Linson v. State, 700 S.E.2d 394 (Ga. 2010). · Go Syfert
Linson v. State, 700 S.E.2d 394 (Ga. 2010). Cases Citing This Book View Copy Cite
119 citation events (119 in the last 25 years) across 3 distinct courts.
Strongest positive: Starks v. State (ga, 2024-11-05)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 37 distinct citers. How cited ↗
examined Cited as authority (quoted) Starks v. State (4×) also: Cited "see"
Ga. · 2024 · signal: see · quote attribution · 2 verbatim quotes · confidence high
if the same conduct established the commission of both offenses, it is necessary to take the next step in the analysis by applying the required evidence test for determining when one offense is included in another.
discussed Cited as authority (quoted) State v. Hendrick D. Nickerson (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2013 · quote attribution · 1 verbatim quote · confidence low
such reversal is required, though, only when such comments are made in the presence of the jury.
discussed Cited as authority (quoted) State v. Nickerson (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2013 · quote attribution · 1 verbatim quote · confidence low
such reversal is required, though, only when such comments are made in the presence of the jury.
discussed Cited as authority (rule) Tedder v. State (2×)
Ga. · 2024 · confidence medium
Instead, the trial judge’s explanation that the transcripts were not introduced into evidence and, thus, were not available for viewing was the “type of explanation” that amounts to “a permissible clarification of 19 procedure that does not address the credibility of witnesses or any fact at issue in the trial.” Roberts v. State, 305 Ga. 257, 262-263 (4) ( 824 SE2d 326 ) (2019) (trial judge did not violate OCGA § 17-8-57 (a) (1) by instructing jury to “pay special attention” to video footage because, viewed in context, comment was simply “a straightforward explanation that [th…
discussed Cited as authority (rule) TAYLOR, EXR. v. THE DEVEREUX FOUNDATION, INC. (And Vice Versa) (2×)
Ga. · 2023 · confidence medium
Taylor argues that the high damages in that case were awarded to punish the defendant based only on implied malice and, citing a case from this Court that was decided more than 200 years after Farmer—Parker v. State, 270 Ga. 256 (507 SE2d 744) (1998), overruled in part on other grounds by Linson v. State, 287 Ga. 881, 886 (700 SE2d 394) (2010)—contends that implied malice is equivalent to “reckless disregard,” and that intentional misconduct was not required to authorize punishment damages as a result.
discussed Cited as authority (rule) Miguel Alvarado-Linares v. United States
11th Cir. · 2022 · confidence medium
Parker v. State, 507 S.E.2d 744, 747 (Ga. 1998) (malice murder is commit- ted when the evidence establishes “an express or, in the alternative, an implied intent to commit an unlawful homicide”), overruled on other grounds by Linson v. State, 287 Ga. 881, 886 (Ga. 2010); see also Latimore v. State, 421 S.E.2d 281, 282 (Ga. 1992) (malice “in- corporates the intent to kill”).
discussed Cited as authority (rule) Miguel Alvarado-Linares v. United States
11th Cir. · 2022 · confidence medium
Parker v. State, 507 S.E.2d 744, 747 (Ga. 1998) (malice murder is commit- ted when the evidence establishes “an express or, in the alternative, an implied intent to commit an unlawful homicide”), overruled on other grounds by Linson v. State, 287 Ga. 881, 886 (Ga. 2010); see also Latimore v. State, 421 S.E.2d 281, 282 (Ga. 1992) (malice “in- corporates the intent to kill”).
discussed Cited as authority (rule) Burney v. State
Ga. · 2020 · confidence medium
Burney argues that none of these actions were capable of producing the violence necessary to end a human life and that they therefore cannot support a conviction for malice murder, citing this Court’s decision in Parker v. State, 270 Ga. 256, 259-260 (4) ( 507 SE2d 744 ) (1998), overruled on other grounds by Linson v. State, 287 Ga. 881, 886 (4) ( 700 SE2d 394 ) (2010).
discussed Cited as authority (rule) Watts v. State
Ga. · 2020 · confidence medium
Although it appears that the trial court should have separately sentenced Watts for possession of a firearm by a first offender probationer, see Linson v. State, 287 Ga. 881, 885-886 (4) ( 700 SE2d 394 ) (2010), “when a merger error benefits a defendant and the State fails to raise it by cross-appeal,” Dixon v. State, 302 Ga. 691, 698 (4) ( 808 SE2d 696 ) (2017), we generally do not correct the error, and we decline to do so here.
discussed Cited as authority (rule) Elkins v. State
Ga. · 2019 · confidence medium
Although it appears that the trial court should have separately sentenced Appellant for first degree child cruelty, see Linson v. State, 287 Ga. 881, 885-886 ( 700 SE2d 394 ) (2010), “when a merger error benefits a defendant and the State fails to raise it by cross- appeal,” Dixon v. State, 302 Ga. 691, 698 ( 808 SE2d 696 ) (2017), we generally do not correct the error, and we decline to do so here.
discussed Cited as authority (rule) Vasquez v. State
Ga. · 2019 · confidence medium
Accordingly, even if the same conduct establishes the commission of both malice murder and cruelty to children [in the first degree], the two crimes do not merge. 15 See Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006) (adopting “required evidence” test for determining whether two different offenses merge). 43 (Citations and punctuation omitted.) Linson v. State, 287 Ga. 881, 885-886 (4) ( 700 SE2d 394 ) (2010).
discussed Cited as authority (rule) Cochran v. State
Ga. · 2019 · confidence medium
