317 Ga. 519 FINAL COPY
S22G0747. BELL v. THE STATE.
ELLINGTON, Justice.
Following a jury trial, appellant Cortney Bell was found guilty
of murder in the second degree, cruelty to children in the second
degree, and felony contributing to the dependency of a minor in
connection with the death of her infant daughter, Caliyah. The
Court of Appeals reversed Bell’s convictions for second degree
murder and cruelty to children on appeal, concluding that the
evidence was insufficient to support those charges. Bell v. State, 362
Ga. App. 687, 699-703 (1), (2) (870 SE2d 20) (2022). It affirmed her
conviction for felony contributing to the dependency of a minor, and
we granted certiorari to determine whether the Court of Appeals
erred in holding that the evidence was legally sufficient to support
Bell’s conviction on that charge. Because we conclude based on the
facts of this case that the evidence was insufficient to authorize a
jury to conclude that Caliyah’s death was proximately caused by Bell’s conduct as alleged in the indictment, we reverse the judgment
of the Court of Appeals.1
The evidence presented at trial showed the following. In
October 2017, Bell lived with her boyfriend and co-defendant,
Christopher McNabb, and their two children, C. M., who was two
years old, and the victim, who was born on September 23, 2017. On
the evening of October 6, 2017, Bell and McNabb smoked
methamphetamine and later went to bed in their bedroom while
their children slept. They both got up the next morning at 5:00 a.m.
to change Caliyah’s diaper and feed and dress her in clean pajamas.
Bell then fell asleep on the living room couch until she was
awakened around 9:30 a.m. by the sound of McNabb’s phone when
he received a text message.2 Bell went back to sleep until around
1 The State’s petition for certiorari, in which the State sought to appeal
the Court of Appeals’ decision reversing Bell’s convictions for murder in the second degree and cruelty to children in the second degree, was denied by this Court. Accordingly, our review on certiorari is limited to the merits of the Court of Appeals’ decision related to Bell’s conviction for felony contributing to the dependency of a minor.
2 In her statement to police, Bell said that she thought both she and
McNabb went back to sleep on the couch after Caliyah’s 5:00 a.m. feeding.
2 10:30 a.m., when C. M. woke her and said that Caliyah was gone.
Bell called 911 after she could not find Caliyah but found her
pajamas on the bathroom floor. Bell told investigators that she had
last been with Caliyah at her 5:00 a.m. feeding and that both
children “were okay” when she was awakened at 9:30 a.m. by the
sound of McNabb’s phone. While being questioned by a sheriff’s
deputy, Bell stated that she did not know of anyone who would take
Caliyah, but that McNabb had been involved in a fight with a friend,
Matthew Lester, about six weeks earlier.3 She also said that
McNabb had never hit her, that she and McNabb “were not on
drugs,” and that she had not smoked marijuana in six weeks and
had not smoked methamphetamine in at least three years. There
were no signs of any type of trauma in the bedroom where Caliyah
Other evidence presented at trial showed that McNabb stayed awake for some period of time after the 5:00 a.m. feeding, and he then either fell asleep on the couch or was pretending to be asleep on the couch when he received a text at 9:30 a.m. 3 Investigators later learned that Lester and another man had come to
Bell’s home in September 2017, before Caliyah was born, to use drugs. McNabb became angry with Lester, attacked him with brass knuckles, and threw him out of the home. Neither Bell nor C. M. was in the home at the time this incident occurred. 3 had been sleeping with her sister and no signs of forced entry into
the home.
Caliyah’s body was discovered the next day in a wooded area
close to her home. An autopsy revealed that she died from blunt
impact injuries to her head and that she had numerous fractures to
the top and base of her skull, bruising to her left cheek and left
jawline, a cut underneath one of her eyes, and the upper palate of
her mouth was lacerated from front to back. A medical expert
testified that Caliyah had no healing bruises or evidence of previous
injuries and that her injuries would have resulted in almost
immediate death.
After Caliyah’s body was discovered, Bell admitted to
investigators that she, Bell, had been physically abused by McNabb,
and that the abuse caused bruising on her back, arms, and legs. Bell
explained in later interviews that McNabb had never abused either
of the children. There was no evidence that Caliyah or her sister had
been physically abused before Caliyah’s death.
