victim. The defendant broke into victim's apartment, stabbed the victim in the neck, dragged her down the hall, and stabbed her in the hand. The victim saw her White and positively identified him as the perpetrator. One of the victim's children witnessed the attack, and that child also positively identified defendant as the perpetrator. One of the victim's children witnessed the defendant's brutal attack on their mother; and both of the children were screaming hysterically while observing their mother, who had been stabbed multiple times and was covered in blood, being treated by ambulance personnel. Because of the acts of the defendant both children suffered cruel or excessive physical or mental pain. In the present case before the court, the defendant did not cause any cruel or excessive physical or mental pain to the child. To be convicted of the charge of cruelty to children in the second degree under Georgia Code 16-5-70(c), there must be proof that the defendant caused the child cruel or excessive physical or mental pain. Berry was not present nor did he cause the child any cruel or excessive physical or mental pain, nor did the child suffer any cruel or excessive physical or mental pain. Therefore, the defendant should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(c).
In Dunn v. State, 736 S.E.2d 392 (2013), Dunn was convicted of malice murder and two counts of cruelty to child. The defendant told his two children that he was going to kill their mother, the victim, who was his wife, because she had “killed him on the inside.” There were two witnesses that heard the children scream in the parking lot, which they then ran to the defendant's vehicle, and saw victim on ground. The defendant was standing over the victim swinging at her. There was a steak knife found in bed of defendant's truck which was consistent with the victim's stab wounds. The children were present at the time the defendant stabbed their mother and witnessed the entire act. Dunn was found guilty of cruelty to child under Georgia Code 16-5-70(d)(1), which asserts “(d) Any person commits the offense of cruelty to children in the third degree when: (1) Such person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery. In the present case before the court, the defendant did not commit cruelty to children in the third degree, because he was not a primary aggressor, and he did not intentionally allow the child to witness a commission of a forcible felony, battery, or family violence battery. There was no forcible felony, battery, or family violence battery in this case. Therefore, the defendant should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(d)(1).
In McCullors v. State, 291 Ga. App. 393(2008), McCullors was convicted of aggravated assault, terroristic threats, and five counts of third-degree cruelty to a child. The defendant approached the victim while the victim was with her children, two friends, and three other children. McCullors then put a gun to the victim's head, and told the victim that when he didn't care about his kids anymore, he was going to kill her. In the present case before the court, the defendant did not commit cruelty to children in the third degree, because he was not a primary aggressor and the child did not see or hear an act of forcible felony, battery, or family violence battery. There was no forcible felony, battery, or family violence battery in this case for the child to see or hear. Therefore, the defendant should not be charged with Cruelty to Children because he does not meet the elements of Georgia Code 16-5-70(d)(2).
CONCLUSION
In criminal law you need to prove beyond a reasonable doubt that the defendant is guilty. In order to convict a person with Georgia Code 16-5-70, the elements of the statute need to be met. After careful review of the facts and providing relevant case law to establish support for the case at hand, the questions presented have been answered. The Defendant cannot be charged with Cruelty to Children when the child was not in the defendant’s care. Under Georgia Code 16-5-70 a child fewer than 18 years old needs to be present in order to be charged with this crime. If there was no child present with the defendant then there is no crime of Cruelty to Children. Further, the defendant cannot be charged with cruelty to children when the elements have not been met. The court should not charge the defendant with Cruelty to Children and should dismiss all charges.