Houston Wesley Drake was convicted of felony murder, first degree cruelty to children and giving a false name to law enforcement officers in regard to the death of his eleven-month-old son, Devon McCoy. He appeals from the denial of his motion for new trial1 contending in his sole enumeration of error that his convictions should be reversed because the jury returned a mutually exclusive verdict. For the reasons that follow, we affirm. 1. The evidence established that appellant had sole custody of his infant son, Devon. The two were living with Claire Garceau, with whom appellant had become romantically involved in September 1999. Garceau testified that she saw appellant on nearly a daily basis use his hand to cover Devon’s nose and mouth to stop the baby from crying, sometimes blocking the air flow for such a long time that the baby was rendered unconscious. In regard to the events of Monday, January 18, 2000, Garceau testified that appellant took Devon into the bathroom that evening so that she could talk privately on the phone. Although the door to the bathroom was closed, Garceau’s attention was caught by a “thump or a thud or some kind of bump” from the bathroom. When appellant came out, he left Devon on his stomach on the floor of the bathroom and responded to Garceau’s question about the noise by replying, “What, did you think I was in there beating Devon or something” Garceau noticed that, when appellant subsequently retrieved Devon and attempted to play with him, the baby failed to interact in his usual manner despite appellant’s efforts to elicit a response and that, unlike earlier in the day, Devon did not sit up on the bed, stand up or eat anything. The next morning when Devon’s condition worsened, Garceau testified that appellant initially refused to take the baby to a doctor saying he was afraid that he would be arrested “for child abuse or for beating him.” Appellant waited until late that evening, when Devon became completely unresponsive with noticeably irregular and shallow breathing, to seek medical help for Devon. Due to the nature of the baby’s injuries, hospital personnel contacted the police; when interviewed, appellant gave the police a false name for both himself and his son. In his statements to police, appellant claimed that he had played with Devon on the bed by bouncing the mattress up and down for a five to ten minute period until Devon quit laughing, at which time appellant realized Devon was not coherent.
The pediatric emergency-medicine physician testified that, when he questioned appellant about Devon’s injuries, appellant reported only that the victim had fallen three or four days earlier while pulling himself up in the bathtub, striking his chin on the lip of the tub; in the physician’s professional opinion, Devon’s severe injuries were not consistent with such a fall. The pediatric neurosurgeon who treated Devon testified that appellant denied any history at all of trauma other than roughhousing and the normal falls that a child would make. According to the neurosurgeon, Devon’s injuries were caused by his head being shaken back and forth and then hit against a wall or other solid object; that the injuries he observed in Devon did not “leave any doubt but that this is shaken-baby/impact syndrome”; and that, based on the type of injuries Devon sustained, the “symptom onset would have been immediate” such that the baby would not have appeared normal and healthy after the injuries were inflicted. The medical examiner testified that Devon died from craniocerebral trauma, i.e., blunt impacts to the head that resulted in trauma to the scalp, skull and brain, and that these injuries could not be explained either by a fall in a bathtub while Devon was pulling himself up or by being bounced on a bed.
