296 Ga. 557
FINAL COPY

                          S14A1705. CORVI v. THE STATE.


       BENHAM, Justice.

       Appellant Marta Corvi appeals her convictions for cruelty to children

in the second degree and for reckless conduct related to the drowning deaths

of Sophia Juarez and Mia Penoyer.1 On appeal, appellant challenges the trial

court’s failure to quash the indictment as being void for vagueness as applied

and challenges the sufficiency of the evidence. For the reasons set forth

herein, we reverse.

       The evidence in the light most favorable to the verdict shows that in

April 2012, appellant came to live with Eduardo and Saundra Juarez and their

       1
           The deaths occurred on June 10, 2012. On May 21, 2013, a Paulding County grand jury
returned a true bill of indictment charging appellant with two counts of cruelty to children in the
second degree and two counts of reckless conduct. Appellant was tried before a jury from June 17,
2013, to June 20, 2013. The jury returned verdicts of guilty on all charges listed in the indictment.
On July 2, 2013, the trial court sentenced appellant to ten years for each count of cruelty to children
in the second degree to be served consecutively as to each other and sentenced her to twelve months
for each count of reckless conduct to be served concurrently as to each other and concurrently as to
the first count of cruelty to children in the second degree. The trial court only required appellant to
serve one year of her total twenty-year sentence in jail and gave her one year and one month of credit
for time already served. The remainder of her sentence was to be served on probation. Appellant
moved for a new trial on June 27, 2013, the same date as the sentencing hearing, and filed a duplicate
motion for new trial on January 9, 2014. The trial court held a hearing on the motion for new trial
on January 7, 2014, and issued an order denying the motion on January 10, 2014. Appellant filed
a timely notice of appeal on January 22, 2014, and the case was docketed to the September 2014
term of this Court. The case was orally argued on November 7, 2014.
three children. Appellant and the Juarezes had an informal arrangement

whereby appellant would look after the Juarez children, in particular five-

year-old Sophia, in exchange for room and board. Appellant also cooked and

did some cleaning.

      On June 9, 2012, appellant’s five-year-old granddaughter, Mia, came

over to spend the night and play with Sophia. Because the next day was

rainy, appellant told the girls they could not go swimming in the backyard

pool and so the girls played inside the house. At around noon, Mr. and Mrs.

Juarez and their younger son left the house to go to the grocery store.

Appellant was left in charge of the two girls and the Juarez’s older son, who

was thirteen at the time. When the three Juarezes left the house, appellant

began cleaning the hardwood floors on the main level of the tri-level house.

While cleaning, the girls were playing in Sophia’s room on the top level of

the house and the older Juarez son was in his room on the main level

watching television with head phones on and napping. At trial, it was

established that appellant had diabetes and took medicine to control her blood

sugar. Appellant told authorities that while cleaning she became dizzy due

to low blood sugar and so she went downstairs to take her medication. The
older son testified that appellant told him that she was going to the basement

to take her medicine and would be right back.2 After taking her medicine,

appellant made a personal phone call at around 12:55 p.m. When she first

got on the phone, appellant verbally confirmed that the two girls were still

upstairs playing in Sophia’s room. Evidence showed that the phone call

lasted approximately 45 minutes. When the three Juarezes returned from

shopping, they saw appellant coming out of the front door of the house,

talking on the phone and holding a soda.3 Mr. Juarez asked where Sophia

was, and appellant replied that the girls were upstairs in Sophia’s room;

however, when the family looked, the girls were not anywhere inside the

house. The family eventually found the girls in the backyard pool. The girls

were not breathing, felt cold to the touch, and were blue in color. The family

called 911 at approximately 1:41 p.m. Despite the efforts of the family, first

responders, and hospital personnel, the children could not be revived.

           1. Appellant alleges the trial court erred when it failed to grant her

motion for a directed verdict on the ground that the evidence was insufficient.

       2
         The older son testified that he heard nothing else going on in the house between the time
appellant said she was going downstairs and the time his family members arrived back at the house.
       3
         Appellant’s treating physician testified that one of the ways to control low blood sugar was
to drink a beverage with high sugar content.
In regard to the charges of cruelty to children in the second degree, the

indictment alleged that appellant “did cause [the children] cruel and

excessive physical pain by failing to reasonably supervise said [children].”4

As to the counts of reckless conduct, the indictment alleged appellant:

       unlawfully did endanger the bodily safety of [the children] by
       consciously disregarding the substantial and unjustifiable risk
       that her omission and failure to reasonably supervise [the
       children] . . . would cause harm to and endanger the safety of said
       [children] and the disregard constituted a gross deviation of the
       standard of care which a reasonable person would exercise. . . .5

