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Final Copy 290 Ga. 428 S11A1934. SMITH v. THE STATE. S11A1935. MACK v. THE STATE. BENHAM, Justice. Makayla Mack was 30 months old when she died as a result of blunt-force head trauma and strangulation. Both appellant Thomasina Beverly Mack, Makayla's mother, and appellant Demario Steven Smith, appellant Mack's boyfriend at the time the child died, were with the child during the time period within which the fatal injuries were believed to have been inflicted. In a joint trial, appellants were convicted of and sentenced to life imprisonment for the malice murder of the child.1 The testimony of the deputy chief medical examiner who performed an autopsy on the child and medical personnel who examined the child in several hospitals, taken together, established that the child had an indented ligature mark around her neck that was consistent with having been inflicted by a telephone
The child died on December 10, 2008, and a Coweta County grand jury returned a true bill of indictment charging appellants with malice murder, felony murder (with cruelty to a child as the underlying felony) and cruelty to a child on June 1, 2009. Appellants were tried together in a trial that commenced on April 26, 2010, and concluded on April 29, 2010, when the jury returned its verdicts and the trial court imposed sentence. Both appellants were sentenced to life imprisonment on the malice murder conviction, with the felony murder conviction being vacated by operation of law and the conviction for cruelty to a child being merged as a matter of fact into the malice murder conviction. Appellant Mack's motion for new trial, filed on April 29, 2010, and amended on April 21, 2011, was heard on June 30, and denied on July 11. A timely notice of appeal was filed on July 27, 2011. Appellant Smith's motion for new trial, filed on May 3, 2010, also was heard on June 30, 2011 and denied on July 11. Smith filed a notice of appeal on July 18, 2011. Both appeals were docketed in this Court to the September 2011 term of court and submitted for decision on the briefs.
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cord, hemorrhaging in her eyes and around her hyoid bone, both signs of strangulation, and an adult human bite mark on her left arm. She had ear injuries that usually were the result of inflicted trauma, internal injuries to her head, and internal bleeding on the brain. Appellant Mack informed medical personnel the child had suffered several seizures that caused her to hit her head the day before she died, had been scratching herself due to what Mack believed was an allergic reaction, and had been treated for eczema. A cousin of the victim's biological father testified that she had seen appellant Mack spank the child and pull or pinch the child's ears when the child was eight-nine months old. People who were with appellant Mack when she was told her child had died (physicians, social worker, investigator for the GBI medical examiner, the hospital liaison for the Georgia Department of Family and Children Services) testified to Mack's flat affect and lack of emotion upon hearing that the child had died. The social worker testified that, while she was completing an assessment called for when child neglect or abuse is suspected, appellant Mack asked several times if she were going to jail. Appellant Smith told police he had inflicted the bite mark found on the child's arm while tickling the child. At trial, he testified that the child had told him that appellant Mack had bitten her. A forensic dentist testified the bite was "forceful" and would have been painful to the child. Appellant Smith testified that he had seen appellant Mack choking the child with the tie strings of a hat several days before the child died, and had seen Mack strike the child with a leather belt and with her hand. He testified that Mack was with the child just before Smith found the child was not breathing. Smith testified he started
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cardio-pulmonary resuscitation on the child, and acknowledged that, in October 2007, he had revived the same child with CPR when she had been found unresponsive while in his care. 1. Appellant Mack contends the trial court erred when it denied Mack's motion for a directed verdict of acquittal. An appellate court applies the "sufficiency of the evidence" test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) when reviewing a trial court's denial of a motion for directed verdict of acquittal. Bell v. State, 284 Ga. 790 (1) (671 SE2d 815) (2009). Appellant argues the State presented circumstantial evidence that did not exclude all reasonable hypotheses save that of her guilt. See OCGA

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