McNabb was arrested on October 7, 2017, and charged with
4 murder and other crimes related to Caliyah’s death. A jury found
him guilty of all charges, and his convictions were affirmed by this
Court. See McNabb v. State, 313 Ga. 701 (872 SE2d 251) (2022). Bell
was arrested in January 2018, and pertinent to this appeal, she was
charged with and convicted of felony contributing to the dependency
of a minor. The Court of Appeals affirmed Bell’s conviction on that
charge, concluding that although Bell’s “acts of neglect were not the
sole proximate cause of the victim’s death, the evidence was
sufficient for the jury to conclude that those acts played a
substantial part in [the victim’s] death and that death was a
reasonably probable consequence of that neglect.” Bell, 362 Ga. App.
at 706 (3). In support of its conclusion, the Court of Appeals relied
on evidence showing that Bell used methamphetamine and
marijuana on a regular basis and allowed McNabb and others to do
the same in her house and that McNabb had hit Bell both before and
after Caliyah was born. Id. at 705-706 (3).
Bell contends that the Court of Appeals erred by concluding
that the evidence was sufficient to support her conviction for felony
5 contributing to the dependency of a minor because it failed to
establish that her acts or omissions proximately caused Caliyah’s
death. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt
2781, 61 LE2d 560) (1979). We evaluate a challenge to the
sufficiency of the evidence by viewing the evidence in the light most
favorable to the verdict, and asking whether any rational trier of fact
could have found the defendant guilty beyond a reasonable doubt of
the crimes of which she was convicted. See id.
In Count 3 of its indictment, the State charged Bell with felony
contributing to the dependency of a minor in violation of OCGA § 16-
12-1 (b) (3) and (d.1) (1). The indictment alleged that Bell caused
Caliyah’s death by failing “to provide proper parental care” and
“supervision necessary for [Caliyah’s] well-being, said act resulting
in [Caliyah] being a deprived child.”4 A person commits the crime of
contributing to the dependency of a minor when such person
4 Although the crime occurred and Bell’s indictment issued after the Juvenile Code was amended to eliminate the term “deprived child” and use, instead, the term “dependent child,” the indictment nonetheless used the old terminology, referring to the victim in the indictment as a “deprived child.” See OCGA § 15-11-2 (22). 6 “[w]illfully commits an act or acts or willfully fails to act when such
act or omission would cause a minor to be adjudicated to be a
dependent child[.]” OCGA § 16-12-1 (b) (3). A “dependent child” for
purposes of this appeal is defined as a child who has been “abused
or neglected and is in need of the protection of the court.”5 OCGA §
15-11-2 (22) (A).
The misdemeanor offense of contributing to the dependency of
a minor does not require as an element that a particular result come
from the accused’s acts. To sustain a conviction for felony
contributing to the dependency of a minor as charged in this case,
however, the State must prove an additional element, that the act
or omission that created the child’s dependency has produced a
particular result. OCGA § 16-12-1 (d.1) (1). By the plain terms of the
statute, to be guilty of felony contributing to the dependency of a
minor, the act or omission that created the child’s dependency must
have “resulted in the serious injury or death” of the child. Id.
5 OCGA § 15-11-2 (22) also defines a “dependent child” as a child who
“[h]as been placed for care or adoption in violation of law” or “[i]s without his or her parent, guardian, or legal custodian.” 7 The phrase “resulted in the serious injury or death of a child”
in OCGA § 16-12-1 (d.1) (1) has not been previously interpreted by
this Court. It is well established, however, that the “connection that
criminal law requires between the conduct and the result is
proximate cause.” Daddario v. State, 307 Ga. 179, 186 (2) (a) (835
SE2d 181) (2019). See State v. Jackson, 287 Ga. 646, 649 (2) (697
SE2d 757) (2010) (“Cause” in the felony murder statute means
proximate cause.). As we have stated, this is because
Georgia is a proximate cause state. When another meaning is not indicated by specific definition or context, the term “cause” is customarily interpreted in almost all legal contexts to mean “proximate cause” — that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.
Id. at 648 (2) (citation and punctuation omitted). See Hall v.
Wheeling, 282 Ga. 86, 86 (1) (646 SE2d 236) (2007) (interpreting
phrase “physically injures” in aggravated child molestation statute
to be synonymous with “causing physical injury”); In the Interest of
B. L. M., 228 Ga. App. 664, 664-665 (1) (492 SE2d 700) (1997)
(applying proximate cause analysis to charge of reckless
8 abandonment under OCGA § 16-5-72, a statute prohibiting the
abandonment of a child that results in death). See also 1 Wayne R.