Here, the “trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence.” Parker v. State, 270 Ga. 256, 258 (2) ( 507 SE2d 744 ) (1998), disapproved on other grounds, Linson v. State, 287 Ga. 881, 886 (4) ( 700 SE2d 354 ) (2010).
discussed Cited as authority (rule) Koonce v. State
Ga. · 2019 · confidence medium
Koonce further contends that the detective’s testimony invaded the province of the jury, relying upon Bly, supra, 283 Ga. at 458 (2), and McCartney v. State, 262 Ga. 156, 159 (1) ( 414 SE2d 227 ) (1992), overruled on other grounds, Linson v. State, 287 Ga. 881, 886 (4) ( 700 SE2d 394 ) (2010), and improperly bolstered the credibility of another witness as to whether that witness was telling the truth, relying upon Word v. State, 308 Ga. App. 639, 642 ( 708 SE2d 623 ) (2011), Howie v. State, 281 Ga. App. 730, 732 ( 637 SE2d 134 ) (2006), and Patterson v. State, 278 Ga. App. 168, 170 ( 628 SE2…
discussed Cited as authority (rule) Roberts v. State
Ga. · 2019 · confidence medium
And that type of explanation would amount to “a permissible clarification of procedure” that does “‘not address the credibility of witnesses or any fact at issue in the trial.’” Brown v. State, 302 Ga. 454, 463 ( 807 SE2d 369 ) (2017) (quoting Linson v. State, 287 Ga. 881, 884 ( 700 SE2d 394 ) (2010)) (identifying no violation of OCGA § 17-8-57 where the trial judge explained to the jury that a video had been redacted so as to include only the relevant portions).
discussed Cited as authority (rule) Whatley v. the State
Ga. Ct. App. · 2017 · confidence medium
Accord Ellis v. State, 292 Ga. 276, 282 (3) ( 736 SE2d 412 ) (2013); Butler v. State, 290 Ga. 412, 416 (4) ( 721 SE2d 876 ) (2012); Linson v. State, 287 Ga. 881, 884 (2) ( 700 SE2d 394 ) (2010); Boyd v. State, 286 Ga. 166, 168 (3) ( 686 SE2d 109 ) (2009). 49 Ellis, 292 Ga. at 282 (3) (citation omitted). 50 See Burney, 299 Ga. at 822-823 (4) (The trial court commented, in the jury’s presence, that “I think we’ve heard from the witnesses, the eyewitnesses themselves where people were.
cited Cited as authority (rule) Walker-Madden v. State
Ga. · 2016 · confidence medium
Linson v. State, 287 Ga. 881, 885-886 (4) ( 700 SE2d 394 ) (2010).
cited Cited as authority (rule) Sullivan v. the State
Ga. Ct. App. · 2015 · confidence medium
(Citation and punctuation omitted.) Linson v. State, 287 Ga. 881, 885 (4) ( 700 SE2d 394 ) (2010).
examined Cited as authority (rule) Rouse v. State (5×) also: Cited "see, e.g."
Ga. · 2014 · confidence medium
The State asserts that reversal is not required because the court’s comment was a “slip of the tongue” or was needed “to orient the venire to the time and place the crime was alleged to have occurred.” None of the cases cited by the State in support of these propositions, however, involved an explicit comment by a trial judge indicating the court’s opinion that a critical element that must be proved by the State was not in dispute. 2 See Linson v. State, 287 Ga. 881, 883-884 ( 700 SE2d 394 ) (2010) (statement during preliminary instructions that State may not use all of its witness…
cited Cited as authority (rule) Lindsey v. State
Ga. · 2014 · confidence medium
See Foster v. State, 290 Ga. 599, 600-601 (2) ( 723 SE2d 663 ) (2012); Linson v. State, 287 Ga. 881, 883-884 (2) ( 700 SE2d 394 ) (2010). *347 3.
discussed Cited as authority (rule) Allaben v. State (2×)
Ga. · 2013 · confidence medium
These arguments have no merit. (1) Relying on Parker v. State, 270 Ga. 256 ( 507 SE2d 744 ) (1998), overruled on other grounds by Linson v. State, 287 Ga. 881, 886 ( 700 SE2d 394 ) (2010), the State contends that the verdict for reckless conduct does not logically exclude a finding of guilt for malice murder.
discussed Cited as authority (rule) Reyes v. State
Ga. Ct. App. · 2013 · confidence medium
Under these circumstances, the trial court did not err by failing to charge on “mere presence.” Muhammad, 243 Ga. at 406 ; Parker v. State, 270 Ga. 256, 258 ( 507 SE2d 744 ) (1998), overruled on other grounds, Linson v. State, 287 Ga. 881, 886 ( 700 SE2d 394 ) (2010). 3.
discussed Cited as authority (rule) Gerardo Reyes v. State
Ga. Ct. App. · 2013 · confidence medium
Under these circumstances, the trial court did not err by failing to charge on “mere presence.” Muhammad, 243 Ga. at 406 ; Parker v. State, 270 Ga. 256, 258 ( 507 SE2d 744 ) (1998), overruled on other grounds, Linson v. State, 287 Ga. 881, 886 (2010). 3.
examined Cited as authority (rule) Adrian Perkins v. State (3×) also: Cited "see, e.g."
Ga. Ct. App. · 2013 · confidence medium
Thus, Perkins’s argument that his conviction should be reversed because the trial court violated OCGA § 17-8-57 is without merit.4 3 Bush v. State, 317 Ga. App. 439, 441 (2) ( 731 SE2d 121 ) (2012). 4 See Linson, 287 Ga. at 883 (2); Wright, 294 Ga. App. at 21 (3) (trial court’s admonition to defense counsel to control his clients, who “think this is a comedy,” did not violate OCGA § 17-8-57 because it “was not directed toward a material issue nor was it an intimation on [the defendant’s] guilt or innocence.”). 5 2.
discussed Cited as authority (rule) Ingram v. State
Ga. · 2012 · confidence medium
“Because these comments were limited to a clarification of procedures and did not address the credibility of witnesses or any fact at issue in the trial, ‘they do not constitute a basis for reversal.’ [Cits.]” Linson v. State, 287 Ga. 881, 884 (2) ( 700 SE2d 394 ) (2010).
discussed Cited as authority (rule) Butler v. State
Ga. · 2012 · confidence medium
Furthermore, “ ‘we have previously determined that “remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Cit.)’ [Cit.]” Linson v. State, 287 Ga. 881, 884 (2) ( 700 SE2d 394 ) (2010).
discussed Cited as authority (rule) Ferrell v. State
Ga. Ct. App. · 2011 · confidence medium
