FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 11, 2020
In the Court of Appeals of Georgia
A19A2035. MCFADDEN v. THE STATE.
DOYLE, Presiding Judge.
Following a jury trial, Nevins McFadden1 was found guilty of two counts of
cruelty to children in the first degree, two counts of aggravated battery, aggravated
assault, and two counts of giving a false name, address, or date of birth. The trial court
denied his amended motion for new trial, and McFadden appeals, arguing that (1) the
trial court plainly erred by failing to give a jury instruction on accomplice testimony;
(2) he received ineffective assistance of counsel; and (3) the trial court erred by failing
to merge certain counts at sentencing. For the reasons that follow, we affirm.
1
We note that differing spellings of McFadden’s first name appear in the record
some as “Nevin” while the indictment and judgment of conviction list the spelling as
“Nevins.”
Viewed in the light most favorable to the verdict,2 the evidence shows that the
mother gave birth to L. B. in April 2010, and the two moved from Maryland to
Atlanta in the summer of 2010 with the mother’s parents.3 In October 2010, the
mother and L. B. moved in with a female friend, and around that same time, the
mother enrolled L. B. in a daycare that was run by Tanya Lobo. In late 2010 or early
2011, the daycare needed a teacher, so the mother began working there; Lobo became
L. B.’s godmother, and the mother and L. B. also moved in with Lobo for a few
months before moving into their own apartment.
In the early morning hours of August 26, 2012, the mother took L. B. to an
emergency room because L. B. was lethargic, unreactive, pale, and limp, and she had
vomited blood. The mother reported to emergency room personnel that L. B. had
fallen on the playground earlier in the week and had not been acting like herself, so
the mother had taken the child to a hospital on August 22 at which time a computed
tomography (“CT”) scan was performed but had revealed no injury. Based on this
2
See Walker v. State, 348 Ga. App. 273 (1) (821 SE2d 567) (2018), quoting
Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004), citing Jackson v. Virginia,
443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
3
L. B.’s biological father was not involved with her at this time. And at the
time of the events herein, the mother’s family of origin had moved out of Georgia.
2
history and the child’s lack of response to stimulus, the emergency room doctor
ordered another CT scan, which revealed an occipital skull fracture (a depression
fracture on the back of her head) and bleeding in her brain near the fracture. The
doctor also observed dried blood in the child’s left ear canal and bruising on the ear
itself, a bruise on her forehead, a few small scratches, and blood in the white of her
right eye. The doctor intubated L. B. in order to protect her airway in case her
condition deteriorated, and she was transported via helicopter to a local children’s
hospital. At the children’s hospital, L. B. was found to have liver injuries, lung
contusions, and injuries to her buttock, including a human bite mark.
The mother testified that she met McFadden after moving out of Lobo’s home
and began a relationship with him that was good at first; they were not in a
relationship long before they moved in together on August 1, 2012, after which time
he complained about her spending time with L. B. or about L. B. whining and crying.
The mother’s relationship with McFadden quickly deteriorated during the month of
living together, and in the week leading up to the incident, they got into an argument
in which he strangled and kicked her and bit her ear so hard that she thought he
would bite it off; he also pulled her gun out of the closet and threatened her with it;
and he threatened her not to call the police on him. On Tuesday evening prior to the
3
incident, the mother left the child sleeping at home with McFadden there while she
went to the grocery store and a fast food restaurant and returned to find L. B. crying
uncontrollably and McFadden yelling to never leave her with him again. L. B. had
scratches on her face and McFadden indicated that she probably scratched herself
with the mother’s cuticle scissors, which the mother testified were in a location L. B.
would not have been able to reach. The next morning, the mother took L. B. to the
hospital because she threw up and had blood in her ear, and the mother wanted to
check on her; she did not call the police or report what had happened that evening
because she was frightened, instead telling hospital attendants that L. B. had fallen on
the playground.
