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Shah v. State

The trial court reversibly erred in declining to give defendant's requested jury instruction on reckless conduct as a lesser included offense of first degree cruelty to children, as there was some evidence to support the charge.

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Appellant Jessica Shah was found guilty of felony murder and two counts of first degree cruelty to children in connection with the death of her infant daughter, Alejandra. Because the trial court erred in not granting Appellant’s request for a jury instruction on reckless conduct as a lesser included offense of first degree cruelty to children, we reverse.1

1. a Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. In 2011, Appellant lived in a rented house in Columbus, Georgia, with her five children: Alejandra, a two-year-old son, an eight-year-old son, a ten-year-old son, and a 14-year-old daughter. Alejandra was born on December 5, 2010, about 13 weeks premature. Because of her extreme prematurity, Alejandra had to stay in the hospital for almost eight weeks. According to Appellant, during this stay, she visited Alejandra about twice a day, but hospital staff testified that Appellant was never there in the mornings when the pediatrician, pharmacist, respiratory therapist, nutritionist, and lactation specialist made their rounds and visited Alejandra.

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