295 Ga. 173
FINAL COPY


                       S14A0537. DYER v. THE STATE.


       HINES, Presiding Justice.

       Following the denial of his motion for new trial, Orlando Dyer appeals his

conviction for felony murder while in the commission of aggravated battery in

connection with the death of his infant daughter, Azyani. He challenges the

sufficiency of the evidence of his guilt, the admission of certain evidence at trial,

and the effectiveness of his trial counsel. For the reasons that follow, the

challenges are unavailing, and we affirm.1

       The evidence construed in favor of the verdicts showed the following.


       1
        The crimes occurred on November 13, 2008. On October 2, 2009, a Cobb County grand jury
returned a six-count indictment against Dyer: Count 1 – malice murder by causing blunt force
trauma to Azyani’s head; Count 2 – felony murder while in the commission of aggravated battery
by rendering Azyani’s brain useless by blunt force trauma; Count 3 – felony murder while in the
commission of cruelty to children in the first degree by causing blunt force trauma to Azyani’s head;
Count 4 – aggravated battery by rendering Azyani’s brain useless by blunt force trauma; Count 5
– cruelty to children in the first degree by causing blunt force trauma to Azyani’s head; and Count
6 – cruelty to children in the first degree by shaking Azyani. Dyer was tried before a jury January
24-29, 2011, and found not guilty on Count 1, but guilty on all remaining counts. On January 29,
2011, he was sentenced to life in prison on Count 2, and the verdicts on Counts 3, 4, 5, and 6, were
found to merge with Count 2 for the purpose of sentencing. A motion for new trial was filed on
February 1, 2011, amended on May 29, 2012, and denied on July 19, 2012. A notice of appeal to
the Court of Appeals was filed on August 13, 2012, and the appeal was transferred to this Court.
The case was docketed in this Court’s 2014 January term, and the appeal was submitted for decision
on the briefs.
In November 2008, Dyer and his wife, Laurievett Calvo-Dyer, lived in an

apartment in Cobb County with their two children: one-year-old Elijah and two-

month-old Azyani. On November 12, 2008, Calvo-Dyer began a new job after

two months of recuperating from Azyani’s birth, and she left for work between

6:00 and 6:30 a.m. Before Calvo-Dyer’s return to work that day, Dyer had not

taken care of Azyani without her being present somewhere in the apartment.

Only Dyer and Calvo-Dyer provided care for Azyani, with Calvo-Dyer being the

primary caregiver. Azyani “cried really hard” unless somebody was holding

her, and at those times, Dyer gave the baby over to Calvo-Dyer.

      Also, on this first day, Calvo-Dyer’s cousin, who had been staying at the

apartment, was present. Calvo-Dyer came home around 2:30 p.m., and Dyer left

for work at 4:30 p.m. He returned home from his job at approximately 12:30

a.m. on November 13, 2008, and went to sleep a few hours later. Between 3:00

and 4:30 a.m., Dyer heard Azyani crying and got up to feed her. Around 6:00

a.m., Calvo-Dyer got up to go to her second day of work and noticed that both

children were fine and safely asleep before she left. Dyer’s brother was also

asleep in the living room.

      Around 11:30 a.m., emergency responders arrived at Dyer’s apartment

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complex in answer to a call from Dyer’s brother that a two-month-old child was

unresponsive; the brother called for help after Dyer asked him to look at the

baby who had blood and foam on her mouth. While responders searched for the

apartment, a car driven by Dyer pulled in front of their vehicle and forced it to

stop. Dyer got out of the car, reached into the back seat, and retrieved the

unresponsive baby girl; the child was not breathing and blood was trickling from

her nose. A responder immediately began to try and resuscitate the infant, and

asked Dyer what had happened. Ostensibly because of a language barrier, Dyer

did not answer. When police arrived, however, he stated in “kind of choppy

English” that he called 911 after he noticed Azyani bleeding from her nose and

choking. As the emergency technicians worked to resuscitate Azyani, Dyer

never showed any emotion, and just stood in the background with his hands in

his pockets; he appeared to be “very nonchalant.”

      Azyani was rushed to a hospital, and en route, the emergency responders

were able to get a slight pulse back in the infant, but she was still not breathing,

was neurologically unresponsive, and was in critical condition. Dyer showed

up at the hospital’s emergency room and told a Spanish-speaking nurse that

Azyani had been sick the week earlier and was fussy and restless that morning,

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that he took the baby from the crib and put her in bed with him, and that later in

the morning he noticed blood coming from her nose; he stated that the baby had

not fallen or suffered any head injuries. Again, Dyer showed no emotion, and

was very calm, displaying a “very flat affect.”

      After tests revealed bleeding next to the baby’s brain and two skull

fractures, she was transferred to a facility with a pediatric intensive care unit.

