Long v. State

FINAL COPY

                   S20A0785. LONG v. THE STATE.


      NAHMIAS, Presiding Justice.

      Appellant Jennifer Long was convicted of malice murder and

first-degree child cruelty in connection with the death of her 18-

month-old daughter, Alexis Long. Appellant contends that the

evidence was insufficient to support her convictions and that her

trial counsel provided ineffective assistance. We affirm.1

      1. (a) Viewed in the light most favorable to the verdicts, the

evidence presented at Appellant’s trial showed the following. After

they could not conceive a child, Appellant and her husband, Timothy


      1 The crimes occurred on January 29, 2012. In May 2014, a Muscogee

County grand jury indicted Appellant for malice murder, cruelty to children in
the first degree, and felony murder based on first-degree child cruelty.
Appellant was tried from December 7 to 11, 2015. The jury found her guilty of
all counts. The trial court sentenced Appellant to serve life in prison without
parole for malice murder and 20 concurrent years for child cruelty. The felony
murder count was vacated by operation of law, although the court said that it
“merged.” Appellant filed a timely motion for new trial, which she amended
through new counsel in March 2019. After a hearing, the trial court denied the
motion in November 2019. Appellant filed a timely notice of appeal, and the
case was docketed to the April 2020 term of this Court and submitted for a
decision on the briefs.
Long, worked with the Division of Family and Children Services

(DFCS) to adopt a child. Alexis was born in June 2010, and came to

live with the Longs in Columbus around June 2011, after her

biological mother died and her biological father surrendered his

parental rights. Between June and November, DFCS case managers

visited the Longs’ home about every two weeks to check on Alexis,

and the Longs took her for regular checkups by her pediatrician. The

Longs adopted Alexis in November 2011. After that, DFCS stopped

its visits, and the Longs missed Alexis’s scheduled 90-day

pediatrician checkup in January 2012.

      Timothy, who pled guilty to second-degree child cruelty and

agreed to testify for the State in exchange for a reduced sentence,

testified as follows.2 On the morning of January 29, 2012, Appellant

fed Alexis breakfast and got her dressed, and the family drove

together to a church in Griffin where Timothy was a guest preacher.


      2 A person commits first-degree child cruelty when he or she “maliciously

causes a child under the age of 18 cruel or excessive physical or mental pain.”
OCGA § 16-5-70 (b). A person commits second-degree child cruelty when he or
she “with criminal negligence causes a child under the age of 18 cruel or
excessive physical or mental pain.” Id. at (c).
On the way there, Alexis was happy and slept a little in the car.

After the service, the family had lunch with church members; Alexis

ate and played around the church. On the way home, Alexis became

a little fussy. When they got home and Appellant took Alexis out of

her car seat, Alexis had a tantrum, and Appellant took the child into

the house to change her diaper.

     Timothy did not follow Appellant into the house immediately

because, as he was walking inside, he realized that he had a pair of

glasses that he normally left in the car in his pocket, so he went to

put them back. While he was at the car, he heard a loud noise that

sounded like furniture being moved; the noise seemed to come from

the direction of Alexis’s room but could have come from a nearby

neighbor’s house. When Timothy went into his house, he asked

Appellant if she had heard a noise; she said no, but that there was

something wrong with Alexis. Alexis was lying on the floor of her

room, and it looked like she had vomit in her mouth. When Timothy

sat her up, she threw up. She was breathing heavily, looked droopy,

and was unresponsive to her name. He called 911 and started doing
CPR. He described Alexis’s condition to the dispatcher, and the

dispatcher told him to stop CPR because she could hear Alexis

breathing. EMTs arrived soon after and took Alexis to a Columbus

hospital. Timothy and Appellant followed.

     The doctor who treated Alexis when she arrived at the hospital

testified that her pupils did not react well and she was minimally

responsive to painful stimuli. A CT scan of Alexis’s head showed that

she had a subdural hematoma. She was stabilized and transferred

to Egleston Children’s Hospital in Atlanta. Shortly after she arrived

there, she was put on a ventilator. Alexis was determined to be brain

dead the next day, and she was taken off the ventilator; she died the

day after that. The medical examiner determined that Alexis’s cause

of death was blunt force trauma to the head. Significant trauma to

Alexis’s head caused a large amount of blood to collect inside her

head and her brain to swell; she also had bleeding inside her eyes.

In addition, Alexis had multiple bruises all over her body, which

were varying colors, indicating that they were different ages.