LaFave, Substantive Criminal Law § 1.2 (b) (3d ed., Oct. 2022
update) (describing as one of the “basic premises which underlie the
whole of the Anglo-American substantive criminal law” the
proposition that “as to those crimes which require not only some
forbidden conduct but also some particular result of that conduct,
the conduct must be the ‘legal cause’ (often called ‘proximate cause’)
of the result”).
Proximate cause is “that which, in a natural and continuous
sequence, unbroken by any efficient intervening cause, produces
injury, and without which the result would not have occurred.”
Jackson, 287 Ga. at 648 (2) (citation and punctuation omitted). In a
criminal case, proximate cause exists if the act of the accused
“directly and materially contributed to the happening of a
subsequent accruing immediate cause of the death,” id. at 652 (2)
(citation and punctuation omitted), and it “imposes liability for the
reasonably foreseeable results of criminal (or, in the civil context,
9 tortious) conduct if there is no sufficient, independent, and
unforeseen intervening cause.” Id. at 654 (3). See also Skaggs v.
State, 278 Ga. 19, 19-20 (1) (596 SE2d 159) (2004). As a general rule,
an intervening act is reasonably foreseeable if it ensues “in the
ordinary course of events” or is “set in motion by the original wrong-
doer.” Jackson, 287 Ga. at 651 (2) n.4 (citation and punctuation
omitted). With regard to when a result or consequence of a criminal
or negligent act is “reasonably foreseeable,” we have stated that a
person
is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. It is important to recognize that “probable,” in the rule as to causation, does not mean “more likely than not,” but rather “not unlikely”; or, more definitely, such a chance of harm as would induce a prudent man not to run the risk[.]
Johnson v. Avis Rent A Car System, 311 Ga. 588, 592 (858 SE2d 23)
(2021) (citations and punctuation omitted).6 In other words,
6 We note that while civil cases like Johnson v. Avis Rent A Car System,
can be instructive regarding the concept of proximate cause and the related issues of foreseeability and probability, see Jackson, 287 Ga. at 654 (3), they
10 “probable” means “such a chance of harmful result that a prudent
man would foresee” the risk at issue here, i.e., the risk of serious
injury or death. See id. (citation and punctuation omitted).
Applying these principles, we conclude that the evidence was
insufficient to authorize the jury to conclude that Bell’s failure to
provide proper parental care, as alleged by the State, was the
proximate cause of Caliyah’s death.7 It is important to recognize at
the outset what this case is and what it is not. Based on the language
of the indictment, Bell could be found guilty of felony contributing
to the dependency of a minor if the evidence was sufficient for a
can be less helpful in terms of whether a particular set of facts meets the standard, given the different burdens of proof involved. 7 With regard to Bell’s charge of felony contributing to the dependency of
a minor, the jury was instructed that “[a] person commits the offense of contributing to the deprivation or dependency of a minor, or causing a child to be placed in need of services when such person willfully commits an act or acts, or willfully fails to act when such act or omission would cause a minor to be . . . adjudicated to be a dependent child.” Jurors were also told that “dependent child” means “a child who has been abused or neglected and is in need of protection of the court.” There is no evidence, however, that defense counsel requested, or the trial court gave any instruction to jurors about, what elements the State needed to prove to sustain a conviction for felony contributing to the dependency of a minor, i.e., that the defendant’s acts or omissions that created the dependency “resulted in the serious injury or death of the child.” Nor were they given any instructions related to the issue of proximate causation. 11 rational jury to find that Caliyah’s death was caused by or was the
reasonably foreseeable result of Bell’s failure to provide Caliyah
with proper parental care. The State attempted to show the required
causal connection under two theories.
Under the first theory, the State argued that Bell’s use of drugs
or her tolerance of drug use by others in the home contributed to
Caliyah’s death. But there was no evidence that Caliyah died from
the ingestion of drugs or that Bell’s drug use proximately caused her
death. Compare Williams v. State, 298 Ga. 208, 213-214 (2) (b) (779
SE2d 304) (2015). Indeed, the State’s medical expert testified that
the immediate cause of Caliyah’s death was blunt force injuries to
her head. Although the evidence showed that Bell and McNabb used
methamphetamine the night before Caliyah’s death, it also showed
that Caliyah was fed and put to bed and that both of her parents
checked on her at 5:00 a.m. There was no evidence that as a
consequence of her drug use, Bell was unable to care for Caliyah or
was unable to wake up.
