This appeal is from Eugene Folson, Jr.’s conviction for felony murder, with cruelty to children as the underlying felony, based on the death of Canashus Ricardo Brown, Jr., Folson’s two-year-old stepson.1 The mother of the victim testified at trial that Folson telephoned her at work to say something was wrong with Canashus; that she came home, found Canashus was not breathing, and called 911; and that Folson told her Canashus fell in the bathtub, and was reluctant to give the child to her. A police officer who responded to the 911 call and attempted resuscitation testified the child was cold to the touch and that he noted a knot over the child’s left eye and bruises on his back and chest. The police officer testified Folson told him at the scene that after he bathed the child and let him play with the other children, Canashus became sleepy and Folson put him to bed, and could not wake him later. The medical examiner who performed the autopsy of the victim described the cause of death as loss of blood due to a laceration of the liver caused by blunt force trauma to the abdomen, most likely a punch with a fist. Other injuries to the child included swelling and bruising of his forehead and the right side of his head, a circular bruise on the back of his head, multiple bruises on his torso in patterns suggesting blows with knuckles, bruising in both armpits, and bruising on the chest in a pattern suggesting blows with a strap or slapping with fingers or being held in a firm grip. The medical examiner testified all the bruises on the child’s body occurred at or about the same time and were unlikely to have been caused by accidental trauma because they were in well-protected areas. Appellant testified at trial that when he bathed the child, he left him in the tub to deal with a pot he heard boiling on the stove but returned to the bathroom upon hearing Canashus crying and coughing. Believing the child had fallen under the water, he began to hit the child’s back, then pressed his abdomen in an attempt to perform CPR. He testified Canashus calmed down but continued to whine and refused to eat, and he put him with the other children to play, then returned him to bed when he became sleepy. Folson denied making the statement at the scene to which the police officer testified, but admitted he did not mention at the scene that Canashus had fallen in the bathtub or that he had attempted to perform CPR.
1. The evidence summarized above was sufficient to authorize a rational trier of fact to find Folson guilty beyond a reasonable doubt of felony murder with cruelty to children OCGA § 16-5-70 b as the underlying felony. Jackson v. Virginia , 443 U.S. 307 99 SC 2781, 61 LE2d 560 1979. Folson’s argument that the evidence was not sufficient to show either the excessive pain or the malice required for a conviction for cruelty to children is controlled adversely to him by our holding, based on very similar evidence, in Kennedy v. State , 277 Ga. 588 1 592 SE2d 830 2004: Evidence of the child’s age, the extent of the injuries, the nature of the assault to which the child was subjected, and the force with which the child was struck is sufficient evidence from which a jury, applying generally-accepted societal norms, can conclude whether the defendant caused the child cruel or excessive physical pain. . . . Cits. The mental state of a defendant required to be established to prove cruelty to children is ” ‘the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm might result.’ ” Cit. The jury was authorized to conclude that appellant’s actions were malicious from the evidence that he, an adult, repeatedly struck the two-year-old victim wilfully and wantonly with ” ‘an awareness of a plain and strong likelihood that such harm might result.’ ” Cit. 2. Folson contends the trial court erred in ruling that a statement he made to a police officer was admissible. He bases his contention on his testimony that his right not to incriminate himself was not explained to him until after his statement had been taken, and on inconsistencies on the statement and waiver of rights forms regarding the time the interrogation began and in the testimony of an investigator present during questioning. The interrogating officer explained the time discrepancy by stating his practice was to put the starting time of the interview process on both forms, and both the interrogating officer and the observing investigator testified the interrogating officer explained Folson’s rights to him prior to beginning the interrogation.
