FOURTH DIVISION

DOYLE, P. J.,

COOMER and MARKLE, JJ.

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.

http://www.gaappeals.us/rules

March 11, 2020

In the Court of Appeals of Georgia

A19A2035. MCFADDEN v. THE STATE.

DOYLE, Presiding Judge.

Following a jury trial, Nevins McFadden

1 was found guilty of two counts of

cruelty to children in the first degree, two counts of aggravated battery, aggravated

assault, and two counts of giving a false name, address, or date of birth. The trial court

denied his amended motion for new trial, and McFadden appeals, arguing that (1) the

trial court plainly erred by failing to give a jury instruction on accomplice testimony;

(2) he received ineffective assistance of counsel; and (3) the trial court erred by failing

to merge certain counts at sentencing. For the reasons that follow, we affirm.

1We note that differing spellings of McFadden’s first name appear in the record

some as “Nevin” while the indictment and judgment of conviction list the spelling as

“Nevins.”
Viewed in the light most favorable to the verdict,

2

the evidence shows that the

mother gave birth to L. B. in April 2010, and the two moved from Maryland to

Atlanta in the summer of 2010 with the mother’s parents.3

In October 2010, the

mother and L. B. moved in with a female friend, and around that same time, the

mother enrolled L. B. in a daycare that was run by Tanya Lobo. In late 2010 or early

2011, the daycare needed a teacher,so the mother began working there; Lobo became

L. B.’s godmother, and the mother and L. B. also moved in with Lobo for a few

months before moving into their own apartment.

In the early morning hours of August 26, 2012, the mother took L. B. to an

emergency room because L. B. was lethargic, unreactive, pale, and limp, and she had

vomited blood. The mother reported to emergency room personnel that L. B. had

fallen on the playground earlier in the week and had not been acting like herself, so

the mother had taken the child to a hospital on August 22 at which time a computed

tomography (“CT”) scan was performed but had revealed no injury. Based on this

2 See Walker v. State, 348 Ga. App. 273 (1) (821 SE2d 567) (2018), quoting

Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004), citing Jackson v. Virginia,

443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

3 L. B.’s biological father was not involved with her at this time. And at the

time of the events herein, the mother’s family of origin had moved out of Georgia.

2
history and the child’s lack of response to stimulus, the emergency room doctor

ordered another CT scan, which revealed an occipital skull fracture (a depression

fracture on the back of her head) and bleeding in her brain near the fracture. The

doctor also observed dried blood in the child’s left ear canal and bruising on the ear

itself, a bruise on her forehead, a few small scratches, and blood in the white of her

right eye. The doctor intubated L. B. in order to protect her airway in case her

condition deteriorated, and she was transported via helicopter to a local children’s

hospital. At the children’s hospital, L. B. was found to have liver injuries, lung

contusions, and injuries to her buttock, including a human bite mark.

The mother testified that she met McFadden after moving out of Lobo’s home

and began a relationship with him that was good at first; they were not in a

relationship long before they moved in together on August 1, 2012, after which time

he complained about her spending time with L. B. or about L. B. whining and crying.

The mother’s relationship with McFadden quickly deteriorated during the month of

living together, and in the week leading up to the incident, they got into an argument

in which he strangled and kicked her and bit her ear so hard that she thought he

would bite it off; he also pulled her gun out of the closet and threatened her with it;

and he threatened her not to call the police on him. On Tuesday evening prior to the

3
incident, the mother left the child sleeping at home with McFadden there while she

went to the grocery store and a fast food restaurant and returned to find L. B. crying

uncontrollably and McFadden yelling to never leave her with him again. L. B. had

scratches on her face and McFadden indicated that she probably scratched herself

with the mother’s cuticle scissors, which the mother testified were in a location L. B.

would not have been able to reach. The next morning, the mother took L. B. to the

hospital because she threw up and had blood in her ear, and the mother wanted to

check on her; she did not call the police or report what had happened that evening

because she was frightened, instead telling hospital attendants that L. B. had fallen on

the playground.

