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Busby v. State

The trial court did not err in failing to merge two counts of aggravated battery under the Family Violence Act, since the evidence was sufficient for a jury to determine that the defendant's 11-week-old daughter was battered more than once in separate incidents.

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A jury convicted Josh Busby of two counts of aggravated battery, aggravated assault, and cruelty to children in the first degree. Following the denial of his motion for new trial, he appeals, arguing that the trial court erred in failing to merge the two aggravated battery charges, and then in failing to merge the aggravated assault charge into the merged battery charges. For the reasons that follow, we affirm.

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. Punctuation and footnote omitted. Hernandez v. State, 317 Ga. App. 845 733 SE2d 30 2012. So viewed, the evidence shows that when Busby and his girlfriend brought their 11-week-old daughter to the emergency room on Saturday, February 9, 2012, the infant had extensive bruises all over her body, her skull was fractured on both sides, and she was having seizures. A physician who was qualified as an expert in assessing abuse and intentional injury to children testified that the baby had suffered a massive head injury and her brain was bruised, bleeding, and swollen. While the fractures would heal, the injury to the brain caused cells to die off, and the physician expected long-term deficits, given all of the baby’s injuries, although she could not be tested cognitively until she grew older.

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