MELTON, Justice.
Following a jury trial, Michael Angelo Foster was found guilty of felony murder and first degree cruelty to children in connection with the beating death of fifteen-month-old Malcolm Lewis.
1. Viewed in the light most favorable to the jury's verdict, the record shows that Foster lived with his girlfriend, April Lewis, and Lewis' fifteen-month-old son, Malcolm, at the home of Foster's mother and stepfather. On August 16, 2002, Malcolm was left in Foster's care while Foster's parents and his girlfriend were at work. A friend who came to visit Foster during the day said that he saw Malcolm playing, and another friend who visited in the evening said that the child appeared to be "fine" when she saw him sleeping. Foster was alone with Malcolm for the rest of the evening. That night, Foster took Malcolm to his next door neighbor's house because Malcolm had stopped breathing. Foster claimed that he had left Malcolm alone in the bathtub to answer the telephone and that, when he returned to the bathroom, he found Malcolm lying face down in the tub. However, Malcolm was not wet when Foster brought him to the neighbor's house. One of the neighbors called 911 while another gave Malcolm CPR until emergency responders arrived fifteen to twenty minutes later.
When emergency personnel arrived, Malcolm was unresponsive and had no pulse. Malcolm also had discolorations across his forehead and on his abdomen. Malcolm was taken to Grady General Emergency Room, where a nurse noticed several contusions and discolorations on Malcolm that were consistent with abuse rather than drowning. Malcolm could not be revived.
Dr. Anthony Clark, a GBI medical examiner, performed an autopsy on Malcolm, in which he observed numerous bruises appearing to be knuckle or grip injuries on Malcolm's forehead and an abrasion near his left ear. Malcolm also had a subdural hematoma,
The evidence was sufficient to enable a rational trier of fact to find Foster guilty of the crime of which he was convicted beyond a reasonable doubt.
2. Foster contends that the trial court erred by denying his motion for continuance, made four days before the scheduled trial, in which Foster alleged that he needed time to obtain an independent expert witness to evaluate the autopsy results reached by the State's crime lab. We disagree.
Here, the record reveals that Foster's counsel announced "ready" on the day that the trial began without seeking any ruling on his motion for a continuance. Instead, just before the jury was brought in for opening arguments, counsel requested a ruling on what he referred to only as "the motion," without specifying exactly what motion he was referencing. The trial court responded by denying Foster's motion for a "change of venue," without making any mention of Foster's motion for continuance. Foster did nothing more to pursue any ruling on his motion for continuance. Under such circumstances, counsel abandoned the motion for continuance. See
In any event, even if Foster had not abandoned his motion, Foster's claim of error would still be without merit. Indeed, "[t]he trial court's discretion in granting or refusing a continuance will not be interfered with by the appellate courts unless it clearly appears that the judge abused his discretion." (Citation and punctuation omitted).
All the Justices concur.