FIRST DIVISION
BARNES, P. J.,
MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.gov/rules
August 25, 2026
In the Court of Appeals of Georgia
A26A0890. BARROS v. THE STATE.
BARNES, Presiding Judge.
A jury found Cledir Mendes Barros guilty of second-degree cruelty to children,
and Barrows appeals, challenging the sufficiency of the evidence. He also contends
that the trial court erred in denying his request to charge on the lesser included offense
of reckless conduct and that his trial counsel rendered ineffective assistance. For the
reasons discussed below, we find the evidence was sufficient to sustain the verdict, but
that the trial court’s failure to charge the jury on reckless conduct requires reversal.
Construed in favor of the verdict,1 the evidence shows that Barros was born in
Cape Verde, but moved to the United States as a child. He returned to Cape Verde
1
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). in 2009 where he met his future wife, Natiela. In 2011, Natiela gave birth to a child,
T. B. After Natiela moved to the United States, Barros began a relationship with
another woman who gave birth to S. B. Barros then returned to the United States in
2014, and he married Natiela in 2015. Natiela gave birth to two more children, L. B.
and C. B. When S. B. was three, she came to live with Barros and Natiela in the
United States.
In the fall of 2023, S. B. attended Harbins Elementary in Gwinnett County. She
was described as a sweet child who was academically gifted. However, teachers at the
school noticed that S. B. sustained multiple injuries. She had stitches in her forehead,
a bandage on her chin, a cut to her lip, an injured arm, and she was seen limping.
When a teacher asked S. B. about one injury, she responded “My mom said to say I
had an accident.” The teacher was concerned, and she reported the incident to the
school’s counselor, who reported it to the Department of Family and Children
Services (“DFCS”).
In October of 2023, S. B. began having behavioral issues at school. In
November, the school notified Natiela — who was the adult who communicated with
the school — about the behavioral issues. In response, Barros withdrew S. B. from
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school. One of S. B.’s teachers spoke with Barros to reassure him that the school
would work with S. B. on any behavioral issues, and Barros responded that he was
withdrawing S. B. for “religious reasons,” that she “was possessed by demons,” and
that her biological mother “was projecting demons” on her. He explained that S. B.
was his “punishment” because she had been born out of wedlock and that she had
been causing trouble in his marriage. He thus planned to have Natiela home school S.
B.
Also in November, DFCS contacted the family to investigate the report they
had received from S. B.’s school. Although L. B. reported to DFCS that her mother
had slapped S. B. in the face and caused bruising, Barros denied that there was any
mistreatment of S. B. in the home. He did, however, admit to one instance in which
Natiela “lost her cool” after S. B. lied and hit her in the back, causing her to fall and
hit her lip. DFCS did not pursue the case further.
On January 30, 2024, Barros — who worked as a truck driver — was driving on
I-75 when he received a call from Natiela at 12:41 PM telling him that she had killed
S. B. Barros then drove to the family home, which took over an hour. After
discovering S. B.’s corpse wrapped in a blanket, Barros called 911 and reported an
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unconscious person. By the time paramedics arrived, however, rigor mortis was
setting in. A subsequent autopsy showed that S. B. had been beaten so badly about the
back and neck with a rolling pin that she bled out internally.
Barros was arrested and charged with second-degree murder and two counts of
cruelty to children. The State, however, only prosecuted one count of second-degree
cruelty to children, and the trial court directed a verdict on the other two counts.2 The
jury found Barros guilty of that charge. Following the denial of his motion for new
trial, Barros appeals.
1. In his first enumeration of error, Barros argues that the evidence was
insufficient to establish the offense of second-degree cruelty to children. We disagree.
On appeal, . . . this Court does not weigh the evidence and does not
judge the credibility of the witnesses. Conflicts in the testimony of the
witnesses, including the state’s witnesses, are a matter of credibility for
the jury to resolve. We solely determine whether the evidence was
sufficient to sustain the verdict. As long as there is some competent
evidence, even though contradicted, to support each fact necessary to
make out the State’s case, the jury’s verdict will be upheld.
2
The other two counts were predicated on Barros’s failure to call 911 immediately. The evidence shows, however, that S. B. was already dead at that time.
4
Wells v. State, 309 Ga. App. 661, 663 (1) (710 SE2d 860) (2011) (citation modified).