Thompson v. State, 286 Ga. 891, 892 (2) ( 692 SE2d 384 ) (2010). 28 See Brogdon v. State, 270 Ga. App. 568, 569 (2) ( 607 SE2d 199 ) (2004) (“The instructions in a criminal trial should be tailored to the indictment and adjusted to the evidence admitted in court”) (citation and punctuation omitted). 29 OCGA § 17-8-57 provides that “[i]t is error for any judge in any criminal case ... to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” 30 (Citation omitted.) Linson v. State, 287 Ga. 881, 883 (2) ( 700 SE2d 394 ) (2010). 31 (Citat…
discussed Cited as authority (rule) Holland v. State
Ga. Ct. App. · 2011 · confidence medium
The Georgia Supreme Court has held, however, “that remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citation and punctuation omitted.) Linson v. State, 287 Ga. 881, 884 (2) ( 700 SE2d 394 ) (2010).
discussed Cited as authority (rule) Thomas v. State
Ga. Ct. App. · 2011 · confidence medium
Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006),] pursuant to OCGA §§ 16-1-6 (1), 16-1-7 (a) (1)) for determining when one offense is included in another: “(A) single act may constitute an offense which violates more than one statute, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. . . .” Linson v. State, 287 Ga. 881, 885 (4) ( 700 SE2d 394 ) (2010).
discussed Cited as authority (rule) Ledford v. State
Ga. · 2011 · confidence medium
If the same conduct established the commission of both offenses, it is [generally] necessary to take the next step in the analysis by applying the “required evidence” test[, as adopted in Drinkard pursuant to OCGA §§ 16-1-6 (1), 16-1-7 (a) (1),] for determining when one offense is included in another: “(A) single act may constitute an offense which violates more than one statute, ‘“and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the …
discussed Cited as authority (rule) Robertson v. State
Ga. Ct. App. · 2010 · confidence medium
Robertson does not pursue an ineffective assistance of counsel claim on appeal. 17 203 Ga. App. 146, 147 (2) ( 416 SE2d 125 ) (1992). 18 281 Ga. 211 ( 636 SE2d 530 ) (2006). 19 (Punctuation omitted.) Linson v. State, 287 Ga. 881, 885 (4) ( 700 SE2d 394 ) (2010). 20 (Punctuation omitted; emphasis supplied.) Waits v. State, 282 Ga. 1, 4 (2) ( 644 SE2d 127 ) (2007). 21 See id. at 4-5 . 22 See Rogers v. State, 298 Ga. App. 895, 897 (2) ( 681 SE2d 693 ) (2009) (conviction for possession of methamphetamine with intent to distribute did not merge with conviction for sale of methamphetamine because di…
examined Cited "see" Williams v. State (4×)
Ga. · 2021 · signal: see · confidence high
See Linson v. State, 287 Ga. 881, 885-886 (4) (700 SE2d 394) (2010) (“[E]ach crime requires proof of at least one additional element which the other does not. . . .
discussed Cited "see" Brown v. State (2×)
Ga. · 2017 · signal: see · confidence high
See Linson v. State, 287 Ga. 881, 884 ( 700 SE2d 394 ) (2010) (holding that because the court’s comments regarding the playing of a videotaped interview were limited to “a clarification of procedures and did not address the credibility of witnesses or any fact at issue in the trial,” they did not violateOCGA § 17-8-57).
discussed Cited "see" Brown v. State (2×)
Ga. · 2017 · signal: see · confidence high
See Linson v. State, 287 Ga. 881, 884 ( 700 SE2d 394 ) (2010) (holding that because the court’s comments regarding the playing of a videotaped interview were limited to “a clarification of procedures and did not address the credibility of witnesses or any fact at issue in the trial,” they did violate OCGA § 17-8-57).
examined Cited "see" Pyatt v. State (3×)
Ga. · 2016 · signal: see · confidence high
See McCartney v. State, 262 Ga. 156, 159 (1) ( 414 SE2d 227 ) (1992), overruled on other grounds, Linson v. State, 287 Ga. 881, 886 (4) ( 700 SE2d 394 ) (2010).
examined Cited "see" Perkins v. State (3×) also: Cited "see, e.g."
Ga. Ct. App. · 2013 · signal: see · confidence high
See Linson, 287 Ga. at 883 (2); Wright, 294 Ga. App. at 21 (3) (trial court’s admonition to defense counsel to controlhis clients, who “think this is a comedy,” didnot violate OCGA § 17-8-57 because it “was not directed toward a material issue nor was it an intimation on [the defendant’s] guilt or innocence”).
discussed Cited "see" Craft v. State (2×)
Ga. Ct. App. · 2011 · signal: see · confidence high
See Linson v. State, 287 Ga. 881, 883-884 (2) ( 700 SE2d 394 ) (2010). 30 Paul v. State, 272 Ga. 845, 848 (1) ( 537 SE2d 58 ) (2000) (citation and punctuation omitted) (noting that a judge’s display of “extreme anxiety” could be interpreted by the jury as an expression of its opinion on the issues to be decided in the case), overruled in part on other grounds by Ledford v. State, 289 Ga. 70, 84 (14) ( 709 SE2d 239 ) (2011). 31 See Division 3, supra. 32 297 Ga. App. 859 ( 678 SE2d 563 ) (2009). 33 Id. at 860 (1). 34 Id. 35 Id. 36 Id.
discussed Cited "see, e.g." Harris v. State (2×)
Ga. · 2016 · signal: see also · confidence medium
See also Parker v. State, 270 Ga. 256, 258 (3) ( 507 SE2d 744 ) (1998), overruled on other grounds, Linson v. State, 287 Ga. 881, 886 (4) ( 700 SE2d 394 ) (2010).
Retrieving the full opinion text from the archive…
Linson
v.
the State
S10A1225.
Supreme Court of Georgia.
Oct 4, 2010.
700 S.E.2d 394
2010 Ga. LEXIS 639
Julianne W. Holliday, for appellant., Peter J. Skandalakis, District Attorney, Monique L. Kirby, Timothy M. Marlow, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Sheila E. Gallow, Assistant Attorney General, for appellee.
Carley.
Cited by 53 opinions  |  Published
2 passages pin-cited by 3 cases
Pinpoint authority: #28,205 of 633,719
Citer courts: Supreme Court of Georgia (2) · Court of Appeals of Georgia (2)
CARLEY, Presiding Justice.

