concurring.
I concur with the majority’s affirmance of Wood’s conviction for the felony murder of Mary Ruth Green based on the underlying felony of cruelty to a person 65 years of age or older under OCGA § 16-5-100 (a). I write separately to make clear that under the express language of the statute, the statutory duty giving rise to Wood’s criminal liability arises out of his relationship to Green.
OCGA § 16-5-100 (a) imposes criminal liability upon a “guardian or other person supervising the welfare of or having immediate charge or custody of a person who is 65 years of age or older” when the person willfully deprives such elderly person of “health care, shelter, or necessary sustenance to the extent that the health or well-being of [the elderly person] is jeopardized.”3 In order for criminal liability to arise under the statute, a defendant must stand in a special relationship to the victim such that the defendant is under an existing duty to care for the victim. Specifically, under the express language of the statute, the defendant must either be a person supervising the welfare of or having immediate charge or custody of an elder.
In this case, Wood was charged by indictment with having immediate charge and custody of Green and failing to provide her with health care and necessary sustenance to the extent her health or well-being was jeopardized. Wood argues that he was not a person with charge or custody of Green but merely assisted Dorlon when she needed help moving Green from the bed to a wheelchair. The record in this case demonstrates, however, that Green was a completely dependent, elderly woman living with her daughter, Dorlon, and Wood, Dorlon’s long-time boyfriend, in a home owned by Green but in which Dorlon and Wood had lived for many years. Wood and Dorlon brought Green to live with them in order to obtain control of her monthly Social Security checks which constituted the great majority of their household income. At the time Wood and Dorlon removed Green from the nursing home against her wishes, they were informed of Green’s special needs and were instructed by nursing home staff on the necessity for and method of moving Green and the preparation of her insulin injections. Both Wood and Dorlon assured nursing home personnel they would care for Green. Wood affirmed his willingness to care for Green when he told Dorlon he would do whatever he could to help care for Green. Thus, Wood and Dorlon agreed between themselves and confirmed to others that they would take responsibility for the custody and care of Green. They in fact took control not only of her physical person, but also over her real property and *672income. Wood knew Green was dependent upon others to feed, clean, and move her. He had actual knowledge that Green required, but did not receive, medications, medical attention, and food and water; that her person and physical surroundings had become filthy from human waste and debris to the extent that parts of her body were literally decaying from exposure to human waste; and that the mattress from which she could not move without assistance was soaked through with human urine and feces. Nevertheless, Wood took no steps to assist Green. He did not obtain professional help, he did not care for Green while she resided in the home they shared, and he did not discuss with family members the possibility of making different arrangements for her care.
Decided September 26, 2005. Avrett, Ponder & Barnwell, William B. Barnwell, for appellant. Kermit N. McManus, District Attorney, Thurbert E. Baker, Attorney General, Vonnetta L. Benjamin, Assistant Attorney General, for appellee.Under these facts, the jury was authorized to find that Wood had immediate charge or custody of Green. Although OCGA § 16-5-100 does not define the terms “immediate charge or custody of,” clearly such language was intended to include persons residing with the elder who had been entrusted with the care and custody of the elder either by express agreement or by voluntarily assuming responsibility for such care. As recognized in the majority opinion, courts have similarly interpreted the identical language found in the cruelty to children statute, OCGA § 16-5-70 (a). See Copeland v. State, 263 Ga. App. 776 (1) (589 SE2d 319) (2003).
Because Wood was “a person having immediate charge or custody of’ the elderly Green, and he willfully deprived her of health care and necessary sustenance resulting in her death, he is criminally liable for the felony of cruelty to an elder person under OCGA § 16-5-100 (a).
I am authorized to state that Justice Benham joins in this concurrence.
OCGA § 16-5-100 (a) protects persons 65 years of age and older from neglect. For purposes of brevity, the use of the word “elder” includes the entire protected class.