296 Ga. 703
FINAL COPY

                    S14A1336. CORDERO v. THE STATE.


      HUNSTEIN, Justice.

      A Fulton County jury convicted Appellant Marco Cordero of felony

murder and other serious crimes stemming from events on and between January

16-18, 2008, which resulted in the death of four-year-old Mark Mendez. For

assaults on the victim that occurred on and between September 1 to December

31, 2007, the jury convicted Appellant of cruelty to children in the first degree.1


      1
         The crimes occurred on and between January 16-18, 2008, and on and
between September 1 to December 31, 2007. On January 25, 2011, a Fulton County
grand jury indicted Appellant for malice murder, felony murder (predicated on cruelty
to children in the first degree), felony murder (predicated on aggravated assault),
cruelty to children in the first degree, and aggravated assault, in connection with the
death of Mark Mendez by striking the child with the accused’s hands, feet, and
objects unknown, on and between January 16-18, 2008. The grand jury also indicted
Appellant for cruelty to children in the first degree and aggravated assault for causing
the victim cruel and excessive physical and mental pain by striking the child with the
accused’s hands, feet, and objects unknown, on and between September 1 to
December 31, 2007. The jury returned its verdicts on March 7, 2011. For events
occurring on and between January 16-18, 2008, the jury found Appellant guilty of
felony murder (predicated on cruelty to children in the first degree), cruelty to
children in the first degree, and aggravated assault but not guilty of malice murder
and felony murder (predicated on aggravated assault). For events occurring on and
between September 1 to December 31, 2007, the jury found Appellant guilty of
cruelty to children in the first degree but not guilty of aggravated assault. The court
sentenced Appellant to life imprisonment on the felony murder verdict and 20 years
to run concurrently on the first-degree child cruelty verdict stemming from events
Appellant appeals, contending that his trial counsel was constitutionally

ineffective and that the trial court erred in sentencing him on the verdict of

cruelty to children that was based on the events occurring on or between

September 1 to December 31, 2007. For the reasons that follow, we affirm.

      1. Viewed in the light most favorable to the verdict, the evidence shows

that Appellant lived with his wife, Sabina Mendez, their three young children,

including the victim, and a family friend, Milton Garcia, in an apartment in the

basement of a hotel. The owner of the hotel permitted them to live there in

exchange for Appellant doing some work for him. According to Mendez’s

testimony,2 Appellant caused all of the victim’s injuries, and the victim did not

inflict any injuries upon himself. Mendez testified that, by August 2007, the

victim began rubbing his feces on the walls, and Appellant began to regularly



occurring on and between September 1 to December 31, 2007. The child cruelty and
aggravated assault counts stemming from events occurring on and between January
16-18, 2008, merged for sentencing purposes. Appellant filed a timely motion for
new trial, which he amended on September 28, 2012. On June 21, 2013, the trial
court denied Appellant’s motion for new trial, as amended, and on July 15, 2013,
Appellant filed a notice of appeal. The appeal was docketed to the September 2014
term of this Court and was submitted for decision on the briefs.
      2
        Mendez entered a guilty plea to one count of cruelty to children in the first
degree in exchange for her testimony against her husband.

                                         2
and badly beat the victim as a result. On November 26, 2007, Appellant saw

that the victim had dirtied the bathroom; he then bathed him in ice water (which

he continued to do regularly) and severely beat him, hitting him with a

screwdriver, using both ends, and a plunger. According to Mendez, the beating

caused the victim’s head to swell and left scratches on him. During the beating,

Mendez tried to intervene, but Appellant pushed her away. On other occasions,

Appellant used knives and machetes to inflict injuries on the victim, and one day

beat the victim with a broom until the handle broke off, at which point Appellant

forced the handle into the victim’s mouth until he “broke his mouth.” During

the night of December 29, 2007, Mendez heard the victim crying and yelling.

She found Appellant in the bathroom, hitting the victim all over his body with

a plunger, a wet towel, and a piece of wood. The next day, Appellant, who said

he had tired of beating the victim, rubbed a habanero chili all over the victim’s

body, including his genitals and buttocks, and stuffed the chili in the victim’s

rectum.

