Mikenny v. State

Where the a count charging the defendant with the predicate felony contained all of the necessary elements of the predicate offense, the defendant's indictment for felony murder based on the predicate count comported with due process requirements.

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After the death of eight-month old Danyale Graves, the grand jury indicted Michael Mikenney for malice murder, two alternative counts of felony murder while committing child cruelty, and four separate counts of cruelty to children. The jury found him guilty on the two felony murder counts and on one of the cruelty to children counts. The trial court entered judgment of conviction as to one of the felony murder counts and, concluding that the other crimes merged therein, sentenced him to a single term of life imprisonment. After the trial court denied a motion for new trial, Mikenney brings this appeal. 1 1. “A person . . . commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.” OCGA § 16-5-1 c. Here, the underlying felony was child cruelty, and OCGA § 16-5-70 b provides, in relevant part, that an accused commits that crime when he “maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” Thus, it was not necessary for the State to prove that Mikenney intended to kill the child if he maliciously caused her excessive pain. See Holliman v. State , 257 Ga. 209, 210 1 356 SE2d 886 1987.

Of the counts charging the defendant with felony murder by violating OCGA § 16-5-70 b, Count Two alleged that he caused the death of the victim “by injuring the child’s head, chest, and abdomen,” and Count Three alleged that he did so by failing “to get necessary and appropriate medical care for the child’s injury to the abdomen . . . .” However, neither count expressly alleged that he committed the predicate acts of child cruelty maliciously and, for that reason, he contends that the indictment is void and cannot support the conviction for felony murder. See Smith v. Hardrick , 266 Ga. 54, 55 3 464 SE2d 198 1995.

Mikenny v. State

Where the a count charging the defendant with the predicate felony contained all of the necessary elements of the predicate offense, the defendant's indictment for felony murder based on the predicate count comported with due process requirements.

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