The mother testified that on August 25, she and McFadden got into an
argument about rent because he felt he should not have to pay for L. B.’s portion, he
wanted to move into the child’s bedroom and have the mother and L. B. share a room,
and he wanted to simply be roommates with the mother. Eventually it was determined
that McFadden would stay through the end of the month (based on his previous
payment of half the rent) and then leave; but around 2:00 a.m., McFadden woke the
mother to discuss their relationship. The mother heard what she believed to be L. B.
whimpering, and she found L. B. in a pool of vomit mixed with blood; she took L. B.
4
to the bathroom to clean her, but the child was unresponsive. The mother testified that
she believed driving to the hospital would be faster than calling for an ambulance, and
McFadden drove them but stayed in the car.
The mother testified that initially she believed that the doctors had missed
something from the April 22 hospital visit, and she was not aware that L. B. had
sustained additional injuries since that time. The mother testified that she drove
McFadden home while L. B. was airlifted to the children’s hospital because he
demanded to go home, and she proceeded to the children’s hospital to be with L. B.;
upon arriving, she was questioned by a social worker and multiple doctors. She
admitted that she was not forthcoming with information about McFadden when she
was interviewed, and she gave a fake name for him because she was afraid. The
mother’s various interviews were played for the jury, and she testified to her state of
mind and her interactions with McFadden during that time frame; after her first
interview, she called the detective working on the case and provided McFadden’s real
name, and during her third interview, she admitted she was dishonest about the story
she had told about L. B. getting injured on the playground. After providing detectives
with this information, she assisted them in speaking with McFadden in person by
luring him to the apartment while officers were there.
5
Lobo testified that L. B. had come to daycare on Monday prior to her
hospitalization and was fine, but she had not attended Tuesday or Wednesday, at
which point Lobo had called the mother, who told her that L. B. had fallen down at
the playground. On that Friday, L. B. had been at daycare and Lobo had noticed
scratches on her face. The mother did not go to work that day, and instead she stayed
at the daycare; Lobo observed that the mother had lost a lot of weight and looked
depressed. The mother acknowledged that she had a new boyfriend, but Lobo did not
know how long they had been together; Lobo had observed over the course of the
previous three or four months that the mother had lost weight and was becoming more
reserved. Lobo observed that while L. B. had not changed her behavior toward the
mother over the last few months and was very clingy toward the mother, L.B. started
to object to going home and instead wanted to stay at the daycare at the end of the
day. Lobo testified that prior to the weekend of L. B.’s hospitalization, the mother and
Lobo made plans for the mother and L. B. to spend the weekend at Lobo’s home for
a long visit, but the mother called and canceled because she said L. B. was catching
a cold. Lobo never had concerns about the mother’s parenting, she described the
mother as spoiling and loving L. B. L. B. continued to attend the daycare through
August 27, 2012, at the time of the incident giving rise to the charges against
6
McFadden. The mother’s supervisor at her job during the incident testified that the
mother was a model employee until about two months prior to her daughter’s
hospitalization, at which point the mother became withdrawn, was often tardy or
absent, and was not like herself.
The State also presented the testimony of Dr. Thomas David, a doctor of
dentistry who holds an appointment as a forensic odontology consultant with the State
of Georgia Medical Examiner’s Office and with the crime lab. David explained during
his expert voir dire that forensic dentistry was the application of dentistry to the law,
and he was board certified in the field. David testified that he had been certified as an
expert in dentistry and forensic dentistry between 30 or 40 times in cases in Georgia,
between 15 to 20 of those cases being criminal matters, and he had testified on behalf
of both the State and the defense in different matters. The trial court accepted him as
an expert in forensic dentistry without objection from McFadden.
David testified that he compared two sets of teeth from casts given to him by the
State with pictures of bite mark injuries that appeared on L. B. David was able to
exclude the mother as the biter to have made the marks on L. B. based on a number
of discrepancies in the tooth placement compared to the appearance and spacing of the
teeth in the bite mark injuries, but he could not exclude McFadden’s as having been
7
the biter based on his lower tooth arch. On cross-examination, David admitted that
bite mark analysis was not a precise science, and there were some parallels with
fingerprint comparison. The State also presented experts to testify regarding domestic
violence situations and child abuse.
