Owens v. State

• Court: Supreme Court of Georgia
• Decided: February 17, 2026
• Docket: S25A1229
• Status: Published

Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

Decided: February 17, 2026

S25A1229. OWENS v. THE STATE.

BETHEL, Justice.

In 2013, a jury found Maria Owens guilty of felony murder,

involuntary manslaughter, and other crimes in connection with the

death of eleven-month-old Jaylen Kelly. We reversed Owens’s

convictions, applying our since-overruled precedent providing that

guilty verdicts for crimes with different mental states are mutually

exclusive when based on one criminal act against one victim. See

State v. Owens, 296 Ga. 205, 211–12 (2014) (“Owens I”). We

abrogated that precedent the following year, concluding that guilty

verdicts for negligence and intent crimes are not categorically

mutually exclusive because proof of a more culpable mental state

does not negate proof of a less culpable mental state. See Springer

v. State, 297 Ga. 376, 380–81 (2015). Nonetheless, the trial court in Owens’s 2020 retrial instructed the jury that it could not find Owens

guilty of both involuntary manslaughter (requiring criminal

negligence, as charged) and aggravated assault and first-degree

child cruelty (requiring criminal intent). The jury again found

Owens guilty of felony murder and several other crimes. 1

Owens now appeals her convictions, arguing, among other

things, that the trial court’s instruction was erroneous. We agree

that the charge was erroneous and harmful as to Owens’s homicide

charges, because we rejected the mutually-exclusive-mental-states

rule years before Owens’s retrial, so we reverse Owens’s felony

murder conviction. But Owens may be retried for felony murder

because the evidence was constitutionally sufficient to support the

1 The crimes occurred on June 1, 2011. After this case was remanded in

Owens I, Owens was retried in January 2020 on two counts of felony murder, one count of aggravated assault, and one count of cruelty to children in the first degree. The jury found Owens guilty on all counts. The trial court then sentenced Owens to serve life in prison on the first felony murder count and twenty years concurrent on the child cruelty count. The remaining counts merged or were vacated by operation of law. Owens filed a timely motion for new trial, which was amended several times beginning in 2023. The trial court denied the motion on April 23, 2025. Owens filed a timely notice of appeal, and the case was docketed to this Court’s August 2025 term and orally argued on October 23, 2025. 2 guilty verdicts on those counts. We leave undisturbed Owens’s

conviction for child cruelty because the erroneous charge did not

impact that conviction, but we vacate the sentence on that conviction

because the sentencing disposition of that count will depend on the

ultimate resolution of Owens’s felony murder charges.

1. (a) We recited the evidence from Owens’s first trial in detail

in Owens I. Id. at 205–07.2 In short, that evidence showed that on

the morning of Jaylen’s death, his parents left him in Owens’s care

on their way to work. Id. at 205–06. Jaylen was in good health that

morning, and his parents testified that he was acting normally,

including walking and playing with his siblings. Id. at 206. Owens

contacted Jaylen’s mother later that morning, telling her that

Jaylen was having trouble breathing. Id. at 206. Owens then called

911, and emergency personnel responded, transported him to a

hospital, and ultimately life-flighted Jaylen to an Atlanta children’s

hospital. Id. Doctors could not stabilize Jaylen, who was in cardiac

2 We addressed the sufficiency of the evidence supporting Owens’s convictions in Owens I, so we laid out that evidence in detail and viewed it in the light most favorable to the verdicts. 296 Ga. at 207. 3 arrest upon arrival, and he died shortly after. Id.

Police arrested Owens the following day. Id. During a pre-

arrest interrogation, Owens told police that Jaylen was congested,

that she had lifted him by one arm and “patted” or “hit” him on his

side to make him cough, and that Jaylen screamed when she did so.

Id. at 206–07. She also told police that Jaylen was acting normally

before that. Id. at 207.

At trial, the medical examiner testified that Jaylen’s cause of

death was blunt-force trauma to the torso and that his manner of

death was homicide. Id. The trauma, which was caused by a “very

hard blow,” caused fatal internal bleeding from a fracture in Jaylen’s

back and would have rendered him unable to walk. Id. Owens’s own

medical expert largely agreed, but he opined that the fracture had

occurred several days before Jaylen’s death. Id. He could not,

however, explain how Jaylen would have been able to walk or

otherwise not exhibit any feelings of pain. Id. at 207 n.6.