     On the evening after Alexis was taken to the hospital, with
Timothy’s consent, police officers searched the Longs’ house. They

found and photographed a broken wooden changing table in Alexis’s

room. The table’s support arm and padded top surface were broken,

a broken piece was still attached to the top surface, another piece

was lying on the floor, and small wood chips from the table were on

the floor and in a storage basket on the lower shelf. Hangers and a

box of “Scar Zone Bruise Cream” were lying on top of the changing

table pad. Two more boxes of bruise cream were on a table in the

living room.

     Appellant and Timothy were interviewed by Columbus police

officers at the hospital soon after Alexis was brought in and again at

the police station the next day. At the hospital, Timothy gave an

account similar to the one described above, although he did not

mention hearing a noise while he was at the car. Appellant gave the

following account. On the way home from the church, Alexis was a

little fussy; Appellant thought that she might have been hungry. As

they got closer to the house, Alexis began to cry more loudly. When

they got home, Appellant took Alexis out of the car seat and into
Alexis’s room, where she sat Alexis on the ground in “timeout.” She

did not leave Alexis in the room unattended. At some point during

the timeout, Alexis went limp and her eyes partially closed.

Appellant placed her hand on Alexis’s head and side and eased

Alexis down to the floor. Appellant called for Timothy, who was

bringing things in from the car. Timothy picked up Alexis, who had

vomit coming out of her mouth, called 911, and performed CPR on

Alexis. Appellant said that Alexis had several bruises because Alexis

fell a lot and that she had bought bruise cream to help heal the

bruises. The interviewing officer testified that Appellant spoke as if

she were talking about an object and not a child and that she was

“callous” and emotionless both during the interview and when she

was allowed to see Alexis.

      At the police station the following day, Timothy repeated the

story he had given at the hospital, but added that he had heard a

noise like furniture being moved while he was back at the car.3


      3 At trial, Timothy explained that after the first interview he had been

thinking very hard, trying to remember every little detail about the incident,
Timothy also said that about two or three weeks before the fatal

incident, Appellant told him that a main support piece of Alexis’s

changing table had broken. He described the support as a single

piece of wood that came across beneath the changing surface.

Timothy said that they had been using the changing table only to

store diapers and were changing Alexis on the floor.

     At the police station, Appellant initially repeated the story that

she had told at the hospital. However, near the end of the three-hour

interview, Appellant said that she put Alexis onto the changing table

(rather than on the ground). A few minutes later, Appellant said

that she threw Alexis onto the changing table, and when she did so,

the table made a loud sound and Alexis stopped crying.

     Dr. Stephen Messner, a child abuse pediatrician, was asked to

consult on Alexis’s case on the day after she arrived at Egleston

Hospital. Dr. Messner gave the following testimony about Alexis’s

injuries. Alexis’s scalp had some areas of very thin hair, as well as


and that he remembered the noise when he was being questioned at the police
station. He said that when he was at the hospital, he had been more concerned
about what was going on with Alexis.
hairs of different lengths, which indicated trauma, such as the hair

being pulled and broken. There were some short, curved scabs and

swelling on the back of her head. Alexis had a bruise within her ear,

which was unlikely to be accidental and was indicative of trauma.

Alexis had a number of retinal hemorrhages, which indicated

significant trauma, such as a high-speed motor vehicle crash or

falling multiple stories. Alexis had fluid underneath the skin on the

back of her head, and significant swelling of the brain, which

indicated that she had a brain injury. These injuries must have been

sustained a short time before she was taken to the hospital, because

someone with this type of head injury would not be able to walk, run

around, eat, or interact as Alexis had done at the church. Alexis’s

parents did not report any accidental trauma that would have

caused such severe head injuries, and the injuries were not

consistent with a toddler who was tossed about a foot onto a padded

changing table.

     Alexis also had various bruises on her forehead, cheek, arms,

sternum, thighs, shins, and back of her legs. Many of these bruises
were not consistent with typical toddler bruises caused by tripping

and falling. Alexis also had rectangular bruises on her chest and

legs, indicative of being struck by an object of the same shape. In

addition, Alexis had some linear bruises, consistent with being

struck by a long object such as a clothes hanger. Overall, Alexis’s

injuries indicated an ongoing pattern of abuse in the household.

      Dr. Messner spoke with Timothy, Appellant, and Alexis’s

maternal grandmother. Dr. Messner showed the grandmother

photos of the visible injuries on Alexis’s face, and she said that those

bruises were not present when she saw Alexis at the church. When

Dr. Messner showed Timothy photos of many of Alexis’s bruises,

Timothy said that he had not seen them before.4 When Dr. Messner

showed Appellant the photos, she said she had never seen those

bruises before but that she recognized one bruise on Alexis’s leg

which may have been from when Alexis fell one or two weeks before.