Nor was any evidence offered, either anecdotal or through
12 expert testimony, demonstrating that it was not merely possible, but
probable, that Bell’s tolerance of McNabb’s drug use would lead to
his violent conduct toward Caliyah. Compare Martin v. Six Flags
Over Georgia II, 301 Ga. 323, 332 (II) (A) (801 SE2d 24) (2017) (Gang
attack at amusement park bus stop was reasonably foreseeable
where the evidence showed there had been multiple incidents of
gang disturbances in the amusement park and the attack on the
victim started in the amusement park.). And there was no evidence
presented that drug use, by itself, foretells violent acts against
children. Given the dearth of evidence presented at trial to support
the State’s first theory of Bell’s criminal responsibility, we cannot
say that the evidence was sufficient as a matter of constitutional due
process to authorize the jury to conclude that Caliyah’s death by
blunt force injuries was a reasonably foreseeable consequence of
either Bell’s or McNabb’s drug use. See Jackson, 443 U. S. at 319
(III) (B). Compare Virger v. State, 305 Ga. 281, 289 (3) (824 SE2d
346) (2019) (Evidence that defendant failed to seek medical
attention for child after her co-defendant injured the child was
13 sufficient to authorize jury to find that defendant’s failure to seek
medical aid was a proximate cause of the child’s death.); Johnson v.
State, 292 Ga. 856, 857-858 (1) (742 SE2d 460) (2013) (The jury could
reasonably conclude the defendant’s criminal negligence
proximately caused the child victim’s death from ingestion of
methadone where the evidence showed the victim had fallen ill for
several hours before the defendant sought medical attention and the
defendant had previously given the victim crushed prescription
Xanax in his milk.).
The second basis for the State’s theory of Bell’s guilt was that
Caliyah’s death, even though directly caused by McNabb’s criminal
actions, was foreseeable because Bell failed “to provide proper
parental care” by choosing to live with McNabb, who had been
violent toward Bell. The question to be decided under this theory is
whether there was sufficient evidence to authorize the jury to
conclude that Caliyah’s death was a reasonably foreseeable
consequence of Bell’s decision to live with McNabb.
As stated above, proximate cause imposes liability for an act or
14 omission if there is no sufficient, independent, and unforeseen
intervening cause. And the doctrine of intervening cause provides
that there can be no proximate cause where an independent act or
omission of someone other than the defendant, which is
unforeseeable by the defendant and is itself sufficient to cause an
injury, intervenes between the defendant’s act or omission and the
injury. City of Richmond Hill v. Maia, 301 Ga. 257, 259 (1) (800
SE2d 573) (2017). See also Menzies v. State, 304 Ga. 156, 161 (II)
(816 SE2d 638) (2018) (applying the concept of “intervening cause”
in a criminal case). Here, although it was undisputed that McNabb’s
acts were sufficient, by themselves, to cause Caliyah’s death, the
State attempted to show that his violent acts were not an
intervening cause of the victim’s death because they were
foreseeable, and thus, they did not break the chain of causation
between Bell’s decision to live with McNabb and Caliyah’s death. In
support of this theory, the State relied on evidence that McNabb had
previously hit Bell and Lester. There was, however, no evidence
presented that McNabb had ever physically abused or threatened to
15 physically abuse his children, and while evidence that McNabb had
previously hit Bell and Lester may have made McNabb’s violent act
of crushing his daughter’s skull possible, this evidence alone did not
make the occurrence of such abuse reasonably foreseeable. That is
not to say that knowledge of previous violence by another caregiver
can never make violence against another person foreseeable, only
that, under the unique facts of this case, the evidence presented to
the jury was insufficient to meet the standard of reasonable
probability. To hold otherwise would lead to the result that every
parent who knows their child’s other parent or caregiver had
previously hit an adult could be exposed to potential felony criminal
liability for the intervening criminal acts of the other person. In the
absence of evidence showing that McNabb’s violent conduct toward
Caliyah was reasonably foreseeable to Bell, we cannot say that the
evidence presented to the jury was sufficient to establish the
required proximate cause between Bell’s decision to live with
McNabb and the specific injuries that resulted in Caliyah’s death.
See Morris v. Baxter, 225 Ga. App. 186, 186-188 (483 SE2d 650)
16 (1997) (affirming grant of summary judgment to defendant in
wrongful death case because victim’s death, which resulted from a
self-inflicted gunshot, was not a foreseeable consequence of the
defendant’s act of leaving the rifle in his home where victim could
access it, despite evidence that the defendant knew the victim was
depressed, knew she suffered from diminished mental health, and
knew the victim had indicated that she was “bored with life”).