Once there, it was determined that the child’s injuries were not consistent with

accidental trauma. Tests revealed that the baby had no brain activity, and

subsequently she was declared dead.

      The medical examiner determined that the cause of death was blunt force

trauma to the head and trauma to the torso, evidenced by rib fractures; the

identified multiple injuries were all consistent with blunt head trauma and some

component of shaking. Among the injuries was an L-shaped skull fracture that

indicated a severe blow against a hard surface. Additionally, there were

hemorrhages in Azyani’s upper neck and both eyes that were consistent with her

being held firmly by the neck or shaken. Based on these findings, the manner

of Azyani’s death was determined to be a homicide.

      When Dyer was initially interviewed by police at his apartment, he stated

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that nothing out of the ordinary had happened on the morning of Azyani’s death

and that she had been fine, but he claimed that about a week before, a plastic

box of baby wipes had fallen on the child’s head while she was in her crib, and

that then the baby’s head had “seemed tender.” However, subsequently during

an interview at the police station, Dyer gave a different account. He claimed

that while carrying Azyani after her bath, he slipped on a toy ball and fell to his

knees; that the baby “flew out of his arms,” collided with a closet and fell to the

floor, hitting her shoulder and head; and that about ten minutes later, he noticed

blood and foam coming from Azyani’s mouth. Throughout, Dyer’s demeanor

remained “flat.”

      1. In five separate enumerations of error, Dyer claims that the evidence

was insufficient to sustain his convictions for malice murder, felony murder,

aggravated assault, cruelty to children in the first degree, and “shaking baby

offense” in that the evidence did not exclude every other reasonable hypothesis

except that of his guilt.

      First, Dyer was not convicted of malice murder; indeed, he was acquitted

of the charge. Nor was he charged with or convicted of aggravated assault, or

any offense denominated as “shaking baby offense.” As noted, Dyer was found

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guilty of felony murder while in the commission of aggravated battery by using

blunt force against the baby, so severe that it resulted in trauma which rendered

her brain “useless,” and the remaining charges which were premised upon

aggravated battery and cruelty to children in the first degree. But, he was

sentenced only for the felony murder premised upon aggravated battery. See

footnote 1, supra.

      Second, Dyer cites what he deems to be conflicting expert evidence or

evidence favorable to him. However, as this Court has often stated, it is for the

jury to resolve any conflicts in the evidence and to assess the credibility of

witnesses, and the resolution of any such conflicts adversely to the criminal

defendant does not render the evidence insufficient. Heidt v. State, 292 Ga. 343,

345 (1) (736 SE2d 384) (2013).

      Certainly, a conviction based upon circumstantial evidence requires that

the proven facts not only be consistent with the hypothesis of guilt, but that they

exclude every other reasonable hypothesis save that of the guilt of the accused.

Reeves v. State, 294 Ga. 673 (755 SE2d 695) (2014). However, whether the

evidence does exclude every other reasonable hypothesis is ordinarily a question

for the jury, and this finding by the jury will not be disturbed unless the verdict

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of guilt is unsupportable as a matter of law. Id. And, that is plainly not the

situation in this case. Reviewing the evidence in a light most favorable to the

prosecution, it is sufficient to have allowed the jury to find that the evidence

excluded all reasonable hypotheses except that of Dyer’s guilt, and to have

authorized any rational trier of fact to find him guilty beyond a reasonable doubt

of the crimes of which the jury did indeed find him guilty. Id.; Jackson v.

Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       2. In five separate enumerations of error, Dyer contends that he is entitled

to a new trial because improper testimony, expert and otherwise, was admitted

into evidence involving the ultimate question for the jury as to whether he was

guilty of the crimes for which he was convicted.2

       (a) Dyer first cites testimony by the medical examiner, Dr. Frist, that the

doctor believed the manner of Azyani’s death to be a “homicide,” and argues

that this was impermissible because the basis of the opinion involved facts

which the jury could understand and evaluate for itself, and therefore, was not

a proper subject of medical expert opinion. However, Dyer did not make any


       2
         Here again, Dyer cites the charge of malice murder; but as noted, he was found not guilty
of that crime.

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contemporaneous objection at trial to the testimony; therefore, he has waived

consideration of his present objection. Smith v. State, 276 Ga. 97, 99 (4) (575

SE2d 450) (2003). And, contrary to his urging, the evidentiary issue is not

properly reviewed for plain error. Durham v. State, 292 Ga. 239, 240 (2) (734

SE2d 377) (2012); Williams v. State, 291 Ga. 501, 505 (2) (732 SE2d 47)

(2012). In any event, the medical examiner's testimony regarding the manner

of death was not an improper invasion of the province of the jury on the

determination of whether the child’s death resulted from an intentional killing

or an accident. Sharpe v. State, 291 Ga. 148, 150 (2) (728 SE2d 217) (2012).

