Pineda v. State

The evidence did not support the jury's finding that the defendant was guilty of malice murder of an unborn child, since the only evidence in the record showed that the unborn child was alive solely in the mother's uterus, died due to the mother's death, and never an independent circulation or other evidence of independent existence.

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Narcisco Pascacio Pineda appeals his convictions for malice murder and possession of a firearm during the commission of felonies, in connection with the deaths of Mario Molina, Leonel Lara Vazquez “Vazquez”, Prisca Rosales Vazquez “Prisca”, and the unborn child of Prisca Rosales Vazquez. For the reasons that follow, we affirm in part and vacate in part.1 Construed to support the verdicts, the evidence showed that Pineda and Vazquez had a history of disagreements. On Thanksgiving evening, there was an outdoor social gathering at Vazquez’s home in a mobile home park. Pineda and Molina argued, and Vazquez asked Pineda if he had come to start new arguments or settle old ones. Pineda said “I’m going to kill you” and that he would “finish” them; he produced a pistol, and shot Molina once. He then began to shoot at Vazquez, striking him nine times; he attempted to shoot a bystander, and shot Prisca once; she was pregnant. Molina, Vazquez, and Prisca died as a result of their wounds, and Prisca’s unborn child died as a result of Prisca’s death. Pineda’s son was also shot in the leg.

1. Pineda contends that the evidence was insufficient to support his conviction and sentence for the crime of malice murder in causing the death of Prisca’s unborn child. He is correct. Under OCGA § 16-5-1 a, “a person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” The only evidence was that the unborn child was alive solely in the mother’s uterus, died due to the death of the mother, and never had an independent circulation or other evidence of independent existence. See Shedd v. State , 178 Ga. 653 173 SE 847 1934. Accord Ranger v. State , 249 Ga. 315, 317 1 290 SE2d 63 1982; Logue v. State , 198 Ga. 672 32 SE2d 397 1944. Thus, there was no evidence presented that Pineda committed the crime of malice murder of Prisca’s unborn child.2 Accordingly, the judgement of conviction and sentence for that crime must be vacated.

Pineda v. State

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