THIRD DIVISION

MCFADDEN, C. J.,

DOYLE, P. J., and HODGES, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

September 1, 2020

In the Court of Appeals of Georgia

A20A1356. BROWN v. STATE.

A20A1358. WHITESELL v. STATE.

HODGES, Judge.

Following a joint trial, Darrow Brown and Laura Whitesell were both

convicted by a jury of five counts of cruelty to children resulting from the

malnourished state of those children, as well as the physical abuse of one of the

children. The trial court denied each of their motions for new trial, and Brown and

Whitesell now appeal. We have consolidated the appeals for purposes of issuing a

decision. Whitesell contends that the evidence against her was insufficient to sustain

the verdict. She also contends that the trial court erred by (1) failing to question a

juror before releasing her from the panel; (2) failing to define the term “willfully

deprives” in the jury charges when defining the crime of child cruelty; and (3)
applying the wrong standard for ineffective assistance of counsel. Lastly, she

contends that her trial counsel was ineffective for failing to (1) call some of the child

victims as witnesses; (2) ask the trial court to question the juror released from the

panel; and (3) request a charge on reckless conduct as a lesser included offense. On

appeal, Brown contends that (1) the trial court erred in refusing to admit evidence of

his medical condition to explain his weight loss; (2) the trial court erred in failing to

question a juror before removing her from the panel; and (3) his trial counsel was

ineffective for failing to request a charge on reckless conduct as a lesser included

offense. For the following reasons, we affirm in both cases. 

“On appeal from a criminal conviction, a defendant no longer enjoys the

presumption of innocence, and the evidence is viewed in the light most favorable to

the guilty verdict.” (Citation and punctuation omitted.) Walker v. State, 349 Ga. App.

188 (825 SE2d 578) (2019).

So viewed, the evidence shows that, in 2015, Whitesell was the mother of six

children, including J. W., age 13 ; N. M., age 9; T. M., age 7; and M. B., age 6.

1

In

May 2015, emergency responders received a call to report an unresponsive child at

1 Whitesell and Brown have two younger children together, but the State filed

no charges against the appellants as a result of the condition of those two children,

who were three years old and nine months old in 2015. 

2
an extended-stay motel. They found J. W. unconscious in the bathtub in just a t-shirt

and underwear. She was very frail, with two black eyes that were swollen shut. The

child initially had no pulse, and had very shallow breathing which needed assistance.

Her blood sugar level was also very low. After first responders revived her in the

ambulance, J. W. reported that her eyes were black because both Whitesell and

Brown hit her. 

J. W. arrived at the hospital in critical condition and, after treatment in the

emergency room, was admitted to the pediatric intensive care unit. J. W. reported to

doctors that Whitesell and Brown gave her the black eyes, and that she had trouble

getting food at home and had not eaten in two weeks. Doctors determined that the

trauma to her eyes was consistent with having been punched, and would be unlikely

to occur as a result of a fall. In addition to the black eyes, J. W. had “scattered old

marks, healed marks” on her body. 

J. W. was extremely thin when admitted to the hospital. She weighed only 55

pounds, which is below the third percentile for weight for a girl her age and height.

By comparison, the 50th percentile weight for a 13-year-old girl of J. W.’s height is

110 pounds. Furthermore, J. W.’s body was reacting to not having enough food for

a prolonged period of time. J. W. had a condition called “shock bowel” as well as a

3
small liver, which was not properly functioning, due to dehydration and malnutrition.

She also had encephalomalacia, or wasting of the brain. In addition, J. W. had dark

marks on her joints, indicating that there had been chronic pressure on the joint due

to there being no fat over the bone. Based on J. W.’s demeanor and medical tests,

doctors did not suspect an eating disorder, but they did have concerns that J. W. was

a victim of child abuse. 

As a result of J. W.’s condition, authorities investigated the condition of

Whitesell’s other children. Three of Whitesell’s other children, N. M., T. M., and

M. B., were also underweight. Nine-year-old N. M.’s weight was that of an average

five-year-old; seven-year-old T. M.’s weight was that of an average three-year-old;

and six-year-old M. B.’s weight was that of an average three-and-a-half-year-old. In

comparison to the frailstate of the children, Whitesell and Brown were both a healthy

weight: Whitesell, who was around 5 feet 3 inches tall, weighed 115 pounds, while

Brown was 5 feet 9 inches tall and weighed 185 pounds. 