The jury ultimately acquitted Owens of malice murder but

found her guilty of felony murder, felony involuntary manslaughter,

4 aggravated assault, and first-degree child cruelty. Id. at 205 n.1. The

trial court sentenced Owens to serve ten years in prison on the

involuntary manslaughter charge and purported to merge the other

counts into the malice murder count. The State appealed, arguing

that the trial court sentenced Owens incorrectly. Id. at 205–06. We

agreed with the State but ultimately reversed Owens’s involuntary

manslaughter conviction because the felony murder and involuntary

manslaughter verdicts could have reflected a finding that Owens

acted with both criminal intent and criminal negligence during a

single criminal act, which would render those verdicts “mutually

exclusive.” Id. at 208–10 (quoting Jackson v. State, 276 Ga. 408, 410

(2003)). An ambiguity in the verdict form “created a reasonable

possibility that the jury found [Owens] guilty of felony involuntary

manslaughter based on reckless conduct”— mutually exclusive of

the guilty verdicts on her felony murder counts. Id. So we vacated

all of Owens’s convictions and remanded for a new trial. Id. at 212.

(b) The following year, we abrogated Owens I. In Springer v.

State, we held that “multiple guilty verdicts for the same conduct

5 that are based on varying levels of mens rea are not mutually

exclusive.” 297 Ga. at 382. We reasoned that, when one crime is a

lesser-included offense of another crime, and the only distinction

between them is the level of mental culpability, proof of a more

culpable mental state does not negate proof of a less culpable mental

state. Id. at 381. So guilty verdicts for both a crime requiring

criminal intent and its lesser-included offense requiring criminal

negligence are not mutually exclusive. Id. at 381–82. Accordingly,

we overruled Jackson v. State, the source of the mutually-exclusive-

mental-states rule, and other cases relying on it. Id. at 383 & n.4.

(c) Owens was retried in 2020. The evidence presented at the

second trial largely mirrored the evidence from the first. As at

Owens’s first trial, 3 both parties presented extensive evidence and

testimony about the source of Jaylen’s injuries, and Owens’s mental

culpability was a central issue. Owens again acknowledged that she

3 Because we are now evaluating whether a clear error affected the outcome of Owens’s retrial, we review the record de novo and weigh the evidence as we expect a reasonable jury would have. See Smith v. State, 313 Ga. 584, 588 (2022). 6 “patted” Jaylen on the back on the day of his death, but she asserted

that her conduct at most exacerbated a preexisting injury caused by

someone else. The State in turn emphasized testimony that Jaylen’s

spinal injuries would have made it impossible to walk and were so

catastrophic that they could have resulted only from intentional

conduct inflicted while Jaylen was in Owens’s care. The jury

ultimately found Owens guilty on all counts, but it left the verdict

form blank as to the lesser-included involuntary manslaughter

charge under each felony murder count.

2. On appeal, Owens first argues that the trial court’s response

to a jury question—informing the jury that it could not find Owens

guilty of involuntary manslaughter if it found her guilty of

aggravated assault and child cruelty—was incorrect because we

overruled Owens I and other cases concerning our former mutually-

exclusive-mental-states rule well before Owens’s retrial. We agree.

(a) The record reflects that, during the initial jury charge, the

trial court twice addressed the relationship between criminal intent

and criminal negligence. The court instructed the jury that it could

7 not find Owens guilty of both felony murder and involuntary

manslaughter because the former was predicated on an intent crime

and the latter on a negligence crime and the two mental states were

mutually exclusive. The trial court also instructed the jury that if it

found Owens guilty of involuntary manslaughter, it could not also

find her guilty of first-degree child cruelty and aggravated assault.

Owens did not object to any part of the jury charge.

The jury posed several questions to the trial court during

deliberations. Relevant here, one question asked: “If we were to find

the defendant guilty of [aggravated assault and first-degree child

cruelty], is involuntary manslaughter on counts one and two still an

option?” Without consulting the parties, the trial court responded:

[N]o, because … they would be inconsistent verdicts, because counts three and four require criminal intent, and … the lesser offense of one and two, involuntary manslaughter, with the underlying misdemeanor being reckless conduct, requires -- is a crime of negligence, and you can’t have negligence and intent.