The mother testified that on August 25, she and McFadden got into an

argument about rent because he felt he should not have to pay for L. B.’s portion, he

wanted to move into the child’s bedroomand have the mother and L. B. share a room,

and he wanted to simply be roommates with the mother. Eventually it was determined

that McFadden would stay through the end of the month (based on his previous

payment of half the rent) and then leave; but around 2:00 a.m., McFadden woke the

mother to discuss their relationship. The mother heard what she believed to be L. B.

whimpering, and she found L. B. in a pool of vomit mixed with blood; she took L. B.

4
to the bathroomto clean her, but the child was unresponsive. The mother testified that

she believed driving to the hospital would be faster than calling for an ambulance, and

McFadden drove them but stayed in the car.

The mother testified that initially she believed that the doctors had missed

something from the April 22 hospital visit, and she was not aware that L. B. had

sustained additional injuries since that time. The mother testified that she drove

McFadden home while L. B. was airlifted to the children’s hospital because he

demanded to go home, and she proceeded to the children’s hospital to be with L. B.;

upon arriving, she was questioned by a social worker and multiple doctors. She

admitted that she was not forthcoming with information about McFadden when she

was interviewed, and she gave a fake name for him because she was afraid. The

mother’s various interviews were played for the jury, and she testified to her state of

mind and her interactions with McFadden during that time frame; after her first

interview,she called the detective working on the case and provided McFadden’s real

name, and during her third interview, she admitted she was dishonest about the story

she had told about L. B. getting injured on the playground. After providing detectives

with this information, she assisted them in speaking with McFadden in person by

luring him to the apartment while officers were there.

5
Lobo testified that L. B. had come to daycare on Monday prior to her

hospitalization and was fine, but she had not attended Tuesday or Wednesday, at

which point Lobo had called the mother, who told her that L. B. had fallen down at

the playground. On that Friday, L. B. had been at daycare and Lobo had noticed

scratches on her face. The mother did not go to work that day, and instead she stayed

at the daycare; Lobo observed that the mother had lost a lot of weight and looked

depressed. The mother acknowledged that she had a new boyfriend, but Lobo did not

know how long they had been together; Lobo had observed over the course of the

previous three or four months that the mother had lost weight and was becoming more

reserved. Lobo observed that while L. B. had not changed her behavior toward the

mother over the last few months and was very clingy toward the mother, L.B. started

to object to going home and instead wanted to stay at the daycare at the end of the

day. Lobo testified that prior to the weekend ofL. B.’s hospitalization, the mother and

Lobo made plans for the mother and L. B. to spend the weekend at Lobo’s home for

a long visit, but the mother called and canceled because she said L. B. was catching

a cold. Lobo never had concerns about the mother’s parenting, she described the

mother as spoiling and loving L. B. L. B. continued to attend the daycare through

August 27, 2012, at the time of the incident giving rise to the charges against

6
McFadden. The mother’s supervisor at her job during the incident testified that the

mother was a model employee until about two months prior to her daughter’s

hospitalization, at which point the mother became withdrawn, was often tardy or

absent, and was not like herself.

The State also presented the testimony of Dr. Thomas David, a doctor of

dentistry who holds an appointment as a forensic odontologyconsultant with the State

ofGeorgia Medical Examiner’s Office and with the crime lab. David explained during

his expert voir dire that forensic dentistry was the application of dentistry to the law,

and he was board certified in the field. David testified that he had been certified as an

expert in dentistry and forensic dentistry between 30 or 40 times in cases in Georgia,

between 15 to 20 of those cases being criminal matters, and he had testified on behalf

of both the State and the defense in different matters. The trial court accepted him as

an expert in forensic dentistry without objection from McFadden.