Compare Brown v. State, 297 Ga. 685, 687-688 (2) (777 SE2d 466)
(2015) (Evidence of defendant’s acts of depriving victim of
sustenance was found to be a proximate cause of the victim’s death
where the evidence showed that the victim’s starvation severely
affected his ability to heal from the physical abuse he suffered at the
hands of the defendant and another.); Bagby v. State, 274 Ga. 222,
223 (552 SE2d 807) (2001) (Evidence that the defendant left her
boyfriend at home alone with the victim and the victim died shortly
after defendant’s return was sufficient to support defendant’s
conviction of contributing to the delinquency of a minor where the
evidence showed that the defendant and her boyfriend used
17 methamphetamine before the defendant left home and the
defendant knew that drug use “tended to exacerbate” her boyfriend’s
violent behavior, that her boyfriend had previously threatened to
harm the victim, and that her boyfriend had previously hit and
bitten the victim and beat the victim about the face one week before
her death.); Melancon v. State, 368 Ga. App. 340, 344-345 (1) (890
SE2d 113) (2023) (Evidence of proximate cause in case involving the
death of a child was found to be sufficient where the evidence
showed the defendant, the father of the victim, knew the victim’s
mother was abusing her, he interfered to prevent the State’s
investigation into the mother’s abuse of the victim, and the victim
later died from an intentionally inflicted massive head trauma
inflicted by her mother.).
The Court of Appeals cited three cases for its opposite
conclusion, but these cases, in fact, highlight the lack of evidence
establishing the causal connection between Bell’s conduct and
Caliyah’s death. The first case, Williams, 298 Ga. 208, involved a
defendant who hid cocaine in a couch, within the reach of a child
18 who found the cocaine, ingested it, and died. In the second case, In
the Interest of B. L. M., 228 Ga. App. at 665 (1), the defendant
abandoned a child, leaving the child exposed to the elements and
causing the child’s death. In both of these cases, there was no
intervening cause of the victims’ deaths. The third case, Skaggs, 278
Ga. at 19-20 (1), is factually more similar to this one in that it
involved an intervening cause that produced injury to the victim.
The victim in Skaggs died after the defendant kicked him in the
head with steel-toed boots, causing the victim to fall to the ground,
where he hit his head on the concrete. We upheld Skaggs’ conviction
for felony murder predicated on the commission of an aggravated
assault because, even though the immediate cause of the victim’s
death was the injuries he suffered in the fall, “the fall itself was the
direct and immediate result of the blows administered by Skaggs”
and “[t]he only intervening force was gravity.” Id. at 20 (1). In each
of these cases, the victims’ deaths were caused by the defendants’
acts and the consequence of death or injury was not just merely
possible from the defendants’ acts, but such consequence was
19 probable. The risk of the specific harm to Caliyah that resulted in
her death as the result of McNabb’s acts, was, in comparison, far less
appreciable.
In summary, the evidence here showed that Bell went to sleep
one night, checked on Caliyah early the next morning, and went
back to sleep for four and one-half hours. The evidence further
showed that while Bell slept, McNabb committed a violent crime
that the State conceded was the direct and immediate cause of
Caliyah’s death. There was no evidence that Caliyah’s death was a
reasonably foreseeable consequence of Bell’s drug use or drug use in
the home by McNabb or others or that it was reasonably foreseeable
that McNabb would commit the horrific crimes that resulted in
Caliyah’s death. And there was no evidence presented that showed
Bell was a party to McNabb’s crimes, that she heard McNabb
striking Caliyah and did nothing to stop him, or that she refused to
provide Caliyah with potentially life-saving medical treatment.8 In
8 In fact, the prosecutor told jurors during closing argument that “[i]f
[Bell] had seen, if she had woken up and heard or seen McNabb beating on her
20 the absence of evidence from which a reasonable jury could infer that
Bell’s conduct proximately caused Caliyah’s death, compare
Williams, 298 Ga. at 213 (2) (a), the evidence presented to the jury
was simply insufficient as a matter of constitutional due process to
support her conviction for felony contributing to the dependency of
a minor. Accordingly, the decision of the Court of Appeals is
reversed.
Judgment reversed. All the Justices concur, except Pinson, J., disqualified.
Decided October 24, 2023.
Certiorari to the Court of Appeals of Georgia — 362 Ga. App.
687.
Crawford & Boyle, Eric C. Crawford, for appellant.
Randal M. McGinley, District Attorney, Alexandra J. Stone,
Assistant District Attorney, for appellee.
child, I bet you she would have run in there and got into it and tried to fight off McNabb. I don’t think she would ever just sit and watch that happen.” 21