                                FIRST DIVISION
                                BARNES, P. J.,
                            MERCIER and BROWN, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                    February 18, 2020




In the Court of Appeals of Georgia
 A19A2405. HINES v. THE STATE.

       BROWN, Judge.

       A jury found Nicole Hines guilty on two counts of cruelty to children. She

appeals the trial court’s denial of her motion for new trial, contending that (1) the trial

court erred in admitting evidence related to the Department of Family and Children

Services (DFCS) investigation; (2) the trial court erred in admitting the investigating

officer’s testimony to out-of-court statements made by Hines’ boyfriend as well as the

officer’s recorded interview of the boyfriend; (3) Count 2 of the indictment should

have been dismissed for lack of subject matter jurisdiction; and (4) she received

ineffective assistance of counsel. We agree that the trial court erred in admitting

certain evidence related to the DFCS investigation. Therefore, we reverse and

remand.
      1. Viewed in the light most favorable to the jury’s verdict, see Woodard v.

State, 352 Ga. App. 322, 325 (1) (835 SE2d 35) (2019), the evidence presented at trial

showed the following. In November 2010, Hines, along with her two-year-old

daughter and eight-month-old son, were living with Jonathan Irving in Muscogee

County, Georgia. At the time, Irving was under the impression that the younger child

was his biological child. Hines had previously been living with family in Alabama,

but moved in with Irving after the birth of the baby boy. While Irving worked full-

time in the military, Hines stayed at home with both of the children.

      On November 10, 2010, Irving returned home from work at around noon, and

the baby boy appeared normal. During this period, Hines and the older child were

also home. When Irving awoke from a nap that evening, he noticed that the baby boy

was crying and that the child’s knee was extremely swollen. Irving and Hines called

both of their parents for advice, and Irving’s mother drove from Florida that night to

help them. The following day, Hines and Irving’s mother took both children to the

pediatrician. The older child had a previously scheduled appointment, and while

there, Irving’s mother asked the pediatrician to examine the boy’s knee. After

examining the child, the pediatrician instructed Hines and Irving’s mother to

immediately take the child to the hospital.

                                          2
      The admitting pediatrician who examined the child upon admission to the

hospital confirmed that the child had a fracture to his right tibia. After further x-rays,

two other fractures were discovered: one at the distal end of the left femur and a

second right tibial fracture. The fracture to the left femur showed callus formation,

indicating that the bone was healing and that it was an “older” fracture. According to

the admitting pediatrician, this older fracture could have occurred “weeks to months”

prior to its discovery. Hines suggested that the injuries had been caused by the two-

year-old child while both children were playing in a playpen together, and while the

admitting pediatrician testified that this story could have explained the newest

fracture to the child’s right tibia, it could not explain the others. The admitting

pediatrician concluded that the child’s injuries were non-accidental based on the

number of fractures and their differing ages.

      Police and DFCS were contacted and spoke with Irving and Hines at the

hospital. Both Hines and Irving agreed to come to the police station to speak with the

investigating detective. The detective interviewed them separately, and both denied

harming the child. When asked by the detective whether Irving was the child’s father,

Hines replied “yeah.” While the detective spoke with Irving, Hines stood outside the

door, eavesdropping, and burst into the room in a rage, requiring the detective to

                                            3
physically restrain her while Irving calmed her down. During her outburst, Hines

revealed that Irving was actually not the child’s father. After speaking with both

Irving and Hines and witnessing the outburst, the investigating detective arrested

Hines in connection with the child’s injuries. Hines was charged with three counts of

cruelty to children in the first degree. A DNA test later confirmed that Irving was not

the child’s biological father.

      At trial, both a pediatric radiologist and the chief of pediatrics at the hospital

where the child was treated testified that the child’s injuries indicated non-accidental

trauma.1 The chief of pediatrics, qualified as an expert in both pediatrics and child

abuse, testified that one of the fractures — termed a “bucket-handle” fracture —

could have “only [been] caused by abuse.” Both physicians confirmed that the

fractures differed in age, but neither could pinpoint when the oldest fracture had

occurred. According to the chief of pediatrics, the child had “an old fracture, a

healing fracture, and a fresh fracture . . . the kind of thing that you only see in child

abuse cases. It means that the child was injured twice, generally at days apart.”