The detective who interviewed the mother and McFadden testified that during
his interview, McFadden was very aggressive and not calm. The interview was played
for the jury, and McFadden initially gave his name as Christopher McFadden and then
gave his name as Antonio Johnson. The detective also identified pictures of the
apartment, including blood and vomit in the child’s bed and a hole in a wall that
looked like it was made by a fist that the mother said was made by McFadden. In his
interview, McFadden stated that he came to the apartment at 8:00 p.m. on the night
of the incident, went to sleep, and was awakened to the mother screaming about L. B.
being injured; he denied knowing what had happened to the child on any of the dates
in question.
After McFadden was charged in the case, he was released on bond and fitted
with an ankle monitor. On May 6, 2015, his ankle monitor registered an alarm for
tampering, he failed to respond to monitoring service phone calls, and he missed an
appearance for this case. Thereafter, a bench warrant was issued for him, but
8
McFadden was not apprehended until September 2015 (the trial occurred in
December 2015).
At the close of the State’s case, McFadden moved for a directed verdict, which
the trial court denied, and McFadden presented no witnesses in his defense. The jury
found McFadden guilty on all counts.
1. McFadden first argues that the trial court committed plain error by failing to
charge the jury on the law requiring corroboration of accomplice testimony because
there was at least slight evidence that the mother was his accomplice, and thus, her
testimony was not sufficient absent corroboration to establish a fact. We disagree.
The trial court instructed the jury that “[t]he testimony of a single witness, if
believed, is sufficient to establish a fact. Generally, there’s no legal corroboration
requirement of a witness, provided you find the evidence to be sufficient.” Under
OCGA § 24-24-8, however, if “the only witness is an accomplice, the testimony of a
single witness shall not be sufficient [though] corroborating circumstances may
dispense with the need for the testimony of a second witness[.]” McFadden did not
request that the accomplice-corroboration charge be given to the jury, nor did he
object to its omission.
9
In the context of jury instruction errors, plain errors are evaluated
on appeal under the following four-part test: First, there must be an error
or defect — some sort of deviation from a legal rule — that has not been
intentionally relinquished or abandoned, i.e., affirmatively waived, by
the appellant. Second, the legal error must be clear or obvious, rather
than subject to reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary case means he
must demonstrate that it affected the outcome of the trial court
proceedings. Fourth and finally, if the above three prongs are satisfied,
the appellate court has the discretion to remedy the error — discretion
which ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.4
We find the Georgia Supreme Court’s decision in Vasquez v. State5 instructive
in this instance. In Vasquez, the Court determined that because the defendant had
made a tactical choice to argue that the later-alleged accomplice was the sole
perpetrator of the crimes, the defendant had intentionally relinquished his right to an
accomplice-corroboration instruction and could not establish plain error.6 Here,
although there was slight evidence that McFadden and the mother could have had an
4
(Punctuation omitted.) Vasquez v. State, 306 Ga. 216, 225 (2) (830 SE2d
143) (2019), quoting State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).
5
306 Ga. at 229-231 (2) (c).
6
See id.
10
accomplice relationship, defense counsel testified at the motion for new trial hearing
and explained that the strategy she and McFadden pursued was that McFadden was
not involved in causing L. B.’s injuries or in covering up any crime in any capacity.
His theory of the case was that the mother was solely responsible for the child’s
injuries and that the mother was not a credible witness, as established by the multiple
statements she gave to police, including repeatedly lying about the reasons for her first
visit to the hospital. Accordingly, like the defendant in Vasquez, McFadden
intentionally relinquished the right to have the accomplice-corroboration instruction
presented to the jury, and therefore, “[t]his claim of error . . . fails the first step of
plain error review.”7
2. McFadden next argues that he received ineffective assistance of counsel.
To obtain relief based on ineffective assistance of counsel [pursuant to
Strickland v. Washington,]8 an appellant must show both that his
counsel’s performance was constitutionally deficient and that this
deficient performance prejudiced him. . . . To prove deficient
performance, [McFadden] must show that his attorney performed at trial
in an objectively unreasonable way considering all the circumstances and
in the light of prevailing professional norms. To show prejudice,
7
Id. at 231 (2) (c).
