McCloud v. State

901 S.E.2d 315

MCCLOUD

v.The STATE.

A24A0126

Court of Appeals of Georgia.

May 1, 2024

David Shepherd West, Marietta, for Appellant.

James Bradley Smith, Townsend, Patricia Jean Brooks, Hannah Caryl McLear, for Appellee.

McFadden, Presiding Judge.

On February 6, 2019, three-week-old A. M. was hospitalized with numerous, serious acute and healing injuries, including multiple fractures. Medical experts determined that the infant had sustained non-accidental blunt force trauma over a period of time, and the state jointly charged his parents, both individually and as parties to a crime, with several counts of family-violence aggravated battery (OCGA § 16-5-24) and cruelty to children in the first degree (OCGA § 16-5-70).

This appeal concerns the convictions of A. M.’s father, Jarrett McCloud, for those crimes. McCloud argues that the trial court erred in denying his motion for directed verdict, because the evidence of his guilt was circumstantial and did not exclude the reasonable hypothesis that another person, such as A. M.’s mother, injured the infant. We hold, however, that the evidence was sufficient to support McCloud’s convictions.

McCloud also argues that the trial court erred in permitting evidence of his marijuana use on the day A. M. was taken to the hospital, but we hold that the evidence was admissible as intrinsic to the charged offenses. He argues that the trial court erred in failing to grant him a mistrial sua sponte in response to purported misconduct by the jurors and the bailiff, but we hold that he has not preserved those claims of error for appellate review. Finally, he argues that his trial counsel rendered constitutionally ineffective assistance in failing to request a mistrial both in response to the juror and bailiff issues and in response to the state’s allegedly improper closing argument, but we hold that he has not met his burden of showing both deficient performance and prejudice.

So we affirm.

1. Directed verdict

[1, 2] We review the trial court’s denial of McCloud’s motion for a directed verdict under the same standard as that used "for determining the sufficiency of the evidence to support a conviction. Under that standard, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Shelton v. State, 313 Ga. 161, 168 (2), 869 S.E.2d 377 (2022) (citations and punctuation omitted). (Some of the evidence discussed below is the trial testimony of A. M.’s mother, Megan Richmond, who was indicted with McCloud. Whether she was McCloud’s accomplice, such that her testimony would require corroboration to establish a fact in this case, was a question for the jury, which was instructed on that issue. See Caldwell v. State, 313 Ga. 640, 643 (1), 872 S.E.2d 712 (2022).)

So viewed, the evidence showed that A. M. was born on January 14, 2019, and was discharged from the hospital two days later. At that time, he had no physical injuries.

From January 16 to January 25, A. M. and his mother, Richmond, stayed with McCloud in a room within a small mobile home that McCloud shared with other family members. McCloud was one of the infant’s caregivers and on at least one occasion during this time period A. M. was in his sole care. A. M. had some visible scratches and other abrasions on his body during this time period. He also cried a lot and showed signs of discomfort whenever his body was moved or manipulated, such as when his clothes were being changed. Richmond discussed some of these issues with A. M.’s pediatrician and on January 21 searched the internet for "why [her] baby’s eye [was] swollen." McCloud did not attend any of A. M.’s pediatrician appointments.

Between January 25 and January 31, 2019, A. M. and Richmond visited Richmond’s parents. McCloud did not accompany them and had no contact with A. M. during those days. A. M. did not display any new injuries during the visit.

On January 31, 2019, A. M. and Richmond returned to the room in the mobile home that they shared with McCloud, and McCloud again had access to the infant. The next day, Richmond noticed bruises on the infant’s face. A. M. also sustained a cut near his eye while he was in McCloud’s sole care. A photograph of A. M. taken on February 3 showed the infant with a noticeable cut under his eye and bruises on his face. McCloud told Richmond that the injuries were normal and that the infant had inflicted them on himself. Richmond continued to have concerns about A. M.’s physical condition and sought answers from her parents, from a friend, and through internet searches on issues such as the presence of blood in a baby’s stool and why a baby's joints popped.