      On January 16, 2008, the victim began yelling, and Appellant tied the

victim upside down by his feet from the shower door. Appellant left, and

Mendez untied the victim. After she did so, the victim defecated and began

                                       3
spreading it around. Appellant returned, beat the victim with a piece of wood

and belts, and tied him up with some wire. Mendez testified that Appellant said

that he was beating the victim in order “for the devil to come out.” On that same

occasion, Appellant punched and kicked the victim, which caused his nose and

eyes to bleed. Appellant then left for work, leaving the victim tied up with wire.

      On January 17, 2008, the victim was vomiting and told his mother that

his stomach hurt. Mendez asked Appellant to take the victim to the hospital, but

Appellant refused. That evening, Appellant forced the victim to sleep in the

shower without a blanket or pillow. On January 18, 2008, Mendez found the

victim in the shower with a fever, looking extremely ill, and vomiting. She told

Appellant that the victim was not well and vomiting, and Appellant told her that

the victim should “eat his vomit back.” Appellant then left to do some work for

the hotel owner. Later that morning, Appellant called her husband and told him

that the victim was “really sick.” Appellant said that he did not want to spend

money to take the child to the hospital and that the child needed a healer because

he was possessed. Shortly thereafter, Appellant arrived home and continued to

refuse to take the victim to the doctor. Mendez ran to the hotel owner and asked

him to come to the apartment. Once Appellant’s boss saw the victim, he told

                                        4
Appellant that the victim needed to go to the hospital.

      Appellant took the victim to Piedmont Hospital, arriving at 12:44 p.m.,

gave the child to a charge nurse, and claimed that the child had fallen in the

bathtub the night before.3 The nurse testified that the victim was not breathing,

was non-responsive, and had no pulse when he arrived at the emergency room.

The nurse also observed that the victim’s injuries were not consistent with a fall

and that the victim was blue and covered in vomit and bruises. The nurse

believed that the victim’s condition was the worst she had ever seen in her thirty

years of experience as an emergency room nurse. Medical personnel attempted

to resuscitate the victim, but he never regained consciousness and was

pronounced dead six minutes after arriving. The hospital took photographs of

the victim’s injuries and notified police.

      A Spanish-speaking police officer waited with Appellant at the hospital

and noticed that Appellant was extremely nervous. On multiple occasions,

Appellant told the officer that the victim was possessed by the devil and had

hurt himself by running into walls repeatedly. Appellant also kept asking the


      3
      Appellant spoke only Spanish and was unable to give more details due to the
language barrier.

                                        5
officer if he was going to jail. Detectives later interviewed Appellant, who said

that the child had fallen in the bathtub and hit his head. He later admitted that

he had also punched the victim in the stomach a few days earlier and said that

he “felt that his wife didn’t have anything to do with this.” He also told

detectives that the victim was possessed, said and did “crazy things,” scratched

himself, defecated on himself, hit himself with whatever objects he could find,

hit his head on the toilet, ran into sharp corners to injure himself, said that he

wanted to have sex with his mother, and told Appellant that he would “not rest”

until Appellant went to jail. According to Appellant, he was the only one who

disciplined the victim, who was “mommy’s little boy” and was protected by

Mendez. He admitted that he sometimes “got a little heavy handed” when he

disciplined the victim, and in response to the statement, “[i]f it wasn’t you, it

was your wife,” Appellant said that it was not her, that she “always is taking

care of him.” After Appellant’s interview was completed, he asked the detective

“how much time [he was] going to get for this.”

      Garcia witnessed Appellant hit the victim on his legs and hands, including

with a shoe, pull the victim’s ear, and yell at him, but he did not see any physical

injuries on the victim that made him think the victim was being physically

                                         6
abused. He also testified that he did not see the victim do anything to hurt

himself. Garcia never witnessed Mendez strike or hit the victim. The owner of

the hotel in which Appellant and his family lived testified that he noticed some

bruises and cuts on the victim’s head and arms and asked the parents about it.