When interviewed by police, Brown admitted that he hid food in the family van

to keep it away from J. W. and that J. W. would go through the garbage to try to find

food. The Department of Family and Children Services(“DFACS”) also investigated

the case and substantiated the allegations of abuse. J. W. claimed that Whitesell and

4
Brown took drugs and drank alcohol, and Brown admitted that he smoked marijuana

one to two times per week. J. W. told DFACS that she was beaten with a belt, shoe,

pipe, hand, and fist, and that she was deprived of food as a form of punishment. J. W.

was also required to sleep in the bathtub as punishment for stealing food in the home.

Although Whitesell previously received food stamps, she did not show up at her

scheduled interviews to continue receiving them and, as a result, her benefits were

discontinued. When Whitesell lived in Pennsylvania and needed assistance, she

contacted that state’s child protection agency, but she did not reach out to DFACS in

Georgia. None of the school-aged children went to school while in Georgia. Forensic

specialists interviewed J. W. and M. B. and found that their statements were

consistent with children who had witnessed or experienced physical abuse. 

Whitesell and Brown were charged with five counts of cruelty to children in

the first degree. Four of the charges were for willfully depriving the children of

necessary sustenance to the extent that the children’s health and well- being was

jeopardized. The remaining charge was for “cruel and excessive physical and mental

pain by striking [J. W.] with a pipe and/or fists.” Following a jury trial, Whitesell and

Brown were convicted of all charges. The trial court denied both appellants’

respective motions for new trial, and this appeal followed. 

5
Case No. A20A1358

1. Whitesell contends that the evidence against her was insufficient to sustain

the verdict.

2

 We disagree.

In our review of this enumeration,

[w]e start with the legal standard for assessing the legal sufficiency of

evidence to support a conviction. Evidence may be less than

overwhelming, butstill sufficient to sustain a conviction. And when we

consider the evidence’s legal sufficiency, we must put aside any

questions about conflicting evidence, the credibility of witnesses, or the

weight of the evidence, leaving the resolution of such things to the

discretion of the trier of fact. Instead, we must view the evidence in the

light most favorable to the verdict. We inquire only whether any rational

trier of fact might find beyond a reasonable doubt from that evidence

that the defendant is guilty of the crimes of which she was convicted.

(Citations and punctuation omitted.) Eller v. State, 303 Ga. 373, 377-378 (II) (811

SE2d 299) (2018). Moreover, we acknowledge that “[t]he testimony of a single

witness is generally sufficient to establish a fact.” OCGA § 24-14-8. Relevant to this

case,

2

“For convenience of discussion, we have taken the enumerated errors out of

the order in which appellant has listed them . . .” Foster v. Morrison, 177 Ga. App.

250 (1) (339 SE2d 307) (1985).

6
[a] parent, guardian, or other person supervising the welfare of or having

immediate charge or custody of a child under the age of 18 commits the

offense of cruelty to children in the first degree when such person

willfully deprivesthe child of necessary sustenance to the extent that the

child’s health or well-being is jeopardized [and] [a]ny person commits

the offense of cruelty to children in the first degree when such person

maliciously causes a child under the age of 18 cruel or excessive

physical or mental pain.

OCGA § 16-5-70 (a) - (b).

Here, the evidence shows that J. W. was found unconscious, with two black

eyes, no pulse, low blood sugar, and so frail thatshe appeared skeletal. Her condition

was critical and she needed to be treated at the pediatric intensive care unit to survive.

