Eugene Sherman, II, was charged by accusation with criminal trespass, family violence battery, family violence simple battery, and cruelty to children in the third degree arising out of an incident of violence between Sherman and his estranged wife. The jury found Sherman guilty of simple battery and trespass but not guilty on the other charges. Sherman contends the trial court erred with regard to three evidentiary issues and one jury charge. Construed in favor of the verdict the evidence shows that Sherman and his wife Vericka were separated and that they exchanged physical custody of their three children on Sunday afternoons. On Sunday May 25, 2008, Sherman drove to Vericka’s apartment and rang the doorbell, and Vericka, who was on the phone, let him in. Sherman was angry because Vericka was on the phone, and he threw her phone out a window and started choking her. He slammed her on the floor and continued to punch and choke her. An officer witnessed red marks on Vericka’s arm and right elbow. There was evidence that the 10-year-old son heard his parents fighting. Sherman appeared to leave but then hit and broke a window in the children’s room of the apartment in an effort to find one of his children. Sherman admitted breaking the window and having entered through the same window on a prior occasion.
1. Sherman contends the trial court erred by compelling Vericka to testify after she invoked her marital privilege. The trial court ruled that she was required to testify under the statutory exception to the privilege that applies “in proceedings in which the husband or wife is charged with a crime against the person of a minor child. . . .” OCGA § 24-9-23 b. Sherman was charged with cruelty to children in the third degree under OCGA § 16-5-70 d. That Code section outlaws an aggressor from allowing or having knowledge of a child witnessing certain crimes including family violence. A person commits the offense when: 1 Such person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery; or 2 Such person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery. The issue here is whether OCGA § 16-5-70 d is a “crime against the person of a minor child,” given that no physical contact is involved.
