HUNSTEIN, Chief Justice.
Houston Wesley Drake was convicted of felony murder, first degree cruelty to children and giving a false name to law enforcement officers in regard to the death of his eleven-month-old son, Devon McCoy. He appeals from the denial of his motion for new trial
1. The evidence established that appellant had sole custody of his infant son, Devon. The two were living with Claire Garceau, with whom appellant had become romantically involved in September 1999. Garceau testified that she saw appellant on nearly a daily basis use his hand to cover Devon's nose and mouth to stop the baby from crying, sometimes blocking the air flow for such a long time that the baby was rendered unconscious. In regard to the
The pediatric emergency-medicine physician testified that, when he questioned appellant about Devon's injuries, appellant reported only that the victim had fallen three or four days earlier while pulling himself up in the bathtub, striking his chin on the lip of the tub; in the physician's professional opinion, Devon's severe injuries were not consistent with such a fall. The pediatric neurosurgeon who treated Devon testified that appellant denied any history at all of trauma other than roughhousing and the normal falls that a child would make. According to the neurosurgeon, Devon's injuries were caused by his head being shaken back and forth and then hit against a wall or other solid object; that the injuries he observed in Devon did not "leave any doubt but [that] this is shaken-baby/impact syndrome"; and that, based on the type of injuries Devon sustained, the "symptom onset would have been immediate" such that the baby would not have appeared normal and healthy after the injuries were inflicted. The medical examiner testified that Devon died from craniocerebral trauma, i.e., blunt impacts to the head that resulted in trauma to the scalp, skull and brain, and that these injuries could not be explained either by a fall in a bathtub while Devon was pulling himself up or by being bounced on a bed.
Appellant testified at trial that, three or four days prior to January 18, 2000, Devon hurt himself while pulling to a standing position in a bathtub; on January 18, 2000, appellant bounced Devon on the bed as the baby giggled and cooed normally; appellant went into the bathroom with Devon while Garceau was on the phone but Devon sustained no injury during that time and they left together when the phone call ended; that Devon was still very functional that night before bed and the following morning; and that it was not until later in the afternoon that Devon displayed any serious signs that something was wrong.
The evidence adduced was sufficient to enable a rational trier of fact to find Drake guilty beyond a reasonable doubt of felony murder, cruelty to children in the first degree and giving a false name to law enforcement. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The trial court charged the jury on the misdemeanors of reckless conduct, simple battery and battery and instructed the jury that it could find appellant guilty of involuntary manslaughter in the commission of a misdemeanor as a lesser included offense of both malice murder and felony murder. The jury found appellant guilty of misdemeanor-involuntary manslaughter as to the malice murder count, using a verdict form that did not require the jury to identify which of the three charged misdemeanors was the basis for the involuntary manslaughter verdict. However, the jury also found appellant guilty of felony murder based on
Appellant contends that the involuntary manslaughter verdict was mutually exclusive of the guilty verdict for felony murder/cruelty to children. "Verdicts are mutually exclusive `where a guilty verdict on one count logically excludes a finding of guilt on the other. (Cits.)' [Cits.]" Jackson v. State, 276 Ga. 408, 410(2), 577 S.E.2d 570 (2003). While guilty verdicts on involuntary manslaughter and felony murder are not mutually exclusive as a matter of law, Smith v. State, 267 Ga. 372(6), 477 S.E.2d 827 (1996), a mutually exclusive verdict may be rendered in a particular case where the offenses underlying the felony murder and involuntary manslaughter convictions "reflect that the jury, in order to find the defendant guilty [of both offenses], necessarily reached two positive findings of fact that cannot logically mutually exist." (Citations and punctuation omitted.) Flores v. State, 277 Ga. 780, 783(3), 596 S.E.2d 114 (2004). A mutually exclusive verdict results when the jury finds that the defendant acted with both criminal intent and criminal negligence at the same instant regarding the same victim involving the same act. See id. (finding mutually exclusive verdict where appellant was found guilty of both felony murder based on aggravated assault and involuntary manslaughter based on reckless conduct as to a single homicide victim).
Appellant acknowledges that, if the predicate offense found by the jury for involuntary manslaughter was simple battery or battery, which are misdemeanor offenses committed with criminal intent, see OCGA §§ 16-5-23(a), 16-5-23.1(a), then the intent element of the battery offenses would be logically consistent with the mens rea required for the felony offense of cruelty to children on which appellant's felony murder conviction is predicated. See OCGA § 16-5-70(b); Carter v. State, 269 Ga. 420(5), 499 S.E.2d 63 (1998) (involuntary manslaughter based on simple battery not inconsistent with felony murder based on cruelty to children). Appellant, however, points to the fact that the jury here was also charged that it could find involuntary manslaughter based on the underlying misdemeanor of reckless conduct, a misdemeanor offense committed by criminal negligence, OCGA § 16-5-60(b); see also Banta v. State, 282 Ga. 392(5), 651 S.E.2d 21 (2007), which would be logically inconsistent with the criminal intent required of the felony murder/cruelty to children conviction. In the absence of any express notation by the jury identifying the misdemeanor on which it based its involuntary manslaughter verdict, appellant argues that reversal is required because a reasonable possibility exists that the jury returned a mutually exclusive verdict by relying on reckless conduct rather than battery or simple battery for its involuntary manslaughter verdict.
We disagree. While this case presented the potential for a mutually inconsistent verdict, the verdict as returned by the jury eliminated any possibility that the involuntary manslaughter verdict was predicated on reckless conduct. Despite being given the option of finding involuntary manslaughter as a lesser included crime for both the malice murder charge and the felony murder charge, the jury nevertheless chose to find appellant guilty of involuntary manslaughter solely as to the malice murder charge. The jury did so after hearing the trial court's instructions, which clearly differentiated the criminal negligence that was required to prove reckless conduct from the criminal intent required to prove battery and simple battery as well as the cruelty to children felony on which the felony murder count was predicated.
Judgment affirmed.
All the Justices concur.