Appellant Vickie Faye Linson was charged with malice murder, felony murder, and cruelty to children, and, after a jury trial, she was found guilty of each offense. The trial court entered judgments of conviction on the guilty verdicts and imposed concurrent sentences of life imprisonment for malice murder and felony murder and 20 years for cruelty to children. A motion for new trial was denied, and Appellant appeals. *

1. Construed most strongly in support of the verdicts, the evidence shows that the victim of all crimes charged was Zi’Terrian Linson, who was Appellant’s 16-month-old son, was afraid of her, and had been physically abused by her on numerous occasions. Mario Johnson, who was Appellant’s co-defendant at trial, was her boyfriend and lived in the same apartment. On the morning of January 2, 2008, Appellant awakened Johnson and asked him to take care of[*882] the victim. She did not follow her usual practice of notifying her child care provider that the victim would not be coming that day. Although Appellant claimed that she heard the victim fall out of bed, she left for work, later telling friends that she heard him crying and knew that he was dying.

Johnson tried to console the victim, finally realized something was wrong, and sought help in a panicked and distraught manner. Emergency personnel found the victim cool to the touch and in a very grave condition. Appellant arrived and was unemotional, trying to obtain information from Johnson, and declining to ride in the ambulance or with the police escort. Having learned that the victim’s body was cool, Appellant falsely reported a problem with the apartment’s heating unit. She later incorrectly told police that she did not have a phone number for the child care provider. At the hospital, Johnson continued to be distraught and Appellant was unconcerned. Several witnesses testified to Appellant’s lack of grief and apparently insincere displays of grief when the victim’s death was announced and at the time of the funeral.