8
466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).
11
[McFaddden] must prove that his lawyer’s error was so serious as to
deprive him of a fair trial, a trial whose result is reliable. To that end, an
appellant must show a reasonable probability sufficient to undermine
confidence in the outcome that, but for counsel’s alleged unprofessional
errors, the result of the proceeding would have been different. An
appellant must prove both prongs of the Strickland test, and if he fails to
prove one prong, it is not incumbent upon this Court to examine the
other prong. In reviewing either component of the inquiry, all factual
findings by the trial court will be affirmed unless clearly erroneous.9
(a) McFadden first contends that his counsel was ineffective for failing to object
to introduction of bad character evidence, namely the mother’s testimony that he
physically assaulted her, threatened her, and pulled a gun on her in the days leading
up to L. B.’s injury, as well as failing to object to introduction of the mother’s
temporary protective orders taken out against McFadden after the incident. In its order
denying McFadden’s motion for new trial on this issue, the trial court found that any
objection to the evidence would have been fruitless because the evidence was
“appropriately admitted for consideration by the jury.”10
9
(Citations and punctuation omitted.) Williams v. State, 305 Ga. 776, 778 (2)
(827 SE2d 849) (2019), quoting Anthony v. State, 303 Ga. 399, 410 (9) (811 SE2d
399) (2018).
10
“The failure to make a meritless objection cannot serve as a ground for an
ineffective assistance claim.” Faulkner v. State, 295 Ga. 321, 326 (4) (758 SE2d 817)
12
The general requirements for the admission of evidence of other
acts under Rule 404 (b) are relevance to an issue other than character,
admissibility to the extent that the evidence is sufficient to permit a jury
to conclude by a preponderance of proof that the defendant actually
committed the other acts, and passing muster under Rule 403, which
weighs the relevance of evidence of other acts against, inter alia, unfair
prejudice to the defendant; application of the bar of Rule 403 is
principally a matter of the trial court’s discretion but is an extraordinary
remedy which should be used only sparingly.11
We agree that some of this evidence may have been initially excluded by the
trial court on direct-examination of the mother had McFadden objected. Nevertheless,
based on McFadden’s trial strategy and questions posed in cross-examination of the
mother, the evidence was admissible in response to the attacks on her credibility and
in order to explain why she withheld information from police.12 Accordingly,
McFadden has failed to meet his burden under Strickland, and the trial court did not
err by denying his motion for new trial as to this issue.
(2014).
11
Davis v. State, 302 Ga. 576, 581 (2) (805 SE2d 859) (2017).
12
See id. See also Strother v. State, 305 Ga. 838, 845-847 (4) (b) & (c) (828
Ga. App. 327) (2019).
13
(b) Next, McFadden contends that his trial counsel was ineffective for failing
to challenge expert testimony regarding bite mark analysis under Harper v. State.13
Under the longstanding precedent of Harper, scientific evidence
is not admissible in criminal cases unless the procedure or technique in
question has reached a scientific stage of verifiable certainty. It is the role
of the trial court to determine whether a scientific procedure or technique
constitutes competent evidence under Harper, and the trial court’s
determination will not be disturbed absent a clear abuse of discretion.
The trial court may make this determination from evidence presented to
it at trial by the parties; in this regard expert testimony may be of value.14
Nevertheless, as the trial court concluded, this expert testimony was based on
observation, skill, and the experience of comparing dental impressions to records of
purported bite marks. The expert did not conclude that McFadden was the individual
who bit the child, but testified that he could not rule out McFadden as the biter based
on the visual appearance of McFadden’s teeth and spacing in his jaws compared to the
impressions of teeth that appeared on the child’s skin. Given that expert testimony
based solely on an expert’s observation of physical objects and appearance generally
13
249 Ga. 519 (1) (292 SE2d 389) (1982).
14
(Punctuation omitted.) Reinhard v. State, 331 Ga. App. 235, 239-240 (3)
(770 SE2d 314) (2015), quoting Fortune v. State, 304 Ga. App. 294, 298 (2) (696
SE2d 120) (2010).
