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but only that the officer was engaged in carrying out official duties. The element of showing that the arrest being carried out was itself lawful is not required in a battery-on-an-officer charge. Accordingly, a charge of battery on an officer is subject to the affirmative defense that the person was resisting an unlawful arrest.” Not applicable here, however, as defendant did not admit committing the act; defendant denied touching the officer. 10. CAUSING/PERMITTING CHILD TO BE PRESENT DURING MANUFACTURE OF METHAMPHETAMINE Hall v. State, 309 Ga.App. 222, 709 S.E.2d 910 (April 11, 2011). Conviction for permitting a child to be present during manufacture of methamphetamine affirmed; evidence supported conviction. “[T]he evidence that Hall and her children resided in the trailer and that a bowl of striker plates containing the red phosphorus commonly used to manufacture the drug was found in the bedroom she shared with Passmore was sufficient to sustain her conviction for permitting a child to be present at the scene of methamphetamine manufacture. See, e.g., Wilson v. State, 231 Ga.App. 525, 526–527(1) (499 S.E.2d 911) (1998) (evidence of other occupants' access to contraband was insufficient as a matter of law to rebut the presumption that defendant who also occupied apartment was in possession of the contraband).” 11. CRUELTY TO CHILDREN New case! Everhart v. State, A16A0652, ___ Ga.App. ___, ___ S.E.2d ___, 2016 WL 3064872 (May 25, 2016). Child cruelty conviction reversed; counsel was ineffective for failing to file general demurrer to indictment. Charge that defendant failed to provide necessary sustenance to child by not obtaining medical care after injury failed to state an offense under the law. “Everhart argues that timely medical care does not qualify as ‘necessary sustenance’ under the statute. In this respect, he is correct. See Howell v. State , 180 Ga. App. 749, 751-52 (3) (350 S.E.2d 473) (1986).” “Necessary sustenance” refers to food and nourishment, not medical care. “‘The denial of necessary and appropriate medical care for a child under 18 years of age can constitute cruelty to a child when it causes the child “cruel or excessive physical or mental pain,” under OCGA § 16-5-70(b) but it does not constitute a denial of “sustenance”.’ Id. at 751-52 (3). In order for the State to have charged Everhart sufficiently with cruelty to children in the first degree for the failure to seek timely medical care following the severe beating of the victim, the State needed to allege that the failure maliciously caused the child ‘ cruel or excessive physical or mental pain .’ OCGA § 16-5-70(b) (emphasis added); see also Howell , 180 Ga. App. at 751-52 (3); Williams v. State , 285 Ga. App. 628, 629 (1) (647 S.E.2d 324) (2007). The State’s indictment omitted these essential elements of the crime and therefore failed to charge Everhart with any crime at all. Therefore, Count 1 of the indictment was fatally defective and would have been dismissed if Everhart’s counsel had filed a general demurrer.” Corvi v. State, 296 Ga. 557, 769 S.E.2d 388 (February 16, 2015). Evidence didn’t support convictions for second-degree child cruelty and reckless conduct relating to drowning deaths of two five-year olds in a family swimming pool. Indictment alleged that defendant negligently failed to reasonably supervise the children by engaging in a 45-minute telephone conversation, during which the children left the house and drowned in the backyard swimming pool. “Yet there was no evidence showing that the length of time appellant was on her phone call would have made a difference in the children's deaths. … An expert testified that a child could drown in as little as four to six minutes once submerged. Thus, it cannot be said that taking a 45–minute phone call in itself constituted a failure to reasonably supervise the children. Also, this is not a case where a caretaker left small children unattended in a pool or a similar objectively dangerous circumstance. Cf., Baker v. State, 280 Ga. 822, 633 S.E.2d 541 (2006) (man found guilty of reckless conduct where he left a three-year-old and a nine-month-old inside the home alone on the second floor and the infant was in his walker six feet away from a downward flight of stairs that was not barricaded for safety). Here, appellant never left the children alone in the house and she confirmed that they were in Sophia's room playing when she initiated her phone call. Appellant had told the girls they could not go swimming and there was no showing that the girls had a propensity to disobey appellant or other adults. While Sophia was described as a good swimmer, [fn] no evidence was presented that she would swim in her family's pool unsupervised or had a propensity to do so. Also, no evidence was presented that appellant routinely failed to supervise Mia, Sophia, or any other child in her care.” Distinguishing cases where pattern of negligent supervision by defendant was shown: “Cf., Kain v. State, [287 Ga.App. 45, 47-48, 650 S.E.2d 749 (2007)] (evidence sufficient to show criminal negligence constituting reckless conduct and cruelty to children in the second degree where woman regularly allowed her small children to roam outside alone, where woman regularly left them home alone, and where the children drowned one day while outside unattended); Reyes v. State, 242 Ga.App. 170(1), 529 S.E.2d 192 (2000) (evidence sufficient to show woman who routinely allowed her three-year-old to traverse a dangerous street while unattended was guilty of criminal negligence constituting reckless conduct when the child was found unconscious and mauled by an animal). Cf. also Johnson v. State, 292 Ga. 856, 857–858(1), 742 S.E.2d 460 (2013) (evidence sufficient to show woman guilty of criminal negligence constituting cruelty to a child in the second degree where child died of