The forensic pathologist testified that the victim had extensive external and internal injuries which were caused by blunt force trauma, including a great amount of force to the abdomen, and were inconsistent with a single fall. The primary cause of death was internal bleeding from extensive lacerations to the liver. Relying on part of a statement by Johnson as to time and medical testimony presented by the defense, Appellant contends that the fatal injury was likely inflicted after she left home. However, according to the pathologist’s testimony and contrary to Appellant’s contention, the nature of the victim’s injuries and the temperature of his body indicate that those injuries and even the death itself could have occurred well before Appellant left for work.

Both Appellant and Johnson stipulated to the admissibility of polygraph examinations. The examination of Johnson was inconclusive as to whether he caused the injuries to the victim’s stomach, but Appellant’s examination strongly indicated deception in all of her relevant responses. See Johnson v. State, 281 Ga. 770, 771 (1) (642 SE2d 827) (2007); Hendrick v. State, 257 Ga. 514, 515 (3) (361 SE2d 169) (1987).

“£ “(Q)uestions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” (Cit.)’ (Cit.) It is the role of the jury to[*883] resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient. (Cit.)” [Cit.]

Phillips v. State, 287 Ga. 560, 561-562 (1) (697 SE2d 818) (2010). Reviewing the evidence in the light most favorable to the verdicts, we conclude that it was sufficient to exclude every reasonable hypothesis except for that of Appellant’s guilt and to authorize a rational trier of fact to find her guilty of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jackson v. State, 281 Ga. 705-706 (1) (642 SE2d 656) (2007).