On February 5, 2019, McCloud yanked A. M. out of Richmond’s arms during an argument. Upset, Richmond walked out of the room, leaving the infant in McCloud’s care for a bit. Later Richmond noticed that one of A. M.’s legs was badly swollen and larger than his other leg. During the night, she tried to discover the cause by conducting internet searches such as "why is my baby’s thigh swollen?" and sending her close friend a picture of A. M.’s leg. Richmond told McCloud that she thought A M. needed medical attention, but McCloud disagreed and the two got into an argument about it. McCloud refused to let Richmond leave the room with A. M„ stating that the infant had a blood clot that could be addressed by massaging the swollen leg.

The next morning, February 6, 2019, another resident of the mobile home stated that she would call 911 if Richmond did not seek medical care for A. M., and later that day, Richmond and McCloud’s mother took A. M. to the hospital. McCloud did not go with them, having stated that "it was a bad idea" and that "DFCS would get involved and take [A. M.] away."

When A. M. arrived at the hospital on February 6, 2019, he had significant injuries. Many of the injuries were immediately visible, including severe bruising, several scratches, and dried blood on his face; bruising and discoloration on numerous other parts of his body; his eye injury; and his badly swollen leg. Initial scans revealed that A. M. also had several fractures, including a broken leg.

Suspecting child abuse, hospital personnel immediately notified law enforcement and took custody of A. M. Law enforcement asked McCloud to come to the hospital, and when he arrived McCloud appeared to be under the influence and stated that he had been smoking marijuana.

A. M. was transferred to a specialized children’s hospital, where additional observation, scans, and other testing revealed that he had numerous serious injuries, including blunt force trauma to his "diaper area"; trauma to his brain, tissues, and abdomen; and various fractures. Some of his injuries, including a fracture to his right clavicle, were in the process of healing, meaning that they had occurred sometime between his birth and January 28. Other injuries were acute and had not yet begun to heal, meaning that they had occurred sometime between January 24 and February 6, when A. M. was hospitalized. Still other injuries could not be dated.

A doctor who examined A. M. at the children’s hospital and who was an expert in child abuse pediatrics opined that the infant’s injuries were non-accidental trauma, meaning that they had been intentionally inflicted upon him. Some, such as the leg injury, were caused by significant force. The doctor testi- fied that A. M.’s right femur (or upper leg) was "significantly displaced," meaning "the bone was literally bent," and his right tibia and fibula (or lower leg) had a type of fracture caused by "forceful yanking, twisting, or shearing." Those fractures would have occurred shortly before A. M.’s leg started swelling. The doctor testified that the infant could not have inflicted the injuries on himself, and the injuries would not have occurred in a single incident.

McCloud argues that he was entitled to a directed verdict because this evidence was insufficient to support his convictions. Because the trial court merged several of the convictions for sentencing, we consider only the convictions for which McCloud was sentenced. See Rivera v. State, 317 Ga. 398, 405 (1), 893 S.E.2d 696 (2023); McIntyre v. State, 312 Ga. 531, 534 (1) n. 5, 863 S.E.2d 166 (2021). Those convictions are for family-violence aggravated battery for injuring A. M.’s right clavicle between January 16 and January 25 (Count 1); first-degree child cruelty for causing fractures to A. M. between January 16 and January 25 (Count 15); and first-degree child cruelty for causing multiple injuries to A. M., including fractures, bruises, and scratches, between January 31 and February 6 (Count 17).

McCloud argues that there was only circumstantial evidence that he was the person who injured A. M. and that the evidence did not exclude the reasonable hypothesis that another person, such as Richmond, inflicted the injuries. Although we agree that there is only circumstantial evidence of McCloud’s guilt, the evidence nevertheless authorized his convictions.

As an initial matter, we do not address whether the circumstantial evidence authorized McCloud’s convictions on a theory that he was a party to the crimes, because even though the state charged McCloud both individually and as a party to the crimes, the trial court instructed the jury that "the party-to-a-crime doctrine [did] not apply to this case." (We discuss that instruction in more detail below, in connection with one of McCloud’s claims for ineffective assistance of counsel.) We note, however, that our Supreme Court has recently held that where a young child sustained fatal injuries while in the exclusive care of her mother and her mother’s boyfriend, and the defendant boyfriend downplayed and failed to account for those injuries, the circumstantial evidence was sufficient to show either that he personally injured the child or that he was a...