McClellan v. State

Appellant Andre Earl McClellan was convicted of three counts of felony murder, as well as their underlying felonies, in connection with the death of his girlfriend’s three-year-old son, Timothy, and two counts of cruelty to children in which the victim was the 19-month-old daughter of his girlfriend. He appeals the judgment of conviction entered on the jury’s guilty verdicts.1

The facts presented in appellant and co-defendant Tangie Alexander’s joint trial are summarized in the opinion affirming Alexander’s convictions for felony murder and cruelty to children. Alexander v. State, 274 Ga. 787 (561 SE2d 64) (2002).

1. McClellan contends the trial court erred in failing to direct verdicts of acquittal on each count in which the jury returned a verdict of guilty. In reviewing a trial court’s denial of a defendant’s motion for directed verdict of acquittal, an appellate court applies the “sufficiency of the evidence” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Moore v. State, 273 Ga. 11 (1) (537 SE2d 334) (2000).

(a) The State presented evidence that both defendants had engaged in physical abuse of the three-year-old victim and that both were in the motel room during the period of time in which the blow that resulted in the child’s death was struck. Each defendant gave statements to police and testified at trial that the other had punched the child, and the jury was instructed on the law concerning parties to a crime. A rational trier of fact was authorized to conclude beyond a reasonable doubt that each was guilty of felony murder, with the underlying felony being cruelty to children. Jackson v. Virginia, supra. See also Green v. State, 266 Ga. 550 (1) (468 SE2d 365) (1996). There was also sufficient evidence to authorize the jury’s return of guilty verdicts in the two additional counts charging appellant with the felony murder of Timothy, with the underlying felonies being aggravated battery (rendering Timothy’s liver useless), and child cruelty (causing Timothy excessive physical pain by lacerating his liver). However, appellant may not be sentenced on all three felony murder counts when only one person was killed because such action improperly subjects appellant to multiple convictions and punishments for one crime. OCGA § 16-1-7 (a); Smith v. State, 272 Ga. 874 (6) (c) (536 SE2d 514) (2000); Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). Accordingly, the case must be remanded to the trial court to exercise its discretion in resentencing appellant.

(b) Since a dissent has been filed, it is necessary to further explain why we are remanding the case to the trial court for resen-tencing. There are two important reasons why this Court should not usurp the trial court’s authority to use its discretion in imposing sentence: (1) there is no ambiguous jury verdict in the case at bar, and (2) our decision in Coe v. State, 274 Ga. 265, 266 (2) (553 SE2d 784) (2001), does not require this Court to invade the province traditionally reserved for the trial court.

The dissent is of the opinion that the “rule of lenity” is applicable to the case at bar and sets out the convictions on which the dissent believes sentences are required to be imposed, leaving the trial court without the ability to exercise its discretion in making this determination. However, neither example of the rule cited by the dissent is applicable here. The rule invoked by a plurality of this Court in Chandler v. State, 257 Ga. 775 (364 SE2d 273) (1988), citing Gee v. State, 225 Ga. 669 (7) (171 SE2d 291) (1969), is that a penal statute providing two possible grades of punishment or penalty for the same offense (i.e., one as a felony and one as a misdemeanor) is uncertain and the defendant is entitled to the lesser of the two penalties contained in the statute. In the case at bar, the felony murder statute provides only felony-grade punishment. OCGA § 16-5-1 (d). In both Thompson v. State, 263 Ga. 23 (2) (426 SE2d 895) (1993), and Briscoe v. State, 263 Ga. 310 (2) (431 SE2d 375) (1993), also cited by the dissent, the Court was faced with a jury verdict that was ambiguous because the jury did not specify which of two or more felonies served as the predicate felony of the felony murder conviction returned by the jury. See also Henderson v. State, 272 Ga. 621 (5) (532 SE2d 398) (2000). “[I\n these circumstances, [there exists] an ambiguity which must be construed in the defendant’s favor. [Cit.]” (Emphasis supplied.) Thompson v. State, supra, 263 Ga. at 25. The Court ruled that, in these cases, the felony most severe in terms of punishment was to serve as the predicate felony, leaving the less severe felonies available for imposition of separate sentences. Id.Id.

In the case at bar, we are not faced with an ambiguous jury verdict since the jury very clearly found appellant guilty of three felony murder counts, each of which specified the predicate felony. Where the indictment charging felony murder specifies one predicate felony, the jury’s return of a guilty verdict on that felony murder count is not ambiguous. See Dennis v. State, 263 Ga. 257 (2) (430 SE2d 742) (1993). Instead, we are faced with the trial court’s imposition of illegal sentences — three sentences for felony murder in a situation where there is but one murder victim. OCGA § 16-1-7 (a); Smith v. State, supra, 272 Ga. at 881. This is not an ambiguity in a jury verdict that must be resolved by imposition of a rule of law; rather, it is an error of law which we determine is best resolved by the exercise of the trial court’s sentencing discretion, and we remand the case to the trial court in order that the trial court may exercise its discretion in determining on which felony murder conviction sentence is to be imposed.2 We recognize that we exercised the discretion properly reserved for the trial court in Coe v. State, 274 Ga. at 266 (2), when we remanded for resentencing a case similar to the one at bar and gave direction on which counts sentences were to be imposed. In reaching the issue of sentencing in Coe, we were simply trying to provide assistance to the trial court in an effort to dispose of the case in an expeditious manner. Our gratuitous effort in that case should not be misconstrued as establishing a policy of appellate sentencing, and we decline to establish such a policy here. To the extent, if any, that Thompson can be interpreted as holding to the contrary, it is hereby disavowed and should no longer be followed.

2. Appellant was also convicted of cruelty to a child in the first degree with Alexander’s 19-month-old daughter, Sterling, as the victim. First degree cruelty makes it unlawful for a person to maliciously cause a child under age 18 cruel or excessive physical or mental pain. See OCGA § 16-5-70 (b). The State presented evidence that Sterling was placed in protective custody at an emergency children’s shelter within hours of her brother’s death. A pediatric physician who made a physical examination of Sterling the next day testified that Sterling had marks on her legs consistent with being hit with a luggage pull-strap five-ten times in the last five days. She also had bruises on her thighs, chest, torso, and behind her knees. There was evidence that both appellant and the child’s mother had struck the child. The pediatrician stated the blows that left the marks and bruises would have caused the child pain and, while unable to say whether the pain could be described as extreme or excessive, said it would result in the child crying. What constitutes cruel or excessive physical pain is for the jury to determine. Hopkins v. State, 209 Ga. App. 376 (1) (434 SE2d 74) (1993). Taking into account the age of the child, the extent of her injuries, and the testimony that infliction of the blows that caused the injury would have been painful enough to the child to have caused her to cry, we conclude the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant caused the child to suffer cruel or excessive pain. See Sims v. State, 234 Ga. App. 678 (1) (507 SE2d 845) (1998). See also Alexander v. State, supra.

3. Appellant was also convicted of cruelty to a child in the second degree, with Sterling as the victim. The evidence was sufficient to authorize appellant’s conviction. Id.

Judgment affirmed in part and vacated and remanded in part.