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Final Copy 289 Ga. 655 S11A0729. SANDERS v. THE STATE. S11A0947. THOMAS v. THE STATE.

CARLEY, Presiding Justice. Appellants Jade Sanders and Lamont Thomas were tried jointly before a jury. Both Appellants were found guilty of the malice murder of their infant son Crown Shakur by failing to seek necessary and adequate medical attention for him and involuntary manslaughter during the commission of reckless conduct by depriving the child of necessary sustenance, which was a lesser included offense of a second malice murder count. Appellants were also found guilty of two counts of felony murder during the commission of cruelty to children in the first degree and two separate counts charging those underlying offenses. One child cruelty count charged that Appellants willfully deprived the child of necessary sustenance to the extent that his health and well-being were jeopardized, and the other child cruelty count charged that Appellants maliciously caused the child cruel and excessive physical and mental pain by failing to seek necessary and adequate medical attention for him.

Treating the felony murder verdicts as surplusage, the trial court entered judgments of conviction on the malice murder verdicts, merged the remaining counts, and sentenced both Appellants to life imprisonment. Appellants filed separate motions for new trial. The trial court denied Thomas' motion but granted Ms. Sanders' motion based on ineffective assistance of trial counsel only as to the charge of malice murder, finding that because of counsel's deficient performance there was a reasonable probability that the jury would have returned a different verdict on malice murder as to Ms. Sanders but not on the remaining counts. Thereafter, the trial court vacated Ms. Sanders' malice murder conviction, entered a new judgment of conviction only on the first felony murder verdict, and again sentenced her to life imprisonment. Separate notices of appeal were filed. We dismissed Thomas' original appeal, as his motion for new trial was untimely and did not toll the time for filing a notice of appeal. However, he was subsequently granted an out-of-time appeal and then timely

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filed a notice of appeal.* The two appeals are consolidated for disposition in this single opinion. 1. Construed most strongly in support of the verdicts, the evidence shows that Appellants were vegans who fed their baby only soy milk and apple juice. When the victim was approximately six weeks old and weighed three and onehalf pounds, Appellants took him to the emergency room, claiming that the child was well until a few minutes earlier. However, the victim was extremely thin and emaciated, with a "skin and bones" appearance and ribs which could easily be seen. He was dirty and was wearing a diaper with dried excrement in it. He was not breathing, had no heartbeat, and was very dehydrated and cool to the touch. The hospital staff was unable to resuscitate the victim. Unlike most The homicide occurred on April 25, 2004, and the grand jury returned a joint indictment on April 10, 2007. The jury found Appellants guilty on May 2, 2007 and the trial court entered judgments of conviction and sentences on May 17, 2007. Ms. Sanders' motion for new trial was filed on May 25, 2007 and amended on July 7, 2008 and on April 1, 2009. Thomas' motion for new trial was filed on March 4, 2008. The trial court entered its order on the motions for new trial on May 13, 2010 and entered the new judgment and sentence against Ms. Sanders on October 13, 2010. Ms. Sanders filed a notice of appeal on November 3, 2010. Thomas first filed a notice of appeal on May 20, 2010, and that appeal was dismissed on September 7, 2010. He was granted an out-of-time appeal on February 16, 2011, and he timely filed a notice of appeal on February 23, 2011. The appeals of both Appellants were docketed in this Court for the April 2011 term and were submitted for decision on the briefs.
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parents with a child in critical condition, Appellants were unemotional. At trial, Thomas volunteered that the food for the baby was very expensive, and Ms. Sanders admitted that she had not told coworkers about her pregnancy. Extensive medical testimony showed the victim's need of medical attention and his condition of extreme malnourishment or starvation, which was not caused by cystic fibrosis since the victim did not have that disease, which included the absence of subcutaneous fat and the process of cannibalization by his own body, and which, regardless of any disease, caused his death. The expert testimony also showed that the victim would have had the same general appearance for at least a week before his death. The medical examiner testified that the victim did not suffer from the most common forms of metabolic disorders typically associated with sudden infant deaths, did not show signs of any digestive abnormalities, was unable to fight infections because of his advanced state of malnourishment which led to bronchopneumonia resulting in his death, and would have been able to recover if he had been provided with the proper nourishment and antibiotics. Ms. Sanders argues that the circumstantial evidence was insufficient to support the verdicts against her and to prove the requisite intent. She was
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ultimately convicted of felony murder during the commission of child cruelty in the first degree as defined in OCGA

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