712 S.E.2d 99 | Ga. Ct. App. | 2011
Q. S. participated in a vicious assault upon a classmate, and the juvenile court adjudicated her delinquent and ordered her into restrictive custody for 12 months. The adjudication of delinquency is based on findings that Q. S. committed acts that, if committed by anadult, would amount to aggravated battery,
Viewed in the light most favorable to the adjudication below,
Following the assault, the victim had a bloody lip and nose, she complained of a headache and dizziness, and she required assistance to stand and walk. Her face later began to swell, and knots appeared on her head, as well as a number of bruises. The victim was taken by her mother to a local hospital, where she underwent a computed tomography (CT) scan. The results of this scan prompted physicians to order magnetic resonance imaging (MRI) of her brain, and this imaging revealed a preexisting brain tumor,
At the hearing below, the State attempted to prove that the assault had somehow affected the preexisting tumor and rendered immediate surgery necessary and that the assault, therefore, was a cause of the resulting memory loss and cognitive impairment. The neurosurgeon who testified, however, said that it was impossible to know what effect, if any, the assault had on this tumor. Although the surgeon admitted it was possible that the assault had a “direct effect” on the tumor, he said it was just as likely that the assault had no effect at all. Moreover, there is no evidence that an immediate surgery was necessitated by the assault. In fact, the surgeon said that surgical removal of the tumor was inevitable because, considering the location of the tumor, the victim would not have lived a long life — perhaps only five more years — without surgical removal.
Based on this record, the juvenile court found that Q. S. had committed acts that, if committed by an adult, would amount to aggravated battery, aggravated assault, and unlawful disruption of a public school, and the court adjudicated Q. S. delinquent. The court then considered the factors set forth in OCGA § 15-11-63 (c) and concluded that restrictive custody is warranted, ordering Q. S. into restrictive custody for 12 months. Q. S. now appeals from the adjudication of delinquency and her placement in restrictive custody.
1. We first consider the sufficiency of the evidence of delinquency. To establish delinquency based on acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts. See In the Interest of A. A., 293 Ga. App. 827, 828 (668 SE2d 323) (2008). So, when a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in
(a) Aggravated Battery. One commits aggravated battery under Georgia law when she maliciously causes another to suffer bodily harm involving, among other things, a deprivation of a member of the body. OCGA § 16-5-24 (a). In this case, the State asserts, and the juvenile court found, that Q. S. deprived the victim of her brain, inasmuch as the victim suffered from short-term memory loss and impairment of her cognitive abilities after the assault. See Miller v. State, 275 Ga. 730, 732 (1) (571 SE2d 788) (2002) (“When the evidence shows that a battered victim has suffered a severe injury to their brain, resulting in the loss of normal brain functioning, they are said to have been ‘deprived of their brain,’ thus suffering an aggravated battery.”); Scott v. State, 243 Ga. App. 383, 384-385 (1) (b) (532 SE2d 141) (2000) (evidence that blows to head of victim caused memory lapses and permanent nerve damage is sufficient to sustain aggravated battery conviction). We agree that the evidence supports a finding that the victim suffered a loss of normal brain function following the assault, but we conclude that the evidence does not prove beyond a reasonable doubt that this loss of normal brain function was proximately caused by the assault that Q. S. and her accomplices committed.
