MCCOY v. STATE (2026)

Following a jury trial, Morris McCoy was convicted of one count of family violence aggravated assault (strangulation) and two counts of third-degree cruelty to children based on an incident between McCoy and his wife, N. F.¹ McCoy appeals from the denial of his amended motion for new trial, arguing that the evidence was insufficient as to one of the counts of child cruelty and that the trial court erred in excluding child hearsay testimony. We affirm for the reasons that follow.

Viewed in the light most favorable to the jury verdict,² the evidence shows that, on April 30, 2023, McCoy was arrested in the parking lot of a Cherokee County Walmart after a bystander called the police and reported that a man was choking a woman. The bystander testified at the subsequent trial, and a recording of the call was played.

The victim of the aggravated assault, N. F., also testified at trial. On the day in question, McCoy and N. F. took their children to Walmart to shop for groceries. They had an argument in the store, and N. F. ultimately told McCoy to find another way home.

McCoy, however, got into the front seat of the car while N. F. was putting away groceries. N. F. told him to exit the car; when he refused to do so, she reached through the car and “hit him” on his shoulder. At that point, McCoy jumped out of the car, and they continued arguing while she tried to close the door behind him. N. F. and McCoy “wrestl[ed]” for control of the door until McCoy pinned her against the car. N. F. grabbed her keys and moved as if to punch McCoy in the face, at which point he backed away.

N. F. started to climb in the passenger seat, intending “to lock the passenger door, get the kids in the car and drive off.” However, McCoy caught her before she could get her legs inside and close the door. McCoy again pinned her against the car, put both of his hands around her throat, and “strangl[ed]” her, “choking” her to the point that she could not breathe and thought she would pass out. N. F. managed to grab “a machete knife in a sheath” that she kept next to the middle console. She never unclasped the knife, and the two were struggling over it when law enforcement arrived. While all of this was happening, their 14-year-old son (the “older child”) and McCoy's 12-year-son (“J. B.”) were nearby, either standing next to the car or sitting in the backseat.

When police arrived, N. F. told officers that McCoy had put both hands on her neck while holding her down in the car and “choking” or “strangling” her. Officers separately questioned McCoy and at least one bystander and took photos of the visible bruising on N. F.’s neck. Officers also viewed video from Walmart's parking lot surveillance cameras.

Ultimately, the jury found McCoy guilty of all three charges against him, and the trial court sentenced him as a recidivist. After hearing argument, the court denied McCoy's amended motion for new trial. This appeal follows.

1. In his first claim of error, McCoy argues the evidence was insufficient on the charge of cruelty regarding 12-year-old J. B. because the evidence failed to show that J. B. saw or heard the choking. We disagree.

OCGA § 16-5-70(d)(2) provides in relevant part that “[a]ny person commits the offense of cruelty to children in the third degree when: ․ [s]uch person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony[.]” Thus, “the Code section, by its plain terms, requires that the child see or hear the act of committing the underlying offense[.]”³

At trial, J. B. testified that during the incident, he was sitting in the backseat on the driver's side and was “on [his] phone[.]” He heard McCoy and N. F. arguing and yelling, but denied seeing McCoy choke N. F.

McCoy relies on this Court's recent decision in Fraga v. State ⁴ to argue that the evidence of child cruelty was insufficient as to J. B. In Fraga, we concluded that the evidence of child cruelty was insufficient because the 16-year-old daughter of the victim did not see or hear the defendant committing the underlying offense (placing a burning notebook on the victim's leg).⁵ We reversed the conviction, emphasizing that the daughter was not in the room when the assault occurred. Instead, the daughter “heard her mother and [the defendant] arguing, went upstairs into their bedroom, which smelled liked burned carpet, and heard her mom ‘talking about the notebook on the floor’ while [the defendant] stated that ‘he was going to burn down the house.’ ”⁶

Here, J. B. was either in the backseat or standing next to the car during the altercation, which was loud enough to draw the attention of the 911 caller and others. For at least a minute, McCoy choked N. F. with both hands on her neck, “pressing so hard on [her] neck [that] the top half of her body was actually inside the car” on the front passenger seat. The strangulation lasted long enough (“maybe two minutes”) that N. F. could not breathe and was starting to black out.