She reported not having eaten in two weeks and that she was deprived of food as a

form of punishment for stealing food in her own home. Her weight was half of what

an average child her age and height should weigh. Doctors opined that, given J. W.’s

condition, her body had gone through a prolonged period without adequate food. She

reported that her black eyes were the result of being hit by both Whitesell and Brown,

and her doctor testified that this injury would unlikely occur as a result of a fall. The

evidence also demonstrated that three of J. W.’s siblings were also considerably

underweight, to the point that their weight was consistent with that of much younger

7
children. In contrast, the evidence revealed that Whitesell and Brown were both a

healthy weight, despite whatever struggles with poverty the family experienced. The

evidence also revealed that the children were not enrolled in school, nor did Whitesell

avail herself of other avenues of government assistance in Georgia which could have

provided food for her children, even though she had prior experience in accessing

such services.

Whitesell does not contest that the victims were underweight and

malnourished; rather, she claims there is no evidence that she had willful intent to

deprive them of food as opposed to a negligent deprivation resulting from extreme

poverty.

3 We are unpersuaded. Whitesell correctly statesthat under Georgia law, “[a]

person will not be presumed to act with criminal intention but the trier of facts may

find such intention upon consideration of the words, conduct, demeanor, motive, and

all other circumstances connected with the act for which the accused is prosecuted.”

OCGA § 16-2-6. Here, however, the evidence authorized a rational trier of fact to find

that, given J. W.’s double black eyes, as well as the dire condition of the victims

3 Although Whitesell purportedly challengesthe sufficiency of the evidence of

all of her convictions, she makes no arguments with respect to her conviction as a

result of striking J. W. with a pipe or fist. Accordingly, any such challenge has been

abandoned. See, e.g., Parrott v. State, 318 Ga. App. 545, 547 (1) n. 3 (736 SE2d 436)

(2012).

8
compared to Whitesell’s healthy condition, her intention was willful such that her

convictions for cruelty to children in the first degree are authorized. See Sanders v.

State, 289 Ga. 655, 657-658 (1) (715 SE2d 124) (2011), overruled on other grounds

by Pounds v. State, No. S20A0470, 2020 Ga LEXIS 477, *12 (3) (Ga., July 1, 2020)

(concluding evidence was sufficient for a rational trier of fact to find appellant guilty

of cruelty to children as a predicate offense for a conviction of felony murder when

there was extensive medical testimony demonstrating extreme malnourishment and

evidence that the victim would have had the same appearance for at least a week

before arriving at the hospital); Coleman v. State, 308 Ga. App. 731, 735 (1) (708

SE2d 638) (2011) (finding that, in light of evidence of child’sseverely malnourished

condition upon arrival at the hospital, “[w]hether the [appellants]wilfully perpetrated

the act causing [the child victim’s] condition was an issue for the jury to resolve” and

the jury was authorized to find the appellant guilty of cruelty to children) (citation

omitted).

2. Whitesell contends the trial court erred in failing to question a juror before

releasing her from the panel. 

In Georgia,

9
the trial court has discretion to replace a juror with an alternate at any

time, whether before or after final submission of the case to the jury,

provided the trial court has a sound legal basis to do so. This Court will

not reverse a trial court’s decision to remove a juror from a panel absent

an abuse of discretion. A sound basis to remove a juror may be one that

serves the legally relevant purpose of preserving public respect for the

integrity of the judicial process. Where the basis for the juror’s

incapacity is not certain or obvious, some hearing or inquiry into the

situation is appropriate to the proper exercise of judicial discretion.

Dismissal of a juror without any factual support or for a legally

irrelevant reason is prejudicial.

(Citations and punctuation omitted.) Smith v. State, 335 Ga. App. 497, 498-499 (1)

(782 SE2d 305) (2016); OCGA § 15-12-172.

Here, prior to the deliberation by the jury, the trial court removed Juror 14 from

the panel and replaced her with an alternate. On two occasions the trial court had to

address Juror 14 for arriving late to court by inquiring why the juror was late and

conveying the importance of her timely arrival. The first time the trial court did not

believe that the juror’s demeanor indicated thatshe appreciated the importance of her

service, and on the second occasion the juror started crying while explaining her

tardiness to the judge. The trial court also had to counsel Juror 14 one day that she

10
was dressed inappropriately for court, but the trial court did not base its decision to

remove Juror 14 on this issue. 

