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State appeals court rejects motions of woman convicted in Warren County child deaths

The Georgia Court of Appeals has rejected various motions from a woman convicted last year in the April 2005 drowning deaths of her two small children in Warrenton.

Meanwhile, prosecutors in the case couldn't be happier, because the case sets forth a new state precedence when it comes to trying persons who cause the death of a child under the age of 18 where criminal negligence is alleged.

In the Warren County case, Lottie Kain, who formerly lived in Warrenton, was convicted under the new statute, which had been sought against her by Dennis C. Sanders, district attorney and William Doupe', senior assistant district attorney. Both work out of the Toombs Judicial Circuit District Attorney's Office in Thomson.

"I'm happy about the ruling from the Georgia Court of Appeals," Mr. Sanders said during an interview last Friday. "I believe the court used a lot of common sense in determining their ruling in this particular case. It's nice to see that we left our mark. The Kain case will now be the case cited by other lawyers when they seek criminal negligence in cases involving the deaths of children under 18 in our state."

Meanwhile, Michael C. Garrett, who represented Mrs. Kain in a four-day trial in Warren County Superior Court, isn't happy about the court's ruling, which was handed down on July 31.

"We're examining the opinion to see if further appellate review is applicable," Mr. Garrett said.

Should something be found, then the next course of action would be to file an appeal with the Georgia Supreme Court, Mr. Garrett noted.

In its ruling, the Georgia Appeals Court determined "there is no merit in Kain's challenge to the sufficiency of the evidence. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility, but only determines whether the evidence is sufficient under the standard..."

The state appellate court also determined that the trial court did not err in denying an oral motion by Mr. Garrett to quash the indictment brought against her by a grand jury.

"It is well established that a special demurrer, which objects to the form of the indictment, must be made prior to pleading guilty to the indictment," wrote a state appellate court judge. "We find neither error nor prejudice."

During her trial, Mr. Sanders and Mr. Doupe' established that Ms. Kain had failed on numerous occasions to reasonably supervise and reasonably watch her children.

In moving to quash the indictment, Mr. Garrett argued that the allegations contained in the indictment were insufficient to charge Ms. Kain with commission of a crime, because failure to reasonably supervise or reasonably watch one's children does not amount to criminal negligence.

"This argument is without merit," the appellate court stated. "Although the failure to reasonably supervise or watch one's children may not in and of itself constitute criminal negligence, such dereliction certainly may rise to that level depending on the circumstances."

Ms. Kain also contended that the trial court erred in allowing prosecutors to present evidence of a sexual encounter that involved her, her live-in companion and another couple the night before the drownings of her children.

Prosecutors filed a motion before the trial began that they planned to introduced evidence of such a sexual encounter. In a pre-trial order, the court ruled that such evidence could be admitted as circumstances surrounding the offense, provided the state could link it to the negligence involving the children wandering away from home before they drowned. Prosecutors established such a connection through Ms. Kain's own admission in testimony.

Because of the events the previous night, Ms. Kain admitted on the witness stand that she had suffered from a lack of sleep on the day the children wandered away from home and drowned.

The state appellate court also ruled that Ms. Kain "was not harmed" by the admission of a law enforcement officer's statement during her trial. "Therefore, she was not entitled to a mistrial and her challenge to the adequacy of the court's curative instruction is moot."

A jury deliberated a little more than an hour in October 2006, before returning a guilty verdict against Ms. Kain on two counts of cruelty to children in the second degree under the criminal negligence statute. It marked the first time in Georgia that the new law had been tested.

She is currently serving consecutive five-year prison sentences, plus five years probation for the deaths of Jonah Payne, 3 and Nicole, 2. She is incarcerated at a state women's correctional facility in Buford.

Web posted on Thursday, August 09, 2007

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