2. Appellant urges that the trial court’s conduct, rulings, and comments compromised its neutrality and violated Appellant’s constitutional right to a fair, adversarial, and reliable trial, as codified in OCGA § 17-8-57.

The State argues that, because Appellant failed to object to any of the first three comments of which she complains, she has waived any error.

However, we have clarified that a violation of OCGA § 17-8-57 will always constitute “plain error,” meaning that the failure to object at trial will not waive the issue on appeal. [Cit.] On appeal, the issue is simply whether there was such a violation. If so, “(i)t is well established that th(e) statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial. (Cits.)” [Cit.]

State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

OCGA § 17-8-57 mandates reversal of the judgment in a criminal case where the trial court expresses its opinion “as to what has or has not been proved or as to the guilt of the accused ....” “Such reversal is required, though, only when such comments are made in the presence of the jury. [Cit.]” Johnson v. State, 278 Ga. 344, 346 (2) (602 SE2d 623) (2004). See also Lockaby v. State, 265 Ga. App. 527, 528 (1) (594 SE2d 729) (2004) (“ ‘the purpose of OCGA § 17-8-57 is to prevent the jury from being influenced’ ”). One comment of which Appellant complains occurred when the trial court, in an effort to keep the proceedings under control and to prevent a disturbance, warned Appellant outside the presence of the jury that she would be removed from the courtroom if she could not stay under control. “We find nothing improper in the trial court’s conduct.” Cheek v. State, 265 Ga. App. 15, 19 (3) (593 SE2d 55) (2003). See also Johnson v. State, supra.

Appellant also argues that the trial court erroneously expressed its opinion when it stated during preliminary instructions that the[*884] State may not use all of its witnesses and “may think they don’t need them all,” and when Johnson’s videotaped statement was stopped and the trial court explained to the jury that the parties were trying to shorten it and not be repetitive. The first comment was made in the context of an explanation of the procedures that would be followed for the receipt of evidence. The context of the second comment indicates that the trial court was explaining that the parties had agreed to present only part of the long videotape and were adhering to that agreement. Because these comments were limited to a clarification of procedures and did not address the credibility of witnesses or any fact at issue in the trial, “they do not constitute a basis for reversal.” John v. State, 282 Ga. 792, 795 (3) (653 SE2d 435) (2007). See also Humphrey v. State, 249 Ga. App. 805, 809 (4) (549 SE2d 144) (2001) (“comments that are ministerial do not violate” OCGA § 17-8-57).

Appellant further complains that the trial court, after noting that the prosecutor indicated in closing argument that she did not believe that Johnson was guilty of the murder charges, instructed the jury to fill in not guilty on both murder counts on Johnson’s verdict form. After defense counsel objected, the trial court instead instructed the jurors, over a renewed objection, that it was granting Johnson’s previously denied motion for directed verdict as to the murder charges based upon the evidence. While the better practice would have been for the trial court not to have indicated the reason why the murder charges against Johnson were “no longer before the jury, we have previously determined that ‘remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.’ [Cit.]” Holmes v. State, 210 Ga. App. 118 (1) (435 SE2d 492) (1993). The trial court did not express any opinion as to the sufficiency of the evidence against Appellant. Young v. State, 269 Ga. 490, 494 (4) (500 SE2d 583) (1998). See also Dixon v. State, 300 Ga. App. 183, 186 (3) (684 SE2d 679) (2009); Abbott v. State, 91 Ga. App. 380 (3) (85 SE2d 615) (1955). Furthermore, the trial court instructed the jurors that it did not intend by any ruling to express any opinion on the facts of the case, the credibility of witnesses, the evidence, or the guilt or innocence of the defendant. Holmes v. State, supra. See also Young v. State, supra. Accordingly, we find no violation of OCGA § 17-8-57.

3. Appellant contends, and the State concedes, that she could not be convicted of both malice murder and felony murder. Indeed, Appellant “murdered a single victim and can be sentenced for either malice or felony murder but not both. [Cits.]” Nix v. State, 280 Ga. 141, 142 (2) (625 SE2d 746) (2006). See also Malcolm v. State, 263 Ga. 369, 371 (4) (434 SE2d 479) (1993). The felony murder verdict was “ ‘simply surplusage, which (should) properly (have been)[*885] disposed of by the trial (court’s) [imposition] of only one life sentence for the [two] murder counts.’ [Cits.]” Malcolm v. State, supra at 372 (4). “Accordingly, the separate judgment of conviction and sentence for felony murder must be vacated.” Nix v. State, supra.