The trial court also noticed Juror 14 appearing to fall asleep on more than one

occasion during the presentation of evidence. At one point, during the testimony of

one of the first responders who treated J. W., the trial court addressed Juror 14 to

wake her up. On a different day of trial, another juror had to nudge Juror 14 to wake

her up, though Juror 14 denied to him that she had been asleep. The trial court was

concerned that Juror 14’s behavior was becoming a distraction to this other juror.

Even if the juror was not actually asleep, the trial court observed thatJuror 14 was not

paying attention to the evidence. The trial court did not address the issue of falling

asleep with Juror 14 again because that would have been the fourth occasion the trial

court had individually chastised the juror. Counsel for both appellants objected to the

removal of Juror 14 from the panel. 

We find that, in light of the numerous issues presented by Juror 14 and the

number of times the trial court had to counsel the juror, the trial court did not abuse

its discretion in removing her from the panel. See Gibson v. State, 290 Ga. 6, 10 (5)

(717 SE2d 447) (2011) (holding that, after the trial court noticed a juror sleeping, and

upon inquiry to him learned that he was taking medication that made it difficult to

11
stay awake, that “[t]he record . . . reflects that the court conducted an investigation

into the juror’s inability to perform his duties and developed a factual basis for its

decision to remove the juror for a legally relevant purpose. Based on this evidence,

we cannot say the trial court abused its discretion in removing the juror. Because the

juror’s incapacity was obviousto both parties, no additional inquiry by the trial court

was required.”) (citations omitted). Moreover, the trial court did not need to conduct

any further inquiry of the juror because the multiple bases for the juror’s removal

were obvious. The trial court’s concern with continuing to single out a specific juror

with whom there were ongoing issues was a valid one. Finally, this juror was

removed prior to jury deliberations, so there is no concern that she was targeted as a

hold-out juror preventing a conviction. See State v. Baker, 351 Ga. App. 725, 728 (1)

(832 SE2d 873) (2019) (“both the need for investigation and the possibility of

harmful error are heightened when a jury has begun deliberations or when a jury is

deadlocked”) (citation and punctuation omitted).

3. Whitesell contends that the trial court erred by failing to define “willfully

deprives” in its jury charges when instructing the jury as to the crime of cruelty to

children in the first degree. We disagree.

12
The trial court charged the jury on the elements of the crime of cruelty to

children in the first degree, stating that

[a] parent, guardian, or other person supervising the welfare of or having

immediate charge or custody of a child under the age of eighteen

commits the offense of cruelty to children in the first degree . . . when

such person willfully deprives a child of necessary sustenance to the

extent that the child’s health or well-being is jeopardized. 

The trial court further defined the term “sustenance,” but did not define the

term “willfully deprives.” Because Whitesell did not request thisterm be defined and

did not object to the charge as given, we review this enumeration for plain error.

Cheddersingh v. State, 290 Ga. 680, 682-683 (2) (724 SE2d 366) (2012).

[T]he test for determining whether there is plain error in jury

instructions under OCGA § 17-8-58 (b) [is] as follows. First, there must

be an error or defect – some sort of deviation from a legal rule – that has

not been intentionally relinquished or abandoned, i.e., affirmatively

waived, by the appellant. Second, the legal error must be clear or

obvious, rather than subject to reasonable dispute. Third, the error must

have affected the appellant’s substantial rights, which in the ordinary

case means [she] must demonstrate that it affected the outcome of the

trial court proceedings. Fourth and finally, if the above three prongs are

satisfied, the appellate court has the discretion to remedy the

error—discretion which ought to be exercised only if the error seriously

13
affects the fairness, integrity or public reputation of judicial

proceedings.

(Citations and emphasis omitted.) Id. at 683 (2).

We find that Whitesell fails the second and third prongs of the plain error

analysis because the “trial court is not required to instruct on the meaning of all words

used in the charge, particularly words of common understanding.” (Citation and

punctuation omitted.) Pippen v. State, 299 Ga. 710, 714 (2) (c) (791 SEd 795) (2016).