Appellant said that the victim was inflicting the injuries on himself by doing

things such as falling on the floor to try to hurt his head and getting knives to try

to cut himself. When Appellant took the victim to the hospital on January 18,

he told the medical staff that the victim had suffered his injuries by falling in the

bathtub the night before; however, a search of Appellant’s apartment conducted

on January 18 revealed that there was no bathtub in the family’s residence, and

the officer who conducted the search said that he did not see any signs of trauma

or injury in the bathroom. Forensic testing showed that a pair of Appellant’s

sneakers had the victim’s blood on them.

      A medical examiner determined that the cause of the child’s death was

generalized blunt force trauma to the head, torso, and extremities. He opined

that there was not one particular hit that killed the victim, but that the

“constellation of all the injuries” that the victim suffered eventually caused him

to go into shock and suffer cardiac arrhythmia, resulting in death. He located

                                         7
more than 60 different scars, contusions, abrasions, lacerations, and

hemorrhages over the victim’s battered body, all of which he opined would have

been painful to the child. The injuries on the victim’s head were not consistent

with falling but instead could have been caused by a fist, a broom handle, a

screwdriver, or a piece of wood.

      An expert in forensic pediatrics and child abuse testified that the victim

suffered from battered child syndrome, the victim’s injuries were not self-

inflicted, the injuries would have caused the victim excessive mental pain, and

the victim’s action of smearing feces on the wall was a response to the repetitive

physical abuse he suffered. He also said that there was not any one blow that

was lethal to the victim, but that the victim suffered so many injuries that he

went into shock, which caused cardiac arrhythmia and death.

      Appellant testified, saying that he would discipline the victim if he

behaved inappropriately but denying that he ever beat him with a plunger or

pieces of wood and denying that he hung him upside down on the shower door.

      Viewing the evidence in the light most favorable to the verdict and leaving

“questions of credibility and the resolution of conflicts in the evidence to the

jury,” Bradley v. State, 292 Ga. 607, 609 (740 SE2d 100) (2013), we readily

                                        8
conclude that the evidence was sufficient to authorize a rational jury to find

beyond a reasonable doubt that Appellant was guilty of the crimes of which he

was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61

LE2d 560) (1979).

      2. After the jury began its deliberations, it asked the trial court two

questions: (1) “Does the failure to prevent an event constitute causing that

event?”; and (2) “When ruling on a felony murder charge, must the

corresponding felony ruling be the sole cause of death, or may it be just one

component of death?” The trial court provided the jury with two answers

proposed by defense counsel. The court answered “No” to the first question,

and with regard to the second question, told the jury that, “[i]n order to find the

defendant guilty of felony murder, you must first find the defendant guilty

beyond a reasonable doubt of the underlying felony charges in the indictment

for that count.”

      Appellant contends that trial counsel was ineffective in providing the

foregoing answers to these questions. To prevail on this claim, Appellant must

show that his counsel performed deficiently and that, but for the deficiency,

there is a reasonable probability that the outcome of the trial would have been

                                        9
more favorable to him. See Strickland v. Washington, 466 U. S. 668, 687, 694

(104 SCt 2052, 80 LE2d 674) (1984). “This burden, although not impossible

to carry, is a heavy one.” Young v. State, 292 Ga. 443, 445 (738 SE2d 575)

(2013). Moreover,

      a court need not determine whether counsel’s performance was
      deficient before examining the prejudice suffered by the defendant
      as a result of the alleged deficiencies. The object of an
      ineffectiveness claim is not to grade counsel’s performance. If it is
      easier to dispose of an ineffectiveness claim on the ground of lack
      of sufficient prejudice, which we expect will often be so, that course
      should be followed.

Strickland, 466 U. S. at 697.