4. Appellant further contends that cruelty to children, which was the predicate offense for felony murder, merges into that count. Because the felony murder conviction must be vacated by operation of OCGA § 16-1-7, cruelty to children does not merge into felony murder and may be vacated only if it merges into malice murder as a lesser included offense thereof. Collum v. State, 281 Ga. 719, 724 (6) (642 SE2d 640) (2007). See also Malcolm v. State, supra at 372-374 (5). In Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006), “we disapproved the ‘actual evidence’ test and adopted the ‘required evidence’ test for determining when one offense is included in another under OCGA § 16-1-6 (1).” Waits v. State, 282 Ga. 1, 4 (2) (644 SE2d 127) (2007). The “required evidence” test does not apply “unless ‘the same conduct’ of the accused establishes the commission of multiple crimes. OCGA § 16-1-7 (a) (1). [Cit.]” Waits v. State, supra. The State concedes that the indictment charged Appellant in all three counts with the same conduct of striking the victim with a blunt object. However, assuming that the “same conduct” of Appellant established the commission of both malice murder and cruelty to children, merger of the two crimes is not required on this basis. If the same conduct established the commission of both offenses, it is necessary to take the next step in the analysis by applying the “required evidence” test for determining when one offense is included in another:

[A] single act may constitute an offense which violates more than one statute, “ ‘and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ (Cit.)” Drinkard v. Walker, supra at 215 ....

Waits v. State, supra.

Both malice murder and cruelty to children, as charged in the indictment, require a malicious intent. See OCGA §§ 16-5-1 (a), 16-5-70 (b). However, “ ‘(t)he fact that [such intent] supports an element in each crime does not warrant merging of the sentences where other mutually exclusive elements of the crimes remain.’ [Cit.]” Drinkard v. Walker, supra at 216. The other elements of the two offenses must be compared. “Malice murder, but not [cruelty to children], requires proof that the defendant caused the death of another human being .... OCGA § 16-5-1 (a).” Hutchins v. State, 284[*886] Ga. 395, 396 (667 SE2d 589) (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010). “Cruelty to children, but not [malice murder], requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain. OCGA § 16-5-70 (b).” Waits v. State, supra. See also Collum v. State, supra. “Therefore, each crime requires proof of at least one additional element which the other does not.” Waits v. State, supra at 4-5 (2). See also Hutchins v. State, supra. Furthermore, the crimes of malice murder and cruelty to children are not “so closely related that multiple convictions are prohibited under other provisions of OCGA §§ 16-1-6 and 16-1-7. Drinkard v. Walker, supra at 216, fn. 32.” Waits v. State, supra at 5 (2). See also Hutchins v. State, supra. Accordingly, “even if the ‘same conduct’ establishes the commission of both [malice murder] and cruelty to children, the two crimes do not merge . . ..” Waits v. State, supra.

Decided October 4, 2010. Julianne W. Holliday, for appellant. Peter J. Skandalakis, District Attorney, Monique L. Kirby, Timothy M. Marlow, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Sheila E. Gallow, Assistant Attorney General, for appellee.

Interestingly, this holding and portions of our analysis are not inconsistent with the following pre-Drinkard precedent involving the same crimes: Jackson v. State, 276 Ga. 94, 95 (5) (575 SE2d 447) (2003); Parker v. State, 270 Ga. 256, 257-258 (1) (507 SE2d 744) (1998); McCartney v. State, 262 Ga. 156, 160 (5) (414 SE2d 227) (1992). However, these cases are hereby overruled to the extent that they are inconsistent with any of our analysis under Drinkard.

Although we vacate the judgment of conviction and sentence for felony murder, the judgments of conviction and sentences for malice murder and cruelty to children are affirmed.

Judgments affirmed in part and vacated in part.

All the Justices concur.
*

The crimes occurred on January 2, 2008, and the grand jury returned an indictment on February 5, 2008. The jury found Appellant guilty on March 6,2009 and, on that same day, the trial court entered the judgments of conviction and sentences. The motion for new trial was filed on March 26, 2009, amended on January 15, 2010, and denied on January 19, 2010. Appellant filed the notice of appeal on February 9, 2010. The case was docketed in this Court for the April 2010 term and submitted for decision on the briefs.