“Thus, [Whitesell] has failed to show that not further defining ‘willfully deprives’

was an obvious error or likely affected the outcome of the proceedings.” Id. (finding

no plain error in failing to sua sponte define “willfully deprives” in defining the

elements of the elder cruelty statute). Indeed, looking at the charge as a whole, the

jury was properly instructed that to convict Whitesell of the crime of cruelty to

children in the first degree, the State had the burden to prove the requisite intent

beyond a reasonable doubt as to each victim. See Carr v. State, 350 Ga. App. 461,

467 (2) (829 SE2d 641) (2019) (“It is well established that jury charges cannot be

viewed in isolation. Rather, in determining whethertherewas plain error, jury charges

must be read and considered as a whole.”) (citation and punctuation omitted).

14
4. Lastly, Whitesell contends her trial counsel rendered ineffective assistance

in several regards. Again, we disagree.

In Georgia,

[t]o prevail on a claim of ineffective assistance of counsel, a defendant

must show that counsel’s performance was deficient and that the

deficient performance so prejudiced the defendant that there is a

reasonable likelihood that, but for counsel’s errors, the outcome of the

trial would have been different. Strickland v. Washington, 466 U. S. 668,

687 (III) (104 SCt 2052, 80 LEd2d 674) (1984). If an appellant fails to

meet his or her burden of proving either prong of the Strickland test, the

reviewing court does not have to examine the other prong. In reviewing

the trial court’s decision, we accept the trial court’s factual findings and

credibility determinations unless clearly erroneous, but we

independently apply the legal principles to the facts. Furthermore, there

is a strong presumption that the performance of counsel was within the

wide range of reasonable professional lawyering, and we cannot reach

a contrary conclusion unless defendant successfully rebuts the

presumption by clear and convincing evidence. . . . [D]ecisions

regarding trial tactics and strategy may form the basis for an

ineffectiveness claim only if they were so patently unreasonable that no

competent attorney would have followed such a course.

15
(Citations and punctuation omitted.) Walker, 349 Ga. App. at 192-193 (4). With this

framework in mind, we review Whitesell’s individual enumerations of ineffective

assistance.4

a. Siblings

At trial, J. W. and M. B. testified. The other two victims, N. M. and T. M., did

not testify, nor were their forensic interviews played. The State relied on the

testimony of a doctor who examined them to establish the condition of those children

at the time of Whitesell’s arrest. Whitsell contends her trial counsel was ineffective

for failing to call these children as witnesses in light of purported contradictions in

their forensic interviews. We disagree.

Whitesell’strial counsel testified at the motion for new trial hearing. Although

she initially intended to pursue bringing these victimsfromout-of-state to testify, she

ultimately decided not to do so. She testified that N. M. and T. M. were living with

their father, who was very angry about what happened to the children, and who

refused to speak with anyone on behalf of Whitesell’s defense team. Whitesell’s trial

4

 Whitesell alleges as error the trial court’s failure to use the correct standard

to analyze her ineffective assistance claim, but a review of the trial court’s order

demonstrates that the trial court applied the Strickland standard. Accordingly, this

enumeration leaves nothing further for our review.

16
counsel made the strategic decision not to call these children as witnesses because she

was concerned their testimony, which she would not know in advance, could be

harmful due to coaching or tainting by their angry father. We do not find the strategic

decision not to call these children as witnesses so unreasonable that no competent

attorney would have adopted it. Accordingly, it does not form the basis for a claim

for ineffective assistance of counsel. See, e.g., Howard v. State, 340 Ga. App. 133,

140 (3) (a) (796 SE2d 757) (2017) (“[T]he decision on which defense witnesses will

be called is a matter of trial strategy and tactics and does not usually constitute

ineffective assistance of counsel. Indeed, which witnesses to call and all other

strategies and tactical decisions are the exclusive province of the lawyer after

consultation with his client, and whether an attorney’s trial tactics are reasonable is

a question of law, not fact.”) (citations and punctuation omitted).5

b. Removed Juror

Whitesell contends that her trial counsel was ineffective for failing to request

that the trial court question Juror 14 before removing her from the panel. For the

5 The record is silent as to whether Whitesell’s counsel consulted with her

about the decision not to call these children as witnesses, but this does not change our

analysis because it was Whitesell’s burden to rebut the presumption that her counsel

reasonably represented her. See Walker, 349 Ga. App. at 192 (4).