      1
         Neither the pediatric radiologist nor the chief of pediatrics examined or
treated the child, but both reviewed the child’s medical records.

                                           4
      The trial court directed a verdict on one count of cruelty to children in the first

degree (Count 3), and the jury returned a guilty verdict on the remaining two counts

(Counts 1 and 2). Subsequently, Hines filed a motion for new trial, and a hearing was

held. For over three years after the hearing, the trial court failed to rule on Hines’

motion, and nothing in the record explains this delay. On March 8, 2019, the trial

court denied Hines’ motion for new trial, and this appeal followed.

      Though Hines has not asserted that the evidence was insufficient to sustain her

convictions, we nonetheless find that the evidence was sufficient to enable a rational

trier of fact to conclude beyond a reasonable doubt that Hines was guilty of both

counts of cruelty to children in the first degree. Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979).

      2. In her first enumeration of error, Hines contends that the trial court erred in

allowing the State to introduce evidence of the DFCS investigation of the child’s

injuries, the child’s placement, and the DFCS safety plan. During Hines’ trial, the

State called as a witness the DFCS investigator assigned to the child’s case. The

investigator testified that DFCS “did go to court” in this case and explained to the

jury that this meant DFCS would present its findings to the judge, including whether



                                           5
the allegations were substantiated,2 and the judge would determine the child’s

placement. The State then introduced the safety plan for the stated purpose of

refreshing the investigator’s recollection. See OCGA § 24-6-612. The DFCS

investigator, who did not prepare or sign the plan, then proceeded to explain the

safety plan to the jury, including that “we believed that Ms. Hines caused the injuries

so we wanted to place the child with [Irving]. . . . So we asked him to agree not to

allow any unsupervised visits [with Hines].” After the DFCS investigator explained

and even read from the safety plan, the State attempted to lay a foundation for

admitting the safety plan into evidence. During this colloquy, the DFCS investigator

again read from the plan:

      [STATE]: And what did [the safety plan] instruct by way of providing
      a safe environment for the baby?
      [DFCS INVESTIGATOR]: That . . . the child would be placed with
      Jonathan Irving and that he would — it says protect [the child] from the
      mother, Nicole Hines; and that he would not allow any [un]supervised
      visitation with her.

The State then moved to admit the safety plan into evidence, and defense counsel

objected on the basis that the DFCS investigator had not prepared the plan. After a


      2
         The DFCS investigator testified that Hines’ story was inconsistent with the
child’s injuries according to the treating physician, and that this “allowed [DFCS] to
substantiate the allegations of abuse.”

                                          6
short break, but before the trial court’s ruling, defense counsel added an objection to

the safety plan based on it being “highly . . . prejudicial.” The trial court then

apparently admitted the safety plan under the business record exception to the rule

against hearsay, see OCGA § 24-8-803 (6), without addressing counsel’s objection

based on prejudice. The safety plan states that “Child is no longer with maltreater”

and includes in its “Steps” that Irving “will protect [the child] from bio-mother Nicole

Hines.”

      Under OCGA § 24-4-403 (“Rule 403”), “[r]elevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.” “The primary

function of Rule 403, then, is to exclude evidence of scant or cumulative probative

force, dragged in by the heels for the sake of its prejudicial effect.” (Citation and

punctuation omitted.) State v. Isham, 348 Ga. App. 356, 360 (823 SE2d 47) (2019).

On appeal, “the trial court’s rulings on the exclusion or admission of evidence are

reviewed for a clear abuse of discretion. Moreover, the exclusion of relevant evidence

under Rule 403 is an extraordinary remedy that should be used only sparingly.”



                                           7
(Citations and punctuation omitted.) Davis v. State, 301 Ga. 397, 399 (2) (801 SE2d

897) (2017).

      A proper application of the abuse-of-discretion review recognizes the
      range of possible conclusions the trial judge may reach. . . . That said,
      while the abuse-of-discretion standard presupposes a range of possible
      conclusions that can be reached by a trial court with regard to a
      particular evidentiary issue, it does not permit a clear error of judgment
      or the application of the wrong legal standard.