      (b) Dyer next complains that testimony by Dr. Messner and Dr.

Greenbaum, physicians consulted on Azyani’s case, that Azyani died of abusive

head trauma, and that her injuries were not consistent with an accidental fall or

incidence involved the ultimate issue for the jury. But, this complaint is

meritless.

      The trial court found Dr. Messner qualified as an expert in pediatrics and

abusive head trauma, and Dr. Greenbaum qualified as an expert in forensic

pathology and child abuse. As to the cited testimony of Dr. Greenbaum, Dyer

made no objection on the basis now presented, and therefore, cannot be heard

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to now complain of it.        Smith v. State, supra at 99 (4). However, contrary to

Dyer’s urging, the cited testimony of either physician did not invade the

province of the jury because the ultimate issue at trial was the identity of the

person or persons responsible for the fatal abuse of Azyani, and there was no

attempt by either Dr. Messner or Dr. Greenbaum to attribute the baby’s death to

Dyer or to any other specific individual. McFolley v. State, 289 Ga. 890, 892

(717 SE2d 199) (2011).

       (c) Dyer also complains that a detective’s testimony about his

communication with the pediatric hospital doctors regarding their beliefs that

Azyani’s injuries were not the result of accident was improperly admitted into

evidence because it was hearsay, and went to the ultimate issue at trial. Here,

again there was no objection to the testimony. Smith v. State, supra at 99 (4).

Nevertheless, the cause of death was not the ultimate issue for the jury to

determine. McFolley v. State, supra at 892. Further, the testimony at issue does

not fall within the definition of hearsay applicable at the time of this trial, former

OCGA § 24-3-1 (a),3 because, inter alia, it was not offered for its truth, i.e., that

       3
         The Code section has been replaced by OCGA § 24-8-801. Ga. L. 2011, p. 99, § 2/HB 24,
effective January 1, 2013.


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the fatal injuries were not the result of accident. Reaves v. State, 292 Ga. 545,

548 (2) (d) (739 SE2d 368) (2013), citing Fugitt v. State, 256 Ga. 292 (1) (c)

(348 SE2d 451) (1986). Moreover, even assuming arguendo that the testimony

was hearsay and improperly admitted, it was merely cumulative of other

properly admitted evidence, and therefore, it is highly probable that its

admission did not affect the outcome at trial. Johnson v. State, 294 Ga. 86, 89

(3) (750 SE2d 347) (2013).

      3. Dyer also contends that he is entitled to a new trial because of the

admission of testimony by the medical examiner that the baby had healing and

recent rib fractures, which he claims was irrelevant, immaterial, and prejudicial

to him because he was not charged with causing rib fractures, and that this

evidence combined with “improper opinion evidence that the child was the

victim of a homicide or was otherwise the victim of abuse” led the jury into

believing that he had a history of child abuse which culminated in a homicide.

      But here again, Dyer did not object to this testimony at trial, and the plain

error doctrine is inapplicable. See Division 2 (a), supra. Nevertheless, evidence

is relevant if it logically tends to prove or to disprove a material fact at issue.



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Owens v. State, 248 Ga. 629, 630 (284 SE2d 408) (1981). The evidence of

Azyani’s fractured ribs was relevant and admissible inasmuch as Dyer was

charged, inter alia, with cruelty to children in the first degree by shaking the

child and causing her excessive physical and mental pain. Additionally, this

evidence was part of the constellation of injuries considered by the expert

medical witnesses in determining whether the baby’s condition was the result

of accident.

      4. Finally, Dyer maintains that his trial counsel provided deficient

representation which prejudiced his defense because counsel repeatedly failed

to object to the admission of what he characterizes as “improper testimony

involving irrelevant and prejudicial matter and expert opinion testimony

regarding the ultimate issue for the [jury],” cited in his prior enumerations of

error. However, as this Court has explained, such objections would not have

been sustained, and the failure of counsel to make a meritless objection cannot

be evidence of counsel’s ineffective assistance. Van v. State, 294 Ga. 464, 466

(3) (754 SE2d 355) (2014).

      Dyer is not entitled to a new trial on the bases urged.

      Judgments affirmed. All the Justices concur.

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                           Decided May 5, 2014.

      Murder. Cobb Superior Court. Before Judge Kreeger, Senior Judge.

      David P. Smith, for appellant.

      D. Victor Reynolds, District Attorney, Charles P. Boring, Grady A.

Moore, Amelia G. Pray, Assistant District Attorneys, Samuel S. Olens, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Christian A. Fuller, Assistant Attorney

General, for appellee.




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