Although J. B. denied that he saw McCoy choke N. F., viewing the evidence in favor of the verdict, the jury could infer that J. B. at least heard the underlying aggravated assault by strangulation.⁷ “We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences derived from the facts. Likewise, we allow the jury to decide whether the defense theory was reasonable and not excluded by the other evidence.”⁸ Under the facts presented here, we conclude that the evidence was sufficient on the challenged child-cruelty count.

2. McCoy also contends that the trial court abused its discretion in excluding statements that the older child, J. F., made during his forensic interview, in which he apparently characterized N. F. as “the primary aggressor.” We disagree.

The decision of the trial court “whether to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion.”⁹

Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and ․ [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked.10

During N. F.’s cross-examination, McCoy tried to elicit evidence from the forensic interview of the older child, asking N. F. whether she would be “surprise[d] to find out that [the older child] indicated that [she] was the primary aggressor[.]” The State objected on hearsay grounds, and the trial court sustained the objection. It is only this ruling that McCoy appears to challenge on appeal.

McCoy relies only on OCGA § 24-8-820(a) as a basis for admitting the older child's out-of-court statements. This reliance is misguided as that provision allows certain child hearsay statements to come in through the testimony of the person to whom they were made: in this case, the forensic interviewer. McCoy appears to argue that the hearsay should have come in because the trial court had previously ruled all child hearsay testimony admissible on the State's motion, but he provides no citation to the record of any such blanket ruling or any authority allowing the hearsay to come in in this manner.¹¹

Moreover, “even if a trial court errs by imposing unwarranted limits on the trial of a case, there is no reversible error unless the appellant can show harm resulting from the court's action.”¹² Here, McCoy failed to proffer the excluded testimony to the trial court, so “we have no basis in the record to disturb the trial court's ruling.”¹³ And, to the extent that the evidence (J. F.’s out-of-court statement that N. F. was the primary aggressor) was apparent from the context,¹⁴ McCoy has failed to show that it would not have been cumulative of the live testimony presented at trial.¹⁵ Because it was highly probable that exclusion of the hearsay statement did not contribute to the verdicts, this claim of error fails.

Judgment affirmed.

FOOTNOTES

1.   See OCGA §§ 16-5-21(a)(3), (i); 16-5-70(d)(2); see also OCGA § 16-5-19(11) (“ ‘Strangulation’ means impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person.”).

2.   See Rankin v. State, 278 Ga. 704, 705, 606 S.E.2d 269 (2004).

3.   McCluskey v. State, 307 Ga. 740, 743(1)(a), 838 S.E.2d 270 (2020) (emphasis omitted).

4.   371 Ga. App. 430, 900 S.E.2d 737 (2024).

5.   See id. at 437(3), 900 S.E.2d 737.

6.   Id. at 431, 900 S.E.2d 737.

7.   Compare State v. Owens, 312 Ga. 212, 222-223(5), 862 S.E.2d 125 (2021) (even if the children had been asleep in the minivan, the jury could infer that a gunshot in the van would have awakened them), with McCluskey, 307 Ga. at 744(1)(a), 838 S.E.2d 270 (evidence insufficient where the victim's grandson was upstairs during the shooting, he testified that he never heard a gunshot, and the State failed to present any other evidence that would support a reasonable inference that he did).

8.   McCloud v. State, 371 Ga. App. 480, 484(1), 901 S.E.2d 315 (2024) (citation and punctuation omitted).

9.   Anglin v. State, 302 Ga. 333, 335(2), 806 S.E.2d 573 (2017).

10.   OCGA § 24-1-103(a)(2).

11.   See Court of Appeals Rule 25(d)(1).

12.   Vick v. State, 376 Ga. App. 716, 721(2), 920 S.E.2d 733 (2025) (citations and punctuation omitted).

13.   Id. (citations and punctuation omitted).

14.   See OCGA § 24-1-103(a)(2).

15.   See Neuman v. State, 311 Ga. 83, 94(4)(b)(ii), 856 S.E.2d 289 (2021) (erroneous exclusion of evidence is harmless where the excluded evidence is cumulative of other admitted evidence).

Watkins, Judge.

Brown, C. J., and Barnes, P. J., concur.