17
reasons discussed more fully in Division 2, the trial court was not required to

interview Juror 14 before dismissing her from the panel. Accordingly, trial counsel

was not deficient for failing to seek an interview of Juror 14, as the trial court would

have been authorized to exercise its discretion to rejectsuch a request. See Flannigan

v. State, 305 Ga. 57, 61 (2) (b) (823 SE2d 743) (2019) (trial counsel’s performance

was not deficient for failing to impeach a witness with evidence the trial court could

have excluded in its discretion).

c. Jury Charge for Reckless Conduct

Lastly, Whitesell contends that her trial counsel was ineffective for failing to

request a jury charge for reckless conduct given the defense strategy that Whitesell’s

conduct was, at worst, negligent rather than willful. We find that Whitesell suffered

no prejudice.

Georgia’s reckless conduct statute provides that

[a] person who causes bodily harm to or endangers the bodily safety of

another person by consciously disregarding a substantial and

unjustifiable risk that his act or omission will cause harm or endanger

the safety of the other person and the disregard constitutes a gross

deviation from the standard of care which a reasonable person would

exercise in the situation is guilty of a misdemeanor.

18
OCGA § 16-5-60 (b). “[R]eckless conduct may be a lesser included offense of cruelty

to children, if the harm to the child resulted from criminal negligence rather than

malicious or willful conduct.” Shah v. State, 300 Ga. 14, 19 (2) (793 SE2d 81)

(2016).

Whitesell relies on Shah for the proposition that her trial counsel was deficient

for failing to request the jury be charged with the option to convict her of the lesser

included charge of reckless conduct. In Shah, the appellant often relied on her 14-

year-old child to care for her infant, who had medical issues as a result of having been

born prematurely. 300 Ga. at 14-15 (1) (a). The rental home the family lived in had

a malfunctioning air conditioning unit during a period of time when the weather was

very hot. Id. at 15 (1) (a). The appellant left the home and gave the teenager

instructions about feeding the infant; however, the teenager fell asleep, and the next

time anyone checked on the infant she was deceased. Id. The child died of

dehydration and possible hyperthermia. Id. at 14 (1) (b). Although the medical

examiner ruled the death an accident, other physicians testified that the slow weight

gain of the child should have alerted the appellant to a problem and demonstrated

gradualstarvation of the infant.Id. at 15-18 (1) (b). The appellant’s counsel requested

a jury charge of reckless conduct, which the trial court denied. Id. at 19 (2). The

19
Supreme Court reversed, finding that the failure to give the lesser included charge

was harmful because the evidence that the appellant willfully deprived her child of

sustenance was not overwhelming in light of the evidence that she believed that her

teenage daughter was appropriately caring for the infant. Id. at 22 (2) (b).

The procedural posture and facts of Shah are distinguishable from the present

case. First, we are not determining whether the charge of reckless conduct should

have been given – as was the case in Shah – but rather we are determining whether

Whitesell’strial counsel wasineffective for failing to request the charge. Second, the

facts of the present case are far more egregious than those present in Shah. This case

involves four children who were significantly underweight for their ages while

Whitesell maintained a healthy weight. It further shows that Whitesell, who

previously received government assistance to feed her children, abandoned such

assistance and kept the children out of school. One of the children had evidence of

current and past physical abuse, was visibly skeletal at the time of her admission to

the hospital and wassuffering fromconditionsresulting fromhaving inadequate food

for a prolonged period of time, had not eaten in two weeks, was known to steal food

from her own home, and was punished by being deprived of food. In contrast, in

Shah, there was conflicting evidence about the nature of the infant’s death as well as

20
evidence that the appellant believed that someone else was adequately feeding the

child. 