      Appellant contends that the two answers could have confused the jury and

left it to believe that it only had to find Appellant guilty of the underlying felony

to find him guilty of felony murder, without regard to whether his actions

caused the victim’s death during the commission of the felony and without

regard to whether his wife actually inflicted the victim’s injuries and was thus

an intervening cause that relieved him of criminal liability. More specifically,

he contends that the trial court should have charged more fully on the principles

of proximate cause set forth in State v. Jackson, 287 Ga. 646, 648-649, 654, 660

(697 SE2d 757) (2010) (holding that the phrase “causes the death of another

                                         10
human being” in our felony murder statute, see OCGA § 16-5-1 (c), means

proximate causation; stating that, in homicide cases, when a defendant inflicts

an injury, the injury is the proximate cause of death when “(1) the injury itself

constituted the sole proximate cause of the death; or that (2) the injury directly

and materially contributed to the happening of a subsequent accruing immediate

cause of the death; or that (3) the injury materially accelerated the death,

although proximately occasioned by a pre-existing cause”; and stating that

“[p]roximate causation imposes liability for the reasonably foreseeable results

of criminal . . . conduct if there is no sufficient, independent, and unforeseen

intervening cause”) (citation and punctuation omitted)).

      We conclude, however, that even if trial counsel did err in failing to

request a charge on proximate causation based on Jackson, Appellant has failed

to show that there is a reasonable probability that, but for counsel’s error, the

outcome of the trial would have been more favorable to him. As reasonably

conceded at trial by counsel, the victim’s injuries were not self-inflicted; instead,

he was repeatedly beaten by someone and those beatings caused his death.

Appellant’s defense was that his wife, who spent more time at home with the

victim than he did, inflicted the injuries on the child and that he did not inflict

                                         11
any of them. Moreover, the trial court’s initial charge and recharge, considered

as a whole, instructed the jury that it could only find Appellant guilty of felony

murder if the jury found that he had committed one of the two underlying

felonies against the victim and caused the victim’s death in doing so. The court

also charged that the child’s death

      must have been done in carrying out the unlawful act and not
      collateral to it. It is not enough that the homicide occurred soon or
      presently after the felony was attempted or committed. There must
      be such a legal relationship between the homicide and the felony so
      as to cause you to find that the homicide occurred before the felony
      was at an end or before any attempt to avoid conviction or arrest for
      the felony, the felony must have a real relationship to the homicide,
      be at least concurrent with it in part and be a part of it in an actual
      and material sense.
                   A homicide is committed in the carrying out of a felony
      when it is committed by the accused while engaged in the
      performance of any act required for the full execution of the felony.

Thus, the recharge and charge, as a whole, more than adequately presented

Appellant’s defense that the jury could not find him guilty if it found that his

wife had committed the underlying felonies. Moreover, once the jury found that

Appellant had committed the underlying felony of cruelty to children, there was

no dispute that the beatings that constituted that crime were the proximate cause

of the victim’s death. For these reasons, we conclude that even if counsel had


                                        12
requested that the trial court charge on the principles of proximate cause

discussed in Jackson and the court had done so, there is not a reasonable

probability that the outcome of Appellant’s trial would have been different.

      3. Appellant contends that the verdict of guilty on the count of cruelty to

children for events that occurred on and between September 1, 2007, to

December 31, 2007, merged as a matter of fact into the felony murder verdict

and that the trial court therefore erred by sentencing him on that verdict. We

disagree.

      OCGA § 16-1-7 (a) provides that “[w]hen the same conduct of an accused

may establish the commission of more than one crime, the accused may be

prosecuted for each crime. He may not, however, be convicted of more than one

crime if: (1) One crime is included in the other . . . .” OCGA § 16-1-6 (1)

provides, in relevant part, that a crime is “included in” the other where “[i]t is

established by proof of the same or less than all the facts or a less culpable

mental state than is required to establish the commission of the [other crime].”

In Drinkard v. Walker, 281 Ga. 211, 214 (636 SE2d 530) (2006), we adopted

the “required evidence” test for determining when one crime is “included in”

another under OCGA § 16-1-6 (1) and therefore merges as a matter of fact.