      4 At trial, Timothy testified that he bathed or changed Alexis only once

in a while and that Appellant was always home with Alexis while he was at
work. He said that any time he saw a new bruise on Alexis, Appellant
attributed it to a fall. He added that Alexis did fall and bump into things a lot,
because she had just learned how to walk and run.
Appellant also said that Alexis fell a lot. When Dr. Messner told

Timothy that Alexis had suffered blunt force trauma to the head,

Timothy said that he had no idea how it happened. When Dr.

Messner told Appellant that Alexis was going to die from her

injuries, Appellant said, “I hate to hear that”; her demeanor was

“flat” and emotionless.

     Dr. Messner visited and took screenshots of Appellant’s

Facebook page on January 30. One photo that Appellant posted in

December 2011 shows some bruises on the side of Alexis’s forehead

and cheek. Dr. Messner testified that these bruises were not

accidental injuries because they were on fleshy parts of the child’s

face. On January 4, 2012, Appellant posted, “my child has one bad

temper . . . she thru [sic] a tantrum yesterday evening,” and later

commented, “[h]er tantrums don’t last long after Tim punishes her.”

Another photo, posted nine days before the fatal incident, shows

bruising on the side of Alexis’s face underneath her right eye and

some hair loss at the top of her head. Appellant wrote a comment on

another photo from the same date that said, “[S]he fell and has a
couple scratches on her face.”

     At trial, Appellant called seven witnesses to testify regarding

her character: her mother and father, who live in Griffin; her sister,

who lives in Lawrenceville; her aunt and grandmother, who live in

Michigan; and two long-time family friends, who live in Griffin. The

character witnesses generally testified that Appellant was gentle,

soft-spoken, a loving mother, and a nonviolent person. Appellant’s

aunt and grandmother acknowledged that they lived in Michigan

while Appellant was growing up in Griffin and only saw Appellant

about once a year. Appellant’s grandmother further acknowledged

that she had never met Alexis.

     Appellant also testified at trial, giving a modified version of the

final story she told during her interview at the police station. She

claimed that when she and Alexis went in the house after returning

from church, Alexis walked into her room on her own, and Appellant

then sat her on the changing table. When Appellant turned around

to get some clothes for Alexis, Alexis fell off the changing table onto

the hardwood floor. Appellant acknowledged that she did not
mention this fall in either of her interviews. She said that she had

been confused and did not want to admit that she put Alexis on the

broken changing table. Appellant admitted on cross-examination

that one of the reasons she did not take Alexis to her pediatrician

after her October 2011 checkup was because Appellant knew the

doctor would suspect child abuse.

     (b) Appellant argues that the evidence presented at her trial

was circumstantial and insufficient under OCGA § 24-14-6 to

support her convictions. OCGA § 24-14-6 says, “To warrant a

conviction on circumstantial evidence, the proved facts shall not only

be consistent with the hypothesis of guilt, but shall exclude every

other reasonable hypothesis save that of the guilt of the accused.”

However,

     [w]hether an alternative hypothesis raised by the
     defendant is “reasonable” is a question committed
     principally to the jury, and where the jury is authorized
     to find that the evidence, though circumstantial, was
     sufficient to exclude every reasonable hypothesis save
     that of the guilt of the accused, we will not disturb that
     finding unless it is insupportable as a matter of law.

Smith v. State, 

 (

) (2020) (citation and
punctuation omitted).

     Appellant asserts that the evidence did not exclude the

reasonable hypothesis that Timothy killed Alexis. Although the

evidence did not show exactly how Alexis’s fatal injuries were

inflicted, Timothy said consistently that he was out by the car at the

time those injuries occurred, whereas Appellant admitted that she

was alone in the room with Alexis and changed her story about what

she did to Alexis several times, each time giving an account that was

dubious in light of the physical and medical evidence. Viewed as a

whole, the evidence was sufficient for the jury to reject as

unreasonable the hypothesis that Timothy killed Alexis and instead

to find that Appellant was responsible. See, e.g., Smith, 

. See also Vega v. State, 

 (

) (2009)

(“‘It was for the jury to determine the credibility of the witnesses and

to resolve any conflicts or inconsistencies in the evidence.’” (citation

omitted)).