14
does not constitute evidence that is subject to the Harper test,15 McFadden has failed
to establish that his counsel’s failure to raise such an objection was unreasonable, and
therefore, the trial court did not err by denying his motion for new trial on this issue.16
3. Finally, McFadden contends that the trial court erred by failing to merge two
counts of child cruelty in the first degree with two counts of aggravated battery.
OCGA § 16-1-7 (a) provides: [w]hen the same conduct of an
accused may establish the commission of more than one crime, the
accused may be prosecuted for each crime. He may not, however, be
convicted of more than one crime if: (1) One crime is included in the
other; or (2) The crimes differ only in that one is defined to prohibit a
designated kind of conduct generally and the other to prohibit a specific
15
See Reinhard, 331 Ga. App. at 240 n.3, citing Belton v. State, 270 Ga. 671,
673 (4) (512 SE2d 614) (1999) (explaining that “the comparison of shoe prints to the
external physical characteristics of particular shoes is not a matter of scientific
principle or technique” to which Harper does not apply).
16
See Reinhard, 331 Ga. App. at 240 n.3. See also Ridley v. State, 290 Ga.
798, 800 (2) (725 SE2d 223) (2012) (bite mark analysis); Cromartie v. State, 270 Ga.
780, 787 (18) (514 SE2d 205) (1999) (shoe print evidence); Belton, 270 Ga. at 673-
674 (4) (visual comparison of shoe prints); Salinas v. State, 313 Ga. App. 720, 722-
724 (1) (722 SE2d 432) (2012) (visual identification of narcotics); Jefferson v. State,
312 Ga. App. 842, 849-850 (2) (c) (720 SE2d 184) (2011) (addressing an expert’s
testimony regarding her examination of duct tape on the microscopic level and
explaining which portions should have been subject to a Harper analysis and which
portions were admissible under Belton). We note that defense counsel provided a
thorough cross-examination of the expert, which included numerous questions
directed at undermining the reliability of bite-mark comparison.
15
instance of such conduct. Whether offenses merge is a legal question,
which we review de novo.17
McFadden was charged with one count of cruelty to children in the first degree
requiring proof that McFadden caused L. B. cruel or excessive physical pain by
fracturing her skull, and he was charged with a second count of cruelty to children in
the first degree for causing L. B. cruel or excessive physical pain by lacerating and
bruising her liver.18 Both of those charges required that the State prove L. B. was a
child under the age of 18.19 McFadden also was charged with aggravated battery
related to those same two injuries, which required the State to establish that
McFadden maliciously caused L. B. bodily harm “by seriously disfiguring” a member
of L. B.’s body by fracturing her skull and by lacerating and bruising her liver.20 When
reviewing a similar case, the Georgia Supreme Court found that the crimes of cruelty
to children in the first degree and aggravated battery “require[] proof of at least one
17
(Punctuation omitted.) Womac v. State, 302 Ga. 681, 684 (3) (808 SE2d 709)
(2017) (applying merger test from Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530)
(2006)).
18
See OCGA § 16-5-70 (b).
19
See id.
20
OCGA § 16-5-24 (a).
16
additional element [that] the other does not[, and] the two crimes are not so closely
related that multiple convictions are prohibited. . . .”21 Accordingly, this enumeration
is without merit.
Judgment affirmed. Coomer and Markle, JJ., concur.
21
Waits v. State, 282 Ga. 1, 4-5 (2) (644 SE2d 127) (2007), overruled on other
grounds by State v. Lane, __ Ga. __ (Case No. S19A1424, decided Feb. 10, 2010).
17
Nevins McFadden v. State
Combined Opinion