Webb v. State

The trial court erred in refusing to allow the testimony of a witness, whom was on the state's witness list, but not the defendant's.

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A jury convicted Kassie Webb of the lesser-included offense of cruelty to children in the second degree.1 In her sole enumeration of error, Webb contends that the trial court erred by refusing to allow testimony by a witness whom she failed to identify on her witness list without a showing of bad faith and harm to the State and where the witness was identified as a potential witness by the State on the State’s supplemental witness list. We agree and reverse. Construed in favor of the verdict,2 the evidence shows that on April 23, 2006, Webb, along with her husband, Rocky, and other family members, celebrated the first birthday of her daughter, K. W., at the home of Webb’s parents. After visiting her husband’s family and stopping at a restaurant, Webb, Rocky, and K. W. returned to Webb’s sister’s home where they were temporarily residing. Rocky and James Alexander, Webb’s sister’s then-boyfriend, sat down in the kitchen while Rocky finished eating, and Webb began to pack a diaper bag for K. W.’s day care. Noticing that K. W. needed her diaper changed, Webb asked Rocky to change it. When Rocky did not do so, Webb told him not to worry about it, picked up K. W., and took her into the adjoining bedroom.

According to Webb, she laid K. W. on the bed while she went to the closet to get a diaper. When Webb turned around, she noticed K. W. had moved close to the edge of the bed. As a result, Webb dove onto the bed and attempted to catch K. W., but she was only able to grab the inseam of K. W.’s shorts as the child fell to the floor, hitting her head. Neither Rocky nor Alexander could see into the bedroom, but both heard a thump and an unusual scream from K. W. Webb picked up K. W., trying to comfort her, and walked back into the kitchen to ask Rocky for K. W.’s pacifier. While looking for the pacifier, Webb noticed that K. W.’s eyes were rolling back into her head, and K. W. began to seize. Webb handed K. W. to Rocky and called her parents for advice. At this point, Alexander suggested they go to the hospital, which they did.

Webb v. State

The trial court erred in refusing to allow the testimony of a witness, whom was on the state's witness list, but not the defendant's.

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