David testified that he compared two sets ofteeth fromcasts given to himby the

State with pictures of bite mark injuries that appeared on L. B. David was able to

exclude the mother as the biter to have made the marks on L. B. based on a number

of discrepancies in the tooth placement compared to the appearance and spacing ofthe

teeth in the bite mark injuries, but he could not exclude McFadden’s as having been

7
the biter based on his lower tooth arch. On cross-examination, David admitted that

bite mark analysis was not a precise science, and there were some parallels with

fingerprint comparison. The State also presented experts to testify regarding domestic

violence situations and child abuse.

The detective who interviewed the mother and McFadden testified that during

his interview, McFadden was very aggressive and not calm. The interview was played

for the jury, and McFadden initiallygave his name as Christopher McFadden and then

gave his name as Antonio Johnson. The detective also identified pictures of the

apartment, including blood and vomit in the child’s bed and a hole in a wall that

looked like it was made by a fist that the mother said was made by McFadden. In his

interview, McFadden stated that he came to the apartment at 8:00 p.m. on the night

of the incident, went to sleep, and was awakened to the mother screaming about L. B.

being injured; he denied knowing what had happened to the child on any of the dates

in question.

After McFadden was charged in the case, he was released on bond and fitted

with an ankle monitor. On May 6, 2015, his ankle monitor registered an alarm for

tampering, he failed to respond to monitoring service phone calls, and he missed an

appearance for this case. Thereafter, a bench warrant was issued for him, but

8
McFadden was not apprehended until September 2015 (the trial occurred in

December 2015).

At the close of the State’s case, McFadden moved for a directed verdict, which

the trial court denied, and McFadden presented no witnesses in his defense. The jury

found McFadden guilty on all counts.

1. McFadden first argues that the trial court committed plain error by failing to

charge the jury on the law requiring corroboration of accomplice testimony because

there was at least slight evidence that the mother was his accomplice, and thus, her

testimony was not sufficient absent corroboration to establish a fact. We disagree.

The trial court instructed the jury that “[t]he testimony of a single witness, if

believed, is sufficient to establish a fact. Generally, there’s no legal corroboration

requirement of a witness, provided you find the evidence to be sufficient.” Under

OCGA § 24-24-8, however, if “the only witness is an accomplice, the testimony of a

single witness shall not be sufficient [though] corroborating circumstances may

dispense with the need for the testimony of a second witness[.]” McFadden did not

request that the accomplice-corroboration charge be given to the jury, nor did he

object to its omission.

9
In the context of jury instruction errors, plain errors are evaluated

on appeal under the following four-part test: 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 he

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 affects the

fairness, integrity or public reputation of judicial proceedings.4

We find the Georgia Supreme Court’s decision in Vasquez v. State

5

instructive

in this instance. In Vasquez, the Court determined that because the defendant had

made a tactical choice to argue that the later-alleged accomplice was the sole

perpetrator of the crimes, the defendant had intentionally relinquished his right to an

accomplice-corroboration instruction and could not establish plain error.6 Here,

although there was slight evidence that McFadden and the mother could have had an

4

(Punctuation omitted.) Vasquez v. State, 306 Ga. 216, 225 (2) (830 SE2d

143) (2019), quoting State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

5

306 Ga. at 229-231 (2) (c).

6 See id.

10
accomplice relationship, defense counsel testified at the motion for new trial hearing

and explained that the strategy she and McFadden pursued was that McFadden was

not involved in causing L. B.’s injuries or in covering up any crime in any capacity.

His theory of the case was that the mother was solely responsible for the child’s

injuries and that the mother was not a credible witness, as established by the multiple

statements she gave to police, including repeatedly lying about the reasonsfor her first

visit to the hospital. Accordingly, like the defendant in Vasquez, McFadden

intentionally relinquished the right to have the accomplice-corroboration instruction

presented to the jury, and therefore, “[t]his claim of error . . . fails the first step of

plain error review.”