Owens’s trial counsel immediately responded, “Your honor, if we

could check that one second.” Without acknowledging that comment,

the trial court stated to the jury, “You have to have one or the other. 8 You can’t have intent plus negligence. The law says that they are

mutually exclusive.”

After the jury returned to the jury room, the trial court asked

the parties if they had anything to add. Owens’s trial counsel said,

“I’d just like to double-check that. I have a case that our appeals

section sent that I’m going to read real quick.” Owens’s trial counsel

pointed to Springer for the proposition that guilty verdicts for

aggravated assault and reckless conduct are not mutually exclusive.

But the trial court was unpersuaded, stating that Owens I was “the

exact facts of this case” and controlled on the mutual exclusivity

issue. The trial court later reasoned that, pursuant to the “law of the

case” doctrine, it was constrained to instruct the jury on mutually

exclusive verdicts consistent with Owens I.

(b) The parties dispute which standard of review applies here.

Owens argues that her trial counsel preserved the issue for appeal

with a contemporaneous objection to the trial court’s answer to the

jury question. The State argues that Owens’s claim is subject only

to plain error review because her trial counsel failed to object to the

9 trial court’s answer before the jury returned to deliberate. We need

not resolve this dispute because, for the reasons explained below,

her first enumeration succeeds under either standard of review.4 So

we apply the more stringent plain error review: Owens must show

that the trial court made a legal error that was not affirmatively

waived, was “clear and obvious,” likely affected the outcome of the

trial, and “seriously affected the fairness, integrity, or public

4 The State cites OCGA § 17-8-58(b), which provides that “[f]ailure to

object … to any portion of the [jury] charge … before the jury retires to deliberate … preclude[s] appellate review of such portion of the jury charge” unless that charge constitutes plain error. The State argues that Owens failed to preserve her objection to the answer to the jury question because she did not object until after the jury returned to the jury room. We note, however, that the trial court answered the jury’s question without conferring with the parties or giving them time to object and immediately excused the jury to return to deliberations before asking the parties for their input on the response. Given that unusual procedure (for which the court later apologized, Owens’s trial counsel arguably could have done nothing more to preserve this issue. On the other hand, toward the end of trial the trial court asked the parties whether the jury could find Owens guilty of the predicate felonies if it found her guilty of involuntary manslaughter—essentially the answer the trial court later gave in response to the jury question, just stated in the inverse. Owens’s attorney answered affirmatively. And she did not object when the trial court reiterated that misstatement of law. Nor did she object when the trial court again reiterated that misstatement to the jury during the initial charge. So Owens arguably waited until the last possible moment to object to that misstatement, apparently because she learned of our ruling in Springer only after the jury left to deliberate. Regardless, we need not resolve the preservation question here. 10 reputation of judicial proceedings.” Dees v. State, 322 Ga. 498, 500–

01 (2025). See also, e.g., Hampton v. State, 302 Ga. 166, 167–68

(2017) (applying plain error review under OCGA § 17-8-58(b) to

forfeited argument about trial court’s answer to jury question).

(i) Owens has shown that the trial court’s answer to the jury

question was legal error and was not affirmatively waived. We view

jury instructions, including a recharge given in response to a jury

question, as a whole to determine whether they accurately state the

law. See, e.g., Stepp-McCommons v. State, 309 Ga. 400, 405–06

(2020); Guajardo v. State, 290 Ga. 172, 175–76 (2011). And a trial

court’s failure to state the law accurately in charging the jury can be

legal error. See, e.g., Stanbury v. State, 299 Ga. 125, 129–31 (2016).

Here, the trial court answered the jury’s question by informing the

jury that, if it found Owens guilty of aggravated assault and child

cruelty (intent crimes), it could not also find her guilty of involuntary

manslaughter based on reckless conduct (a negligence crime). That

was consistent with the trial court’s earlier instructions, including

multiple statements that the jury could not convict Owens of

11 negligence and intent crimes and a statement that, if the jury found

Owens guilty of involuntary manslaughter rather than felony

murder, it could not also find her guilty of the predicate felonies—

aggravated assault and child cruelty. The trial court invariably

conveyed to the jury that guilty verdicts for negligence crimes and

intent crimes are mutually exclusive and prohibited the jury from

returning guilty verdicts on both negligence and intent crimes.