For purposes of aggravated battery, one causes another to suffer an injury when her conduct is a “proximate cause” of the injury, or, put another way, a cause that, “in a natural and continuous sequence, unbroken by any efficient intervening cause, produces [the] injury, and without which the [injury] would not have occurred.” State v. Jackson, 287 Ga. 646, 648 (2) (697 SE2d 757) (2010) (citation and punctuation omitted). “In a criminal case, proximate cause exists when the accused’s act or omission played a substantial part in bringing about or actually causing the victim’s injury . . . and the injury . . . was either a direct result or a reasonably probable consequence of the act or omission.” Chaney v. State, 281 Ga. 481, 482 (1) (640 SE2d 37) (2007) (citation and punctuation omitted). So, to prove aggravated battery in this case, the State was required to
The State does not appear to dispute that the victim suffered from short-term memory loss and cognitive impairment only after the surgeries to remove her tumor and treat complications of the removal of the tumor,
(b) Aggravated Assault. One commits aggravated assault under Georgia law when he assaults another with, among other things, a deadly weapon. OCGA § 16-5-21 (a) (2). Although hands and feet are not deadly weapons per se, they “can become such instruments when used to strike another.” In the Interest of T. W., 280 Ga. App. 693, 694 (634 SE2d 854) (2006). Whether hands or feet constitute a deadly weapon in a particular case is a question for the trier of fact, considering all the relevant circumstances, including the way in which the hands or feet were used and the injuries actually suffered by the victim. See Jones v. State, 294 Ga. App. 564, 566 (1) (669 SE2d 505) (2008); Richards v. State, 222 Ga. App. 853, 854 (1) (476 SE2d 598) (1996).
We think the evidence in this case is sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that Q. S. and her accomplices committed an aggravated assault upon the victim. The evidence shows that Q. S., using her hands, grabbed the victim by the hair, pulled her to the ground, and slammed the head of the victim upon the ground. All three assailants then used their feet to kick the victim as she lay curled upon the floor. And as a result of the assault, the lip and nose of the victim were bloodied, her face was bruised and began to swell, she was missing hair that had been pulled from her scalp, she was unable to stand or walk without assistance, and she complained of a headache and dizziness. These injuries were serious enough to prompt her mother to take her to a hospital and serious enough for medical personnel to order a CT scan. The evidence is sufficient to sustain the finding of aggravated assault. See Jones, 294 Ga. App. at 566 (1) (evidence that defendant beat victim with hands, causing facial swelling, blood on the face, and a fractured facial bone, is sufficient to sustain aggravated assault conviction); Scott v. State, 243 Ga. App. 383, 385 (1) (d) (532 SE2d 141) (2000) (evidence that defendant beat victim about head and face with hands is sufficient to sustain aggravated assault conviction); Richards, 222 Ga. App. at 854 (1) (evidence that defendant choked victim with hands, until the victim lost consciousness, “was unquestionably sufficient” to sustain aggravated assault conviction). Consequently, we affirm the adjudication of delinquency to the extent it is based on a finding of aggravated assault.
(c) Unlawful Disruption of Public School. At the time of the assault in this case, it was “unlawful for any person to disrupt or
Proof that the school disrupted is, in fact, a public school is an essential element of proving a violation of OCGA § 20-2-1181, and like every other essential element, it must be proven beyond a reasonable doubt. See In the Interest of J. B., 289 Ga. App. 617, 618 (658 SE2d 194) (2008). The State concedes that there is no direct evidence here that Washington County High School is a public school. The State argues, however, that a rational trier of fact could infer that it is a public school from the fact that “Washington County” appears in the name of the school. That the name of a county or municipality appears within the name of a school might suggest that the school is operated by the county or municipality, but we do not think it proves beyond a reasonable doubt that the school is a public one.
2. We now turn to the contention that the juvenile court abused its discretion when it determined that restrictive custody is warranted. When a child is found to have committed a designated felony act, such as aggravated assault, the juvenile court is authorized to order restrictive custody under OCGA § 15-11-63.
With respect to the third factor, the juvenile court noted the vicious nature of the assault and the serious injuries that the victim sustained and, based on these things, concluded that the third factor weighs heavily in favor of restrictive custody. We agree that the evidence shows an especially vicious assault and that the victim sustained serious injuries as a result. But the juvenile court seemed to focus most on one particular injury, the short-term memory loss that the victim has suffered since her surgeries. As we discuss in Division 1 (a), however, the evidence does not support a finding that this particular injury was proximately caused by the assault, rather than by the surgical removal of the preexisting brain tumor or the complications and additional surgeries that followed.
Judgment affirmed in part, reversed in part, and vacated in part, and case remanded.
OCGA § 16-5-24 (a).
OCGA § 16-5-21 (a) (2).
OCGA § 20-2-1181.