7

2. McFadden next argues that he received ineffective assistance of counsel.

To obtain relief based on ineffective assistance of counsel [pursuant to

Strickland v. Washington,]

8

an appellant must show both that his

counsel’s performance was constitutionally deficient and that this

deficient performance prejudiced him. . . . To prove deficient

performance, [McFadden] mustshow that his attorney performed at trial

in an objectivelyunreasonable wayconsidering allthe circumstances and

in the light of prevailing professional norms. To show prejudice,

7

Id. at 231 (2) (c).

8

466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

11
[McFaddden] must prove that his lawyer’s error was so serious as to

deprive him of a fair trial, a trial whose result is reliable. To that end, an

appellant must show a reasonable probability sufficient to undermine

confidence in the outcome that, but for counsel’s alleged unprofessional

errors, the result of the proceeding would have been different. An

appellant must prove both prongs of the Strickland test, and if he fails to

prove one prong, it is not incumbent upon this Court to examine the

other prong. In reviewing either component of the inquiry, all factual

findings by the trial court will be affirmed unless clearly erroneous.9

(a) McFadden first contends that his counsel was ineffective for failing to object

to introduction of bad character evidence, namely the mother’s testimony that he

physically assaulted her, threatened her, and pulled a gun on her in the days leading

up to L. B.’s injury, as well as failing to object to introduction of the mother’s

temporary protective orders taken out against McFadden after the incident.In its order

denying McFadden’s motion for new trial on this issue, the trial court found that any

objection to the evidence would have been fruitless because the evidence was

“appropriately admitted for consideration by the jury.”

10

9

(Citations and punctuation omitted.) Williams v. State, 305 Ga. 776, 778 (2)

(827 SE2d 849) (2019), quoting Anthony v. State, 303 Ga. 399, 410 (9) (811 SE2d

399) (2018).

10

“The failure to make a meritless objection cannot serve as a ground for an

ineffective assistance claim.” Faulkner v. State, 295 Ga. 321, 326 (4) (758 SE2d 817)

12
The general requirements for the admission of evidence of other

acts under Rule 404 (b) are relevance to an issue other than character,

admissibility to the extent that the evidence is sufficient to permit a jury

to conclude by a preponderance of proof that the defendant actually

committed the other acts, and passing muster under Rule 403, which

weighs the relevance of evidence of other acts against, inter alia, unfair

prejudice to the defendant; application of the bar of Rule 403 is

principally a matter of the trial court’s discretion but is an extraordinary

remedy which should be used only sparingly.

11

We agree that some of this evidence may have been initially excluded by the

trial court on direct-examination ofthemother had McFadden objected. Nevertheless,

based on McFadden’s trial strategy and questions posed in cross-examination of the

mother, the evidence was admissible in response to the attacks on her credibility and

in order to explain why she withheld information from police.

12 Accordingly,

McFadden has failed to meet his burden under Strickland, and the trial court did not

err by denying his motion for new trial as to this issue.

(2014).

11 Davis v. State, 302 Ga. 576, 581 (2) (805 SE2d 859) (2017).

12 See id. See also Strother v. State, 305 Ga. 838, 845-847 (4) (b) & (c) (828

Ga. App. 327) (2019).

13
(b) Next, McFadden contends that his trial counsel was ineffective for failing

to challenge expert testimony regarding bite mark analysis under Harper v. State.

13

Under the longstanding precedent of Harper, scientific evidence

is not admissible in criminal cases unless the procedure or technique in

question hasreached a scientific stage of verifiable certainty. It is the role

ofthe trial court to determine whether a scientific procedure or technique

constitutes competent evidence under Harper, and the trial court’s

determination will not be disturbed absent a clear abuse of discretion.

The trial court may make this determination from evidence presented to

it at trial by the parties; in this regard expert testimony may be of value.

14

Nevertheless, as the trial court concluded, this expert testimony was based on

observation, skill, and the experience of comparing dental impressions to records of

purported bite marks. The expert did not conclude that McFadden was the individual

who bit the child, but testified that he could not rule out McFadden as the biter based

on the visual appearance of McFadden’s teeth and spacing in his jaws compared to the

impressions of teeth that appeared on the child’s skin. Given that expert testimony

based solely on an expert’s observation of physical objects and appearance generally

13 249 Ga. 519 (1) (292 SE2d 389) (1982).