     Appellant also argues that the evidence was insufficient as a

matter of constitutional due process for a rational jury to find that
she was guilty beyond a reasonable doubt of malice murder and

cruelty to children because the jury should not have believed

Timothy and the evidence about the broken changing table was not

significant. But as we have explained many times, when evaluating

the sufficiency of the evidence, “[w]e do not resolve conflicts in the

evidence or determine the credibility of witnesses; instead, we view

the evidence in the light most favorable to the verdict, with

deference to the jury’s assessment of the weight and credibility of

the evidence.” Chavez v. State, 

 (

)

(2020) (citation and punctuation omitted). Viewed in this way, the

evidence    presented     at    trial   and   summarized        above    was

constitutionally sufficient. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979); Smith, 

; Virger

v. State, 

 (

) (2019); Gomez v. State, 

 (

) (2017).5


      5 In this case, Appellant argues that the evidence was constitutionally

insufficient. But we remind litigants that this Court will end its practice of
considering the sufficiency of the evidence sua sponte in non-death penalty
cases with cases docketed to the term of court that begins in December 2020.
     2. Appellant argues that her trial counsel provided ineffective

assistance by failing to object to the State’s improper closing

argument and by presenting an unreasonable defense theory to the

jury. To succeed on these claims, Appellant must establish that her

counsel’s performance was professionally deficient and that she

suffered prejudice as a result. See Strickland v. Washington, 

 (

, 80 LE2d 674) (1984). To show deficient

performance, Appellant must show that counsel performed “in an

objectively unreasonable way considering all the circumstances and

in the light of prevailing professional norms.” Gaston v. State, 

 (

) (2020) (citation and punctuation

omitted). To show prejudice, Appellant must show “a reasonable

probability that, in the absence of counsel’s deficient performance,

the result of the trial would have been different.” 

 We need not

address both parts of this test if Appellant makes an insufficient

showing on one. See Lupoe v. State, 

 (

)



See Davenport v. State, 

 (

) (2020). This Court
began assigning cases to the December term on August 3, 2020.
(2016).

     (a) Appellant argues that her trial counsel should have objected

during the State’s closing argument when the prosecutor questioned

why Appellant called as character witnesses relatives and friends

who did not live in Columbus or have regular interactions with her,

rather than people who may have had more frequent and recent

interactions with her, such as her minister, boss, co-workers, and

Facebook friends. This argument, however, was permissible because

“‘the prosecutor may properly draw inferences in his argument from

the nonproduction of witnesses.’” McGee v. State, 

(

) (1990) (citation omitted). See also Isaac v. State, 

 (

) (1994) (holding that the prosecutor’s

closing argument about the appellant’s choice of character

witnesses, including observing that he did not call certain people

such as his unit commander and chaplain, was permissible because

“a prosecutor may draw inferences in his argument from the

nonproduction of witnesses”). “Because the prosecutor’s comments

during closing arguments were within the bounds of permissible
argument, trial counsel’s failure to make a meritless objection to the

State’s closing argument is not evidence of ineffective assistance.”

Gaston, 

 (citation and punctuation omitted).

      (b) Appellant also argues that the defense theory presented by

her counsel at trial was so unreasonable that it constituted

ineffective assistance. At the request of Appellant’s counsel, the jury

was    instructed   on   the   law   of   accident   and   involuntary

manslaughter, and counsel highlighted both concepts in his opening

statement and closing argument. Counsel also pointed to Timothy

as the most likely perpetrator of Alexis’s ongoing abuse, highlighting

the testimony about Appellant’s good character and the fact that

Timothy entered a plea deal to avoid more serious punishment.

      Appellant argues that her trial counsel should have done more

medical research to allow a better theory to be presented to the jury.

However, Appellant has not demonstrated what further medical

investigation would have revealed or articulated the supposedly
superior defense theory that counsel should have pursued.6 Thus,

Appellant has failed to establish prejudice. See Lupoe, 

 (“To show prejudice on a claim that trial counsel failed to

adequately investigate the case, [the appellant] had to at least

make a proffer as to what additional investigation would have

uncovered, and not merely speculate that such information exists

and would have made a difference.” (citation and punctuation

omitted)).

      Judgment affirmed. All the Justices concur.



                       Decided September 8, 2020.

     Murder. Muscogee Superior Court. Before Judge Mullins.
     Lindsey M. Brown, for appellant.
     Julia F. Slater, District Attorney, George E. Lipscomb II,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Matthew B. Crowder,
Assistant Attorney General, for appellee.




      6 Appellant requested additional time after the hearing on her motion for

new trial to submit a supplemental affidavit from a pediatric neuroradiologist.
Although the trial court granted Appellant one month to submit the affidavit,
Appellant never filed it.