A jury found Dawn Michelle Withrow guilty on three counts of cruelty to children for failing to seek medical care for her seven-month-old daughter. On appeal, she contends that (1) the evidencе was insufficient, (2) the trial court improperly restricted voir dire, (3) the trial court erred in its charge on criminal intent, and (4) the trial
Viewed in the light most favorable to the verdict, the evidence shows that on Novеmber 2, 2002, Withrow’s seven-month-old daughter was under the supervision of Withrow’s boyfriend, Allen Brady McKee, at their residence. That afternoon, while the baby was seated in her walker, McKee kicked her into a space heater, breaking her arm, scratching her face, and overturning her walker. She and the walker were then lifted up and slammed to the ground, breaking both her legs and causing the walker to collapse and break. McKee did not inform anyone of the incident until Withrow returned to the residence that evening.
Upon her arrival, Withrow noticed the child’s faciаl injuries, her general soreness, and her trouble sleeping. The next day, the child cried all day, especially when her legs were touched. The following evening, Withrow again noticed that the child was whimpering, was having trouble sleeping, and “squealed” when her legs were handled in the course of changing her diapers. Later that night, Withrow and McKee took the child to the hospital, where the baby cried out in pain when the attending nurse moved her legs. Withrow admitted to the nurse that the baby had been responding in that way with her as well.
The jury found Withrow guilty on three counts of child cruеlty in the first degree, one for each day she neglected to obtain medical care for her daughter. After refusing a request to merge the three counts, the trial court sentenced her on all of them. Her motion for new trial was denied, and she now appeals.
1. Withrow first contends that the evidence was insufficient to sustain the jury’s verdict finding her guilty of three counts of cruelty to children in the first degree. We disagree.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. Williams v. State,
A person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18cruelor excessive physical or mental pain. OCGA§ 16-5-70 (b). For the purposes of this Code section, malice “imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong
Here, evidence exists that Withrow knew both the cause of her daughter’s injuries and the severity of those injuries, and yet failed to procure medical treatmеnt for nearly three days. Such is sufficient to enable a jury to conclude that she acted wilfully and wantonly, aware of the harm to her daughter that would result from her neglect. Wolf v. State,
2. Withrow also contends that the trial court impropеrly restricted voir dire. We disagree.
Generally, defense counsel has
the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail . . . [or] any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action.
OCGA § 15-12-133. However, no question should require a response from a juror which might amount to a prejudgment of the case. Chancey v. State,
As Withrow acknowledges, there is not always a clear distinction between questions that ask prosрective jurors how they would decide a case “if and when such issues are presented and questions which merely inquire whether they can start the case without bias or prior inclination.” (Citаtion and punctuation omitted.) Laster v. State,
Withrow’s counsel asked the panel, “Does anybody feel like because of the nature of this case that you’re so sensitive of this that you would have a hard time serving on this jury?” Sustaining the State’s objection, the trial court reasoned that the question impermissibly asked the potential jurors to prejudge the case. Withrow disagrees, contending that the question posed only sought to determine whether members of the panel harbored any bias based solely on the accusations of child cruelty.
Moreover, two members of the panel voluntarily expressed to the court their reservations concerning personal bias and impartiality based solely on the сharges against Withrow. They were subsequently excused for cause. Thus it is highly probable that the limitation upon voir dire did not contribute to the verdict and that no harm occurred to Withrow. Hunt v. State,
3. Withrow next аsserts that the trial court erred in its charge on criminal intent. We disagree.
In her eighth request to charge, Withrow sought the following pattern instruction:
This defendant will not be presumed to have acted with criminal intent, but you may find such intention (or the absence of it) upon consideration of the words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted.
Here, the court’s instruction was a verbatim recitation but for the omission of the parenthetical “(or the absence of it).” Withrow сontends that this omission constitutes reversible error. Other parts of the charge, however, included that it was “solely” within the discretion of the jury to draw or not to draw the inference that Withrow’s actions were intentional. Such instructions, taken as a whole, sufficiently informed the jury of their option to find a lack of criminal intent on the part of Withrow. Bennett v. State,
4. Withrow also contends that the court erred in sentencing her on three counts of child cruelty. We agree.
OCGA § 16-5-70 (b) provides that “[a]ny person commits the offense of cruelty to сhildren in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” Withrow was charged and convicted of three counts of cruelty to children, one count for each day she failed to procure medical treatment for her daughter. The question, then, is whether Withrow’s continuing neglect — that is, hеr “causing] . . . excessive physical or mental pain” — can be punished as separate “units of prosecution” under the statute. State v. Marlowe,
According to the State, the fact that Withrow’s neglect spanned three days is sufficient to justify three counts of cruelty to children in the first degree against her, each carrying its own punishment. Without evidence of a legislative intent to allow multiplе punishments for the same course of conduct, however, acts that constitute a continuing criminal course of conduct are not punishable separately. Marlowe, supra,
Accordingly, we vacate the convictions and sentences and remand the case to the trial court to merge the three counts into one and to resentence on the surviving count. Ratledge, supra,
Judgment affirmed in part and vacated in part. Case remanded to the trial court for resentencing.