14 (Punctuation omitted.) Reinhard v. State, 331 Ga. App. 235, 239-240 (3)

(770 SE2d 314) (2015), quoting Fortune v. State, 304 Ga. App. 294, 298 (2) (696

SE2d 120) (2010).

14
does not constitute evidence that is subject to the Harper test,

15 McFadden has failed

to establish that his counsel’s failure to raise such an objection was unreasonable, and

therefore, the trial court did not err by denying his motion for new trial on this issue.

16

3. Finally, McFadden contends that the trial court erred by failing to merge two

counts of child cruelty in the first degree with two counts of aggravated battery.

OCGA § 16-1-7 (a) provides: [w]hen the same conduct of an

accused may establish the commission of more than one crime, the

accused may be prosecuted for each crime. He may not, however, be

convicted of more than one crime if: (1) One crime is included in the

other; or (2) The crimes differ only in that one is defined to prohibit a

designated kind of conduct generally and the other to prohibit a specific

15 See Reinhard, 331 Ga. App. at 240 n.3, citing Belton v. State, 270 Ga. 671,

673 (4) (512 SE2d 614) (1999) (explaining that “the comparison ofshoe prints to the

external physical characteristics of particular shoes is not a matter of scientific

principle or technique” to which Harper does not apply).

16 See Reinhard, 331 Ga. App. at 240 n.3. See also Ridley v. State, 290 Ga.

798, 800 (2) (725 SE2d 223) (2012) (bite mark analysis);Cromartie v. State, 270 Ga.

780, 787 (18) (514 SE2d 205) (1999) (shoe print evidence); Belton, 270 Ga. at 673-

674 (4) (visual comparison of shoe prints); Salinas v. State, 313 Ga. App. 720, 722-

724 (1) (722 SE2d 432) (2012) (visual identification of narcotics); Jefferson v. State,

312 Ga. App. 842, 849-850 (2) (c) (720 SE2d 184) (2011) (addressing an expert’s

testimony regarding her examination of duct tape on the microscopic level and

explaining which portions should have been subject to a Harper analysis and which

portions were admissible under Belton). We note that defense counsel provided a

thorough cross-examination of the expert, which included numerous questions

directed at undermining the reliability of bite-mark comparison.

15
instance of such conduct. Whether offenses merge is a legal question,

which we review de novo.

17

McFadden was charged with one count of cruelty to children in the first degree

requiring proof that McFadden caused L. B. cruel or excessive physical pain by

fracturing her skull, and he was charged with a second count of cruelty to children in

the first degree for causing L. B. cruel or excessive physical pain by lacerating and

bruising her liver.18 Both of those charges required that the State prove L. B. was a

child under the age of 18.

19 McFadden also was charged with aggravated battery

related to those same two injuries, which required the State to establish that

McFadden maliciously caused L. B. bodily harm“by seriously disfiguring” a member

of L. B.’s body by fracturing her skull and by lacerating and bruising her liver.20 When

reviewing a similar case, the Georgia Supreme Court found that the crimes of cruelty

to children in the first degree and aggravated battery “require[] proof of at least one

17 (Punctuation omitted.) Womac v. State, 302 Ga. 681, 684 (3) (808 SE2d 709)

(2017) (applying merger test from Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530)

(2006)).

18 See OCGA § 16-5-70 (b).

19 See id.

20 OCGA § 16-5-24 (a).

16
additional element [that] the other does not[, and] the two crimes are not so closely

related that multiple convictions are prohibited. . . .”

21 Accordingly, this enumeration

is without merit.

Judgment affirmed. Coomer and Markle, JJ., concur.

21 Waits v. State, 282 Ga. 1, 4-5 (2) (644 SE2d 127) (2007), overruled on other

grounds by State v. Lane, __ Ga. __ (Case No. S19A1424, decided Feb. 10, 2010).

17