                                       13
“‘[W]here the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which

the other does not.’” Drinkard, 281 Ga. at 215 (quoting Blockburger v. United

States, 284 U. S. 299, 304 (52 SCt 180, 76 LE 306) (1932)).

      Because the required evidence test does not permit convictions of both the

underlying felony and felony murder (the underlying felony is always

established by proof of the facts required to establish the felony murder), the

trial court properly merged the verdict on the underlying felony of cruelty to

children for events occurring on and between January 16 to January 18, 2008,

with the felony murder verdict. Appellant, however, contends that the separate

verdict on the felony of cruelty to children for events occurring from September

to December 2007 should also merge because the medical examiner and child

abuse expert both testified that the victim’s death was not caused by any one

blow but by the accumulation of beatings over the course of many months,

which ultimately caused the victim to go into shock on January 18, 2008, and

die from cardiac arrhythmia.

      It appears that we have not addressed the precise merger question

                                      14
presented here, which involves both (1) a deliberate interval between acts

causing injury and (2) expert testimony affirmatively opining that none of the

acts causing injury, either before or after the deliberate interval, would have on

its own resulted in the victim’s death. The issue thus presented is: when a

defendant inflicts non-fatal injuries on a victim, followed by a deliberate

interval, and then inflicts more non-fatal injuries, which in combination with the

earlier non-fatal injuries cause the victim’s death, is the earlier, non-fatal crime

independent of the subsequent homicide, such that the defendant may be

sentenced for both crimes?

      In situations where a non-fatal injury is followed by a deliberate interval

and then the infliction of a fatal injury, we have held that the crime resulting in

the initial non-fatal injury does not merge as a matter of fact into the crime

resulting in the fatal injury. See Coleman v. State, 286 Ga. 291 (3) (687 SE2d

427) (2009) (citing cases).4 In this context, the crime resulting in the non-fatal

injury is an independent act that does not merge with the crime resulting in the



      4
        On the other hand, “[w]hen a victim suffers multiple wounds inflicted
in quick succession, each infliction of injury does not constitute a separate
assault.” Coleman, 286 Ga. at 295.
                                        15
fatal injury. Id. at 295. Similarly, we have held that where one crime is

completed before another crime, the “same conduct” does not establish the

commission of both offenses, and “(t)he rule prohibiting more than one

conviction if one crime is included in the other does not apply.” See Jones v.

State, 290 Ga. 670, 672-673 (725 SE2d 236) (2012) (citation and punctuation

omitted). However, in a case in which the

      medical examiner who performed the autopsy testified that the
      cause of death was “gunshot wounds,” did not identify any injury
      as the fatal shot, acknowledged he could not testify as to the order
      in which the bullets entered the victim’s body, and stated no single
      wound would have instantly stopped the victim[,]

we held that, even if “the multiple wounds were not inflicted in quick

succession,” because there was no evidence that a non-fatal shot was followed

by a deliberate interval before the fatal shot, the aggravated assault verdict

merged with the malice murder verdict. Coleman, 286 Ga. at 295.

      For the reasons that follow, we conclude that, under the circumstances of

this case, the acts of cruelty that occurred between September and December

2007 constitute an “independent act” separate and apart from the January 2008

acts of cruelty, on which the underlying felony for felony murder was based.

First, there was a “deliberate interval” between the acts of cruelty to the victim

                                       16
that occurred between September and December 2007 and those that occurred

in January 2008. Also, the jury would have been authorized to infer that the

victim would have lived if the cruelty had stopped in December 2007, as there

was no evidence that the injuries suffered by the victim in 2007 would have

caused his death. The crime of cruelty to children based on the acts of cruelty

occurring in late 2007 was thus completed before the January 2008 crimes of

felony murder and cruelty to children occurred.