(Citation and punctuation omitted.) State v. Jackson, 351 Ga. App. 675, 677 (832

SE2d 654) (2019).

      The State concedes, and we conclude, that the potential for prejudice

substantially outweighed any probative value of the safety plan and the accompanying

testimony. See Coleman v. State, 308 Ga. App. 731, 736 (2) (708 SE2d 638) (2011)

(physical precedent only) (DFCS investigator’s testimony that the defendant-parents’

child “was in foster care for a while” was reversible error because it could have given

jury the impression that the defendant-parents were guilty of the crime charged).

Here, the safety plan specifically referred to Hines as the “maltreater,” which could

give the jury the impression that Hines was guilty of the crime charged. Furthermore,

the DFCS investigator’s testimony regarding the court procedure coupled with

evidence that the child had been removed from Hines’ custody and that Irving had


                                          8
been instructed to “protect the child from [Hines]” could lead a jury to conclude that

another court or agency already had determined that Hines was guilty. Accordingly,

it was error for the trial court to admit evidence of the safety plan and placement of

the child, and we cannot say that the admission of this evidence along with the

testimony of the DFCS worker was harmless in this case. Accordingly, we reverse

Hines’ convictions and remand for proceedings consistent with this opinion.

      3. Although we reverse and remand in Division 2, we nevertheless address two

of Hines’ remaining enumerations of error because they involve issues likely to recur

on retrial.3 See Allaben v. State, 299 Ga. 253, 257 (3) (787 SE2d 711) (2016).

      (a) Hines contends that the trial court erred in allowing the investigating

detective to testify to the contents of out-of-court statements made to him by Irving.

During the detective’s testimony, the following transpired:

      [STATE]: Let’s talk about Tuesday. How did you know that the injury
      happened on Tuesday?
      [DETECTIVE]: That was — that came — that timeline came about after
      talking to Mr. Jonathan Irving. Mr. Irving indicated to me that that
      Tuesday morning — early Tuesday morning, he had left for work. He’s
      in the military. Early Tuesday morning he left for work. About — at
      about noon he returned home to his apartment at which time the first
      thing he did was check on his son. . . . When he checked on his son at
      12:00, he played with him a little while. The child — the child was fine.

      3
          We do not address Hines’ claim of ineffective assistance of trial counsel.

                                           9
      He didn’t see anything abnormal or unusual about the child. The child
      was not crying —
      [DEFENSE COUNSEL]: Your Honor — Excuse me, Your Honor. I’m
      going to object to him going into what Mr. Irving said. It’s hearsay. Mr.
      Irving was here. He testified already.
      [STATE]: Your Honor, there are multiple exceptions to the hearsay rule
      and here it’s prior inconsistent statements. It’s rendered in writing —
      excuse me — it is recorded and the statement will be played. Also for
      the affect on [the detective] as he testified previously, he was
      establishing a timeline and determining what was consistent or not
      consistent with the injury, so.
      [TRIAL COURT]: I’ll overrule the objection.

The detective then continued to testify as to what Irving told him happened on the day

he discovered the child’s injury. Hines contends that the admission of this testimony

constitutes reversible error. The State maintains that this testimony did not constitute

hearsay because Irving was available and testified at trial.

      “An out-of-court statement made by a witness is not hearsay if the witness

testifies at the time of trial or hearing, is subject to cross-examination concerning the

statement, and the statement is admissible as a prior consistent statement under

OCGA § 24-6-613.” (Citation and punctuation omitted.) Wilson v. State, 351 Ga.

App. 794, 799 (3) (b) (833 SE2d 175) (2019). However, a prior out-of-court statement

of a testifying witness may not be used to bolster the credibility of a witness unless

that credibility has been attacked. See id; Blackmon v. State, 336 Ga. App. 387, 391


                                           10
(2) (a) (785 SE2d 59) (2016) (physical precedent only). In this vein, “[a] party may

introduce a prior consistent statement of a forgetful witness where the witness

testifies at trial and is subject to cross-examination.” (Citations omitted.) Manning v.