Q. S. also contends that the statute prohibiting the disruption of a public school, OCGA § 20-2-1181, is unconstitutional. For other reasons, we reverse the adjudication below to the extent it is based on a violation of this statute, see Division 1 (c), infra, so we need not reach the constitutional issue.
See In the Interest of J. C., 308 Ga. App. 336, 337 (708 SE2d 1) (2011).
Both Q. S. and the other two girls later admitted that they had participated in the assault. The principal of their school testified that, when he spoke with Q. S. immediately after the assault, Q. S. admitted punching the victim, ostensibly because the victim “got in her face.’’ And Q. S. gave two written statements about the assault, admitting in each that she hit the victim.
A physician estimated that this tumor had been growing for as long as ten years before the assault.
More specifically, the victim developed hydrocephalus, a condition that involves an excessive accumulation of spinal fluid in the brain. The additional surgical procedures required by this condition involved the placement of shunts to drain excess spinal fluid.
The surgeon explained that, without surgery, the tumor eventually would have obstructed the flow of spinal fluid, which would have caused the victim to lapse into a coma and eventually die.
Notably, the State never asked the neurosurgeon whether the short-term memory loss and cognitive impairment were a result of the assault, the tumor, the surgery to remove the tumor, the hydrocephalus, or the later surgeries to treat the hydrocephalus. The evidence is undisputed, however, that the victim did not show these symptoms until after the surgical procedures. Her principal testified that, immediately after the assault, the victim was able to recall the events leading up to the assault, and in fact, the victim began to prepare a written statement about the assault, although she stopped before completing it because she had a headache. When she was treated at the local hospital and at the Medical College of Georgia before her initial surgery, the victim appeared alert and responsive. And her mother testified that, immediately after the assault, the victim was able to recall the details of the assault and that her memory problems did not appear until after she underwent surgery. Although the State argued below, and the juvenile court apparently found, that the mother said the victim experienced memory loss in the hospital emergency room, we have carefully searched the record and can find no such testimony in it, and it appears that the State no longer disputes that the memory loss and cognitive impairment appeared only after the surgeries.
The statute was amended in 2010 to prohibit only “knowingly, intentionally or recklessly” disrupting or interfering with the operation of a public school. The old version of the statute, however, applies to conduct occurring before May 27, 2010, including the incident at issue here. See Ga. L. 2010, p. 518, § 4.
We note that, according to its website, the Georgia Independent School Association includes many nonpublic schools with names that incorporate the name of a county or municipality, including Athens Academy, Atlanta Girls’ School, Atlanta International School, Atlanta Speech School, Augusta Preparatory Day School, Bulloch Academy, Chatham Academy Crisp Academy, LaGrange Academy, Savannah Country Day School, Terrell Academy and Twiggs Academy Georgia Independent School Association, Member Schools (http://www.gisa-schools.org/) (visited May 27, 2011).
When a juvenile court orders restrictive custody, the child must be placed in the custody of the Department of Juvenile Justice for an initial period of five years, must be confined in a youth development center for a time certain, initially not less than 12 months and not more than 60 months, and must he placed under intensive supervision for 12 months thereafter. See
We recognize that, for the purpose of the restrictive custody analysis, the trier of fact is only required to find facts by a preponderance of the evidence. OCGA § 15-11-63 (b). Under the preponderance standard, to sustain a finding that the assault caused the victim to suffer memory loss, the evidence, viewed in the light most favorable to the findings of the court below, must show that the assault more likely than not played a substantial part in bringing about the memory loss. See Bourjaily v. United States, 483 U. S. 171, 176 (107 SC 2775, 97 LE2d 144) (1987); State v. Rocco, 255 Ga. App. 565, 566 (566 SE2d 365) (2002). Here, however, the only evidence regarding the cause of the memory loss is the testimony of the neurosurgeon, who said it was only as likely as not that the assault somehow affected the brain tumor, thereby necessitating immediate brain surgery. The finding that the assault caused the victim to suffer memory loss, therefore, cannot be sustained. We note, however, that the evidence would support a finding that the assault caused the victim to sustain numerous other serious injuries.