But “convictions for both an offense requiring criminal intent

and an offense requiring a lesser mens rea, based on the same act

against the same victim, are not mutually exclusive.” Booth v.

State, 311 Ga. 374, 376 (2021). As we held years before Owens’s

retrial, proof of a more culpable mental state necessary for

conviction of a greater offense does not negate proof of a less culpable

mental state necessary for conviction of a lesser-included offense.

Springer, 297 Ga. at 380–82. So a defendant can, for example, be

found guilty of aggravated assault (an intent crime) and its lesser-

included offense of reckless conduct (a negligence crime, and a

predicate for involuntary manslaughter). Id. Proof of criminal intent

12 required for aggravated assault subsumes rather than negates proof

of criminal negligence required for reckless conduct or for

involuntary manslaughter based on reckless conduct. Id. at 382–83.

That means the jury here could have found Owens guilty of

involuntary manslaughter based on reckless conduct, aggravated

assault, and child cruelty—the verdict it raised as a possibility in its

question to the trial court, and nearly the exact verdict we approved

in Springer.5 The trial court repeatedly told the jury otherwise, and

that was error. See, e.g., Stanbury, 299 Ga. at 129–31.

Moreover, the parties do not argue that Owens affirmatively

waived this error. The State argues that, at most, Owens forfeited

the issue by failing to timely object to the trial court’s answer to the

jury question. The “failure to object is more appropriately described

as a forfeiture,” Cheddersingh v. State, 290 Ga. 680, 684 (2012), so

5 Springer did not involve a child cruelty charge, but reckless conduct

can be a lesser-included offense to first-degree child cruelty, see Shah v. State, 300 Ga. 14, 19 (2016), just as it can be a lesser-included offense to aggravated assault, see Springer, 297 Ga. at 377. The inclusion of a child cruelty count does not make our precedent any less clear: the trial court should have answered the jury’s question affirmatively. See id. 13 Owens has satisfied the first prong of plain error review.

(ii) Owens has also shown that the trial court’s error was clear

and obvious. A defendant challenging a jury instruction on plain

error review cannot merely demonstrate that the trial court

committed “actual legal error”; she must show that the challenged

instruction had “an obvious defect rather than a merely arguable

defect.” Hill v. State, 321 Ga. 177, 181–82 (2025) (quotation marks

omitted). Generally, a defect is obvious when there is “on-point

controlling authority or the unequivocally clear words of a statute or

rule that plainly establish that the trial court erred[.]” Dees, 322 Ga.

at 500 (quotation marks omitted). And “whether an error is

considered ‘clear or obvious’ under the second prong of the plain

error test is judged under the law existing at the time of appeal.”

Lyman v. State, 301 Ga. 312, 318 (2017).

Here, the trial court told the jury that it could not find Owens

guilty of both involuntary manslaughter based on reckless conduct

(a negligence crime) and guilty of aggravated assault and first-

degree child cruelty (intent crimes). But unequivocal, on-point

14 precedent provides that “multiple guilty verdicts for the same

conduct that are based on varying levels of mens rea are not

mutually exclusive.” Springer, 297 Ga. at 382 (emphasis added). We

have explicitly applied that rule to the verdict contemplated in the

jury question—guilty of aggravated assault and guilty of

involuntary manslaughter based on reckless conduct. See id. at 376.

See also note 5, supra. And we have expressly overruled cases,

including the earlier decision in this case, which referenced our

since-rejected mutually-exclusive-mental-states rule. See Booth,

311 Ga. at 376 (“Springer necessarily overruled Owens.”).

Accordingly, the trial court clearly and obviously erred by

instructing the jury that it could not find Owens guilty of

involuntary manslaughter based on reckless conduct as well as

aggravated assault and child cruelty. See Springer, 297 Ga. at 381–

83. See also, e.g., Johnson v. State, 316 Ga. 672, 688 (2023) (clear

and obvious error to instruct jury, contrary to this Court’s precedent,

that affirmative defenses require defendant to admit to acts causing

victim’s death).

