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Davis v. State

The evidence supported the defendant's convictions for felony murder and first-degree child cruelty in connection with the death of his girlfriend's 13-month-old daughter, but the trial court erred in failing to merge the child cruelty count into the felony murder conviction for sentencing purposes, as that charge was the predicate for the felony murder conviction.

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Appellant Sean Ohifemi Davis challenges his convictions for felony murder and first-degree child cruelty in connection with the death of his girlfriend’s 13-month-old daughter, Nila Faye Flagler. As explained below, we reject Appellant’s contention that his trial counsel provided ineffective assistance, and we affirm his conviction and sentence for felony murder. However, the trial court should have merged the child cruelty count into the felony murder conviction for sentencing purposes, so we vacate Appellant’s conviction and sentence for child cruelty.1

1. a Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On April 27, 2009, Appellant came to Morrisha McLain’s apartment in Vidalia, Georgia around 9:30 p.m. Appellant and McLain had been dating for a month or so, and he often cared for her children – Nila and her three-year-old brother Amari – while McLain worked the night shift at a nearby convenience store. Around 11:40 p.m., McLain left for work, and Appellant stayed with the children; Nila appeared healthy when McLain left. At about 7:40 a.m. the next morning, Appellant called McLain and told her that Nila was barely breathing and looked like she was having a seizure. McLain left work, calling 911 as she rushed home. When she arrived, she found Nila lying propped up on pillows on her bed; she was not breathing, and McLain started CPR. Moments later, an ambulance arrived, and Nila was taken to a nearby hospital, but she remained unconscious and required assistance to breathe. The child was flown to a hospital in Savannah, where she died the following day.

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