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Final Copy 288 Ga. 131

S10A1207. DRAKE v. THE STATE 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 trial1 contending in his sole enumeration of error that his convictions should be reversed because the jury returned a mutually exclusive verdict. For the reasons that follow, we affirm.

The victim's fatal injuries were inflicted on January 18, 2000. Drake was indicted April 12, 2000 in Gwinnett County and charged with malice murder (Count 1); felony murder (predicated on first degree cruelty to children committed on January 18, 2000) (Count 2); first degree cruelty to children committed on January 18, 2000 (Count 3); first degree cruelty to children committed between September 1, 1999 and January 18, 2000 (Count 4); and giving a false name to law enforcement officers, committed on January 20, 2000 (Count 5). The jury in its verdict filed February 18, 2003 found Drake guilty of involuntary manslaughter in the commission of a misdemeanor as a lesser included offense of malice murder and guilty of the remaining charges. He was sentenced by order filed February 20, 2003 to life imprisonment for felony murder, twenty years to serve concurrent on the Count 4 cruelty to children conviction and twelve months to serve concurrent on the Count 5 conviction; the remaining convictions were merged or vacated. Drake's timely filed motion for new trial, as amended, and his motion to correct sentencing were denied September 8, 2009. A notice of appeal was filed September 14, 2009. The appeal was docketed for the April 2010 term in this Court and was submitted for decision on the briefs.

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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 events of Monday, January 18, 2000, Garceau testified that appellant took Devon into the bathroom that evening so that she could talk privately on the phone. Although the door to the bathroom was closed, Garceau's attention was caught by a "thump or a thud or some kind of bump" from the bathroom. When appellant came out, he left Devon on his stomach on the floor of the bathroom and responded to Garceau's question about the noise by replying, "What, did you think I was in there beating [Devon] or something?" Garceau noticed that, when appellant subsequently retrieved Devon and attempted to play with him, the baby failed to interact in his usual manner despite appellant's efforts to elicit a response and that, unlike earlier in the day, Devon did not sit up on the bed, stand up or eat anything. The next morning when Devon's condition worsened, Garceau testified that appellant initially refused to take the baby to a doctor
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saying he was afraid that he would be arrested "for child abuse or for beating him." Appellant waited until late that evening, when Devon became completely unresponsive with noticeably irregular and shallow breathing, to seek medical help for Devon. Due to the nature of the baby's injuries, hospital personnel contacted the police; when interviewed, appellant gave the police a false name for both himself and his son. In his statements to police, appellant claimed that he had played with Devon on the bed by bouncing the mattress up and down for a five to ten minute period until Devon quit laughing, at which time appellant realized Devon was not coherent. 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
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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
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children in the first degree and giving a false name to law enforcement. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 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 the underlying felony of cruelty to children, rejecting the option of finding him guilty of misdemeanor-involuntary manslaughter as to that charge. 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 SE2d 570) (2003). While guilty verdicts on involuntary
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manslaughter and felony murder are not mutually exclusive as a matter of law, Smith v. State, 267 Ga. 372 (6) (477 SE2d 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 SE2d 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

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