Under OCGA § 16-5-70 (c), “[a]ny 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.” Our Supreme
Court has recognized that cruelty to children is a crime involving criminal negligence,
and criminal negligence is either an act or a failure to act, which demonstrates a
willful, wanton, or reckless disregard for the safety of others who might reasonably be
expected to be injured. Johnson v. State, 341 Ga. App. 425, 430 (1) (801 SE2d 294)
(2017).
According to Barros, the evidence was insufficient to show either that his
conduct caused S. B.’s physical and mental pain or that and his conduct was willful,
wanton or reckless as to constitute criminal negligence. Barros was charged with
second-degree cruelty for withdrawing S. B. from school to be home-schooled by
Natiela. And there was ample evidence from which a jury could conclude that Barros
knew that Natiela was abusive towards S. B. Not only did S. B. suffer injuries, which
Barros would have seen, he was clearly aware of the DFCS investigation into
suspected abuse. During this investigation, he conceded he had seen Natiela strike S.
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B. after losing “her cool,” causing the child to fall and hit her lip. Under these
circumstances, a jury could find Barros was criminally negligent by withdrawing his
child from school to spend the school day with someone he knew to be abusive. See
Johnson, 341 Ga. App. at 430 (1) (conviction upheld based on evidence that defendant
left her young children at home with a space heater, which caught fire killing one child
and injuring another); Pierre-Louis v. State, 329 Ga. App. 55, 57 (763 SE2d 513) (2014)
(conviction sustained where evidence showed defendant failed to intervene to prevent
injury to his child); Kain v. State, 287 Ga. App. 45, 46 (1) (650 SE2d 749) (2007)
(evidence sufficiently supported conviction where parent’s lack of supervision lead
to child’s death).
2. In his second enumeration of error, Barros argues that the trial court
committed reversible error in failing to give a jury charge on reckless conduct.
Although Barros requested the charge, the State argued that the charge was
inapplicable given Barros’s defense that he had no knowledge that Natiela was abusing
S. B.
A written request to charge a lesser included offense must always be
given if there is any evidence that the defendant is guilty of the lesser
included offense. But a request to charge must be legal, apt, and precisely
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adjusted to some principle involved in the case and be authorized by the
evidence. Further, when the evidence shows completion only of the
greater offense, it is unnecessary for the trial court to charge on the lesser
offense. Whether the defendant has presented sufficient evidence to
warrant a requested charge is a question of law.
Baughcum v. State, 379 Ga. App. 611, 617 (2) (930 SE2d 573) (2026) (punctuation
omitted).
As the Supreme Court has recognized, “reckless conduct may be a lesser
included offense of cruelty to children, if the harm to the child resulted from criminal
negligence rather than malicious or willful conduct.” Shah v. State, 300 Ga. 14, 19 (2)
(793 SE2d 81) (2016) (quotation marks omitted). In Shah, the Supreme Court
reversed a mother’s conviction for first-degree child cruelty based on the trial court’s
failure to give a requested charge on reckless conduct. That case involved allegations
that a mother had willfully and maliciously harmed her newborn, who died of
dehydration. Because there was evidence that the mother had left her child with her
14-year-old sibling, the Supreme Court determined that a jury could conclude the
death was caused by the mother’s negligent reliance on a teenaged caregiver rather
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than her willful failure to provide sustenance and thus a charge on reckless conduct
was required. Id. at 20-21 (2) (a).
Here, like in Shah, there is some evidence from which jurors could have
determined that Barros was guilty of reckless conduct rather than cruelty to children.
Reckless conduct is defined as the conscious disregard of a substantial and
unjustifiable risk. See OCGA § 16-5-60 (b). Given Barros’s testimony that he was only
aware of a single incident in which Natiela struck S. B. and that he subsequently
forbade corporal punishment, a properly instructed jury could have found that
Barros’s conduct in leaving S. B. with Natiela demonstrated a conscious disregard of
a substantial risk within the meaning of OCGA § 16-5-60 (b) rather than seconddegree cruelty to children. And because a requested charge on a lesser included
offense must be given if there is any evidence that a defendant is guilty of the lesser
offense, the trial court committed reversible error in failing to charge the jury on
reckless conduct. See Shah, 300 Ga. at 21-23 (2) (b); see also Jonker v. State, 376 Ga.
App. 344, 348–49 (2) (918 SE2d 616) (2025) (trial counsel rendered ineffective
assistance in failing to request reckless conduct charge in prosecution for first-degree
cruelty to children).
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3. In his final enumeration of error, Barros contends that he received ineffective
assistance of counsel. In light of our holding in division 2, we need not reach this claim
of error.
Judgment reversed. Markle and Hodges, JJ., concur.
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