      Moreover, the jury would have been authorized to find that the January 16

to January 18 acts of cruelty were, by themselves, the proximate cause of the

victim’s death. An injury is the proximate cause of death if it “‘materially

accelerated the death, although proximately occasioned by a pre-existing

cause.’” Castro v. State, 295 Ga. 105, 107 (757 SE2d 853) (2014) (citation

omitted). In Castro, the mother of the two-year-old victim was indicted along

with Castro for murder and other crimes, based on the theory that she failed to

seek medical treatment for the victim after a week in which Castro beat the

victim numerous times, resulting in her death. See id. at 105, 107. We held that

the evidence was sufficient to show that the mother’s actions were the proximate

cause of the victim’s death because her refusal to take the victim to the hospital

                                       17
on the day she died materially accelerated the victim’s death, even though

Castro’s beatings were a pre-existing cause. See id. at 107. Accord Bryant v.

State, 270 Ga. 266, 268-269 (507 SE2d 451) (1998) (holding that although the

victim, who was shot during a robbery and died at home two months later from

a pulmonary embolism, “had previously suffered from some conditions that

might have put her at risk for pulmonary embolism, the injuries she sustained

in appellants’ attack on her . . . ‘materially accelerated the death, although (it

was) proximately occasioned by a pre-existing cause.’” (citation omitted);

Durden v. State, 250 Ga. 325, 329 (5) (297 SE2d 237) (1982) (holding that the

jury was authorized to find that the defendant proximately caused the victim’s

death where the defendant exchanged gunfire with the victim while burglarizing

his store and the victim, who was not shot, died from a heart attack a few

minutes later, stating that “[w]here one commits a felony upon another, such

felony is to be accounted as the efficient, proximate cause of the death whenever

it shall be made to appear . . . that the injury materially accelerated the death,

although proximately occasioned by a pre-existing cause”). We have also noted

that “‘the offender takes his victim as he finds him,’” Fair v. State, 288 Ga. 244,

249 (702 SE2d 420) (2010), and Judge Posner has written that “[t]he tortfeasor

                                        18
takes his victim as he finds him (emphatically so if the victim’s weakened

condition is due to earlier, albeit time-barred, torts of the same tortfeasor); that

is the eggshell-skull rule.” Lancaster v. Norfolk & W. Ry., 773 F2d 807, 822

(7th Cir. 1985). Although that was a tort case, we have generally comparably

treated proximate cause in tort and criminal law. See State v. Jackson, 287 Ga.

at 648, 654 (“Georgia is a proximate cause state. When another meaning is not

indicated by specific definition or context, the term ‘cause’ is customarily

interpreted in almost all legal contexts to mean ‘proximate cause’”; “Proximate

causation imposes liability for the reasonably foreseeable results of criminal (or,

in the civil context, tortious) conduct if there is no sufficient, independent, and

unforeseen intervening cause.”).

      Applying these principles here, we conclude that, when Appellant beat the

victim in January 2008, he took the victim as he found him, weakened by

Appellant’s own beatings and susceptible of dying from further beatings. We

thus readily conclude that the jury could infer that the acts of cruelty committed

on and between January 16 to 18, 2008, were the proximate cause of the

victim’s death — they “‘materially accelerated the death, although proximately

occasioned by a pre-existing cause.’”

                                        19
      Under all the foregoing circumstances, we conclude that the crime of

cruelty to children, based on the non-fatal injuries that occurred from September

to December 2007, is an independent crime that does not merge with the crime

of felony murder, based on the events of January 16 to January 18, 2008. This

case is unlike Coleman, in which there was no evidence by which the jury could

infer that there was a completed, non-fatal assault followed by a deliberate

interval and a later assault that was the proximate cause of death. Moreover, to

conclude that the multiple acts of cruelty committed over many months against

the victim in this case, when separated by a significant interval, constitute only

one crime would mean that Appellant was permitted to brutalize the victim for

many months with impunity.

      Judgment affirmed. All the Justices concur.



                           Decided March 16, 2015.

      Murder. Fulton Superior Court. Before Judge Adams.

      Sheueli C. Wang, for appellant.

      Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Sheila E.

Gallow, Joshua D. Morrison, Assistant District Attorneys, Samuel S. Olens,

                                        20
Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula

K. Smith, Senior Assistant Attorney General, Katherine L. Iannuzzi, Assistant

Attorney General, for appellee.




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