State, 273 Ga. 744 (545 SE2d 914) (2001).4 See Paul S. Milich, Courtroom Handbook

on Georgia Evidence, p. 488 (2019 ed.) (“The fact that a witness testifies to a lack of

memory is a form of impeachment.”). Here, the record shows that after the 2010

incident, but prior to trial, Irving suffered multiple combat-related injuries, including

a head injury. His mother testified that his injuries caused him to have “a hard time

remembering a lot of things,” and Irving repeatedly had trouble recalling certain

details during his testimony, including what occurred on the day he discovered the

child’s injury. Accordingly, the trial court did not err in admitting the testimony.

      (b) Hines next argues that the trial court’s admission of the detective’s recorded

interview with Irving violated her constitutional right to confront Irving. “A

Confrontation Clause violation occurs when an out-of-court statement admitted into

evidence is testimonial in nature and the declarant is unavailable at trial and was not


      4
         Manning was decided under the old Evidence Code, but the new Evidence
Code allows the admission of prior consistent statements if they logically rebut any
attack on a witness’s credibility, including a charge of faulty memory. See Walters
v. State, 335 Ga. App. 12, 14-17 (780 SE2d 720) (2015).

                                           11
previously subject to cross-examination.” (Punctuation omitted.) Varner v. State, 306

Ga. 726, 730 (2) (b) (i) (832 SE2d 792) (2019). Here, the admission of Irving’s

recorded statement to the detective did not violate the Confrontation Clause because

Irving testified at trial and was subject to cross-examination. See Anderson v. State,

307 Ga. 79 (2) (b), n.8 (834 SE2d 830) (2019).

      (c) Hines asserts that the trial court should have dismissed Count 2 of the

indictment for lack of subject matter jurisdiction. Count 2 related to the older fracture

to the child’s left leg. According to Hines, given the uncertain time frame of when the

older fracture occurred and evidence of the child’s frequent travel to Alabama, it is

uncertain whether the injury occurred in Georgia and thus whether the trial court had

jurisdiction over the crime. In other words, Hines argues that the evidence presented

at trial failed to prove that the offense charged in Count 2 occurred within the State

of Georgia.

      Pursuant to OCGA § 17-2-1,

      It is the policy of this state to exercise its jurisdiction over crime and
      persons charged with the commission of crime to the fullest extent
      allowable under, and consistent with, the Constitution of this state and
      the Constitution of the United States. . . . Pursuant to this policy, a
      person shall be subject to prosecution in this state for a crime which he
      commits, while either within or outside the state, by his own conduct or

                                           12
      that of another for which he is legally accountable, if . . . [t]he crime is
      committed either wholly or partly within the state. . . .


OCGA § 17-2-1 (a), (b) (1). “A crime is committed partly within this state if either

the conduct which is an element of the crime or the result which is such an element

occurs within the state.” OCGA § 17-2-1 (c). Here, Count 2 charged Hines with

cruelty to children in the first degree by “maliciously caus[ing the child] . . . physical

and mental pain by breaking his left leg. . . .” OCGA § 16-5-70 (b) provides that

“[a]ny person commits the offense of cruelty to children in the first degree when such

person maliciously causes a child under the age of 18 cruel or excessive physical or

mental pain.” Thus, the child’s physical and mental pain, the result of the conduct, is

an element of cruelty to children as defined in OCGA § 16-5-70 (b). And undisputed

evidence presented at trial showed that the child was present in Georgia for at least

some period of time after suffering the older break. Accordingly, even if the conduct

occurred outside of Georgia, the result occurred in Georgia, and Hines’ argument is

without merit.

      4. After Hines’ appeal was docketed in this Court, Hines filed a “Motion to

Remand,” indicating that Hines and the State had come to a “plea agreement” and

requesting that we remand the case back to the trial court to reconsider Hines’ motion

                                           13
for new trial without considering the merits on appeal. The State then filed a “Motion

to Clarify,” again asserting that the parties had reached a “mutual resolution” because

the State concedes that there is reversible error. The State requested that we not

require it to submit a brief on the merits and instead “instantly remand” the case to

the trial court without considering the merits of the appeal “in the interest of justice

. . . and judicial[ ] efficien[cy].” In light of our disposition in this case, both motions

are denied as moot.

       Judgment reversed and case remanded. Barnes, P. J., and Mercier, J., concur.




                                            14