Both cruelty to children in the second degree and reckless conduct are crimes

involving criminal negligence. See Kain v. State, 287 Ga. App. 45 (1) (650

SE2d 749) (2007). “Criminal negligence is an act or failure to act which

demonstrates a willful, wanton, or reckless disregard for the safety of others

who might reasonably be expected to be injured thereby.” OCGA § 16-2-1

(b). In this case, the State did not meet its burden of showing appellant’s



       4
         See OCGA § 16-5-70 (c) which provides: “Any person commits the offense of cruelty to
children in the second degree when such person with criminal negligence causes a child under the
age of 18 cruel or excessive physical or mental pain.”
       5
        See OCGA § 16-5-60 (b) which provides:
               A person who causes bodily harm to or endangers the bodily safety of another
       person by consciously disregarding a substantial and unjustifiable risk that his act or
       omission will cause harm or endanger the safety of the other person and the disregard
       constitutes a gross deviation from the standard of care which a reasonable person
       would exercise in the situation is guilty of a misdemeanor.
conduct while the children were under her supervision was so willful,

wanton, or reckless as to constitute criminal negligence supporting the crimes

alleged in the indictment.

      Based on the evidence, it appears the girls left the upstairs bedroom and

went to the pool at some point while appellant was on the phone. The lead

investigator in this case testified that he decided to swear out a warrant for

appellant’s arrest when he learned she was on the phone for 45 minutes. Yet

there was no evidence showing that the length of time appellant was on her

phone call would have made a difference in the children’s deaths. The only

time frame established for the drowning to have occurred was between 12:55

p.m. when appellant initiated her phone call and 1:41 p.m. when the family

called 911. It was unknown when the girls left the upstairs bedroom, and it

was unknown how long they had been in the pool when found. An expert

testified that a child could drown in as little as four to six minutes once

submerged. Thus, it cannot be said that taking a 45-minute phone call in

itself constituted a failure to reasonably supervise the children.

      Also, this is not a case where a caretaker left small children unattended

in a pool or a similar objectively dangerous circumstance. Cf. Baker v. State,
280 Ga. 822 (633 SE2d 541) (2006) (man found guilty of reckless conduct

where he left a three-year-old and a nine-month-old inside the home alone on

the second floor and the infant was in his walker six feet away from a

downward flight of stairs that was not barricaded for safety). Here, appellant

never left the children alone in the house, and she confirmed that they were in

Sophia’s room playing when she initiated her phone call. Appellant had told

the girls they could not go swimming, and there was no showing that the girls

had a propensity to disobey appellant or other adults. While Sophia was

described as a good swimmer,6 no evidence was presented that she would

swim in her family’s pool unsupervised or had a propensity to do so. Also,

no evidence was presented that appellant routinely failed to supervise Mia,

Sophia, or any other child in her care. Cf. Kain v. State, supra, 287 Ga. App.

at 47-48 (evidence sufficient to show criminal negligence constituting

reckless conduct and cruelty to children in the second degree where woman

regularly allowed her small children to roam outside alone, where woman

regularly left them home alone, and where the children drowned one day

while outside unattended); Reyes v. State, 242 Ga. App. 170 (1) (529 SE2d



      6
          Mia, on the other hand, could not swim.
192) (2000) (evidence sufficient to show woman who routinely allowed her

three-year-old to traverse a dangerous street while unattended was guilty of

criminal negligence constituting reckless conduct when the child was found

unconscious and mauled by an animal). Cf. Johnson v. State, 292 Ga. 856,

857-858 (1) (742 SE2d 460) (2013) (evidence sufficient to show woman

guilty of criminal negligence constituting cruelty to a child in the second

degree where child died of ingesting prescription methadone, where it was

shown the child had fallen ill for several hours before the woman sought

medical attention, and where it was shown that the woman had previously

given the child crushed prescription Xanax in his milk).

      The factual circumstances of this case, even when viewed in a light

most favorable to the verdict, do not show appellant’s conduct constituted

criminal negligence that would sustain charges of cruelty to children in the

second degree and reckless conduct. The evidence was insufficient to

convict, and the trial court erred when it failed to grant appellant’s motion for

a directed verdict and when it rejected the claim in its order denying

appellant’s motion for new trial.
      2. Because we find the evidence was insufficient to convict appellant

for the crimes for which she was charged, we need not reach the void for

vagueness issue.

      Judgment reversed. All the Justices concur.



                          Decided February 16, 2015.

      Cruelty to children. Paulding Superior Court. Before Judge Vinson.

      Andrew S. Fleischman, for appellant.

      Dick Donovan, District Attorney, Thomas D. Lyles, Assistant District

Attorney, for appellee.