Accordingly, pretermitting whether trial counsel was deficient for failing to

request a jury charge for reckless conduct based on Shah, here, unlike Shah, the

evidence that Whitesell willfully deprived her children of sustenance is

overwhelming. As a result, Whitesell cannot demonstrate that she was prejudiced by

the failure to request the jury charge. See Boccia v. State, 335 Ga. App. 687, 690-691

(1) (782 SE2d 792) (2016) (“If a defendant bases his ineffectiveness claim on trial

counsel’s failure to request a charge on a certain defense, it is irrelevant whether the

trial court would have been required to give such a charge absent a request. Rather,

the appropriate inquiry is whether trial counsel provided deficient representation in

failing to request the charge, and if so, whether the defendant can meet the prejudice

prong of Strickland v. Washington. In making the latter determination, the relevant

inquiry is whether the charge, if it had been requested, was warranted by the

evidence, and if it had been given, whether there is a reasonable probability that it

would have changed the outcome of the trial.”) (citation omitted); see also Daughtry

v. State, 296 Ga. 849, 859 (2) (g) (770 SE2d 862) (2015) (“[W]e conclude that, . . .

because of the overwhelming evidence of Appellant’s guilt, there is not a reasonable

21
probability that, if the trial court had [given] the charge at Appellant’s behest, the

outcome of the trial would have been more favorable to him.”); Glass v. State, 289

Ga. 542, 548 (6) (c) (712 SE2d 851) (2011) (“There is no evidence as to which

witnesses violated the rule [of sequestration] and whether they actually testified or

spoke about their testimony. Moreover, even assuming that trial counsel’s failure to

request a jury charge on violation of the rule constituted deficient performance, Glass

cannot demonstrate prejudice in light of the overwhelming evidence substantiating

his guilt.”) (citation and punctuation omitted). 

Case No. A20A1356

5. Brown contends that the trial court erred in excluding evidence of the heart

attack he suffered in jail, which would have explained his weight loss by the time of

trial. We disagree.

It is not disputed that while in jail awaiting trial on the charges in this case,

Brown suffered a heart attack and lost weight as a result. Brown sought to introduce

evidence of the heart attack to explain his weight loss since the time of his arrest, but

the trial court excluded the evidence asirrelevant. The trial court did permit numerous

witnesses to testify that, at the time of his arrest, Brown weighed less than he usually

did. 

22
Georgia law provides that ‘”relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

OCGA § 24-4-401. “The trial court’s decision whether to admit or exclude evidence

will not be disturbed on appeal absent an abuse of discretion.” (Citation and

punctuation omitted.) Jones v. State, 305 Ga. 750, 751 (2) (827 SE2d 879) (2019).

[I]f an item of evidence has a tendency to help establish a fact in issue,

that is sufficient to make it relevant and admissible. Evidence of

doubtfulrelevancy or competency should be admitted and its weight left

to the jurors. Irrelevant matter, however, should be excluded.

Hickey v. State, 325 Ga. App. 496, 498 (1) (753 SE2d 143) (2013).

Here, the evidence of Brown’s weight loss prior to his arrest was certainly

relevant, as it supported his defense that, in addition to the children, he was also

suffering physical consequences as a result of poverty-induced malnourishment, so

as to suggest that his conduct was not willful. In other words, Brown’s prior weight

as compared to his weight at the time of his arrest was relevant to the issue of intent.

His weight after the time when the crimes against the children occurred, however,

was wholly irrelevant to the issue of intent, or any other issue in the case.

Accordingly, the trial court did not abuse its discretion in keeping this irrelevant

23
evidence from the jury. See Hickey, 325 Ga. App. at 498 (1) (holding that the trial

court did not abuse its discretion in excluding evidence of the comparative

punishments received by the combatants in a prison fight because, contrary to

appellant’s contention, post-fight matters were not relevant to the issue of the

appellant’s intent during the fight).

6. Brown contends that the trial court erred in removing Juror 14 from the

panel. For the reasons discussed more fully in Division 2, this argument is meritless.

7. Lastly, Brown contends that his trial counsel was ineffective for failing to

request a jury charge for the lesser included offense of reckless conduct. As discussed

in Division 4 (c), this argument is without merit.

Judgments affirmed in Case No. A20A1356 and A20A1358. McFadden, C. J.,

and Doyle, P. J., concur.

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