15 Contrary to the trial court’s reasoning, the erroneous

instruction was not required by the “law of the case” doctrine. That

rule provides that when an issue is “actually litigated and decided”

in this Court or the Court of Appeals, the resolution of that issue is

binding in all future appellate and trial proceedings in the same

case. State v. Mizell, 288 Ga. 474, 478 (2011). But the law of the case

doctrine applies only to issues expressly decided, not to “implied”

rulings or to dicta. Currid v. DeKalb State Court Prob. Dep’t, 285 Ga.

184, 186 n.5 (2009); Slakman v. State, 280 Ga. 837, 841 (2006). So

identifying the issue an earlier appellate decision actually addressed

is essential to determining how the law of the case doctrine applies—

if at all.

Here, the trial court apparently believed the law of the case

doctrine required it to apply mutual exclusivity caselaw as it stood

when we decided Owens I. But the law of the case doctrine does not

freeze all statutory and decisional law in place at the time of an

earlier appeal; it precludes revisiting discrete issues “actually

litigated and decided” in that earlier appeal, even if the law

16 applicable to that issue has subsequently changed. See Hicks v.

McGee, 289 Ga. 573, 578–79 (2011) (law of the case doctrine “applies

only to actual decisions, not to issues … never ruled upon” or to

“implied” rulings (quotation marks omitted)). And Owens I actually

litigated and decided only one relevant issue: whether the

ambiguous felony murder and involuntary manslaughter verdicts

rendered by Owens’s first jury were mutually exclusive. 6 296 Ga. at

211–12. We answered affirmatively, concluding that the verdict

form did not identify the predicate for involuntary manslaughter,

“creat[ing] a reasonable probability that the jury found [Owens]

guilty of” both felony murder based on an intent crime and

involuntary manslaughter based on a negligence crime and

rendering those verdicts “mutually exclusive.” Id. But we did not

address mutual exclusivity as to any other verdicts, including the

one raised in the jury’s question below. That verdict—guilty of

involuntary manslaughter, aggravated assault, and child cruelty—

6 Owens I also addressed a jurisdictional issue not implicated here. 296

Ga. at 207–08. 17 was not challenged in Owens I and we did not address it. So the trial

court was not required (or authorized) to tell the jury that it could

not find Owens guilty of involuntary manslaughter predicated on

reckless conduct, aggravated assault, and child cruelty. The trial

court clearly and obviously erred when it told the jury otherwise.

(iii) Further, Owens has shown that this error was harmful. To

demonstrate harm under plain error review, a defendant must

establish a “reasonable probability”—one “sufficient to undermine

confidence in the outcome”—that the “result of the proceeding would

have been different” without the challenged error. Merritt v. State,

311 Ga. 875, 885 (2021) (quotation marks omitted).

We agree with Owens: there is a reasonable probability that

the result of her retrial would have been different had the trial court

answered the jury question correctly. The question’s phrasing—“If

we were to find the defendant guilty of counts three and four, is

involuntary manslaughter on counts one and two still an option?”—

suggests the jury was at least contemplating finding Owens guilty

of aggravated assault, first-degree child cruelty, and involuntary

18 manslaughter. But by answering the question in the negative, the

trial court confirmed its repeated misstatements regarding

mutually exclusive mental states and led the jury to believe that

finding Owens guilty of aggravated assault and child cruelty would

require finding her guilty or not guilty of felony murder—nothing

else. And the evidence that Owens caused Jaylen’s death was strong.

So there is a reasonable probability that, when the jury ultimately

found Owens guilty of aggravated assault and child cruelty, the trial

court’s erroneous “all or nothing” explanation of the murder charges

led the jury to find Owens guilty of felony murder rather than

involuntary manslaughter. And that substantially increased

Owens’s sentencing exposure. See OCGA §§ 16-5-1(e)(1) (felony

murder punishable by death, life without parole, or life with parole);

16-5-3(a) (felony involuntary manslaughter punishable by

imprisonment between one and ten years). Given the centrality of

the mens rea issue at trial, the jury’s apparent confusion about it,

the trial court’s improperly ruling out a valid verdict, and the strong

evidence that Owens caused Jaylen’s death, there is a reasonable

19 probability that—but for the trial court’s error—the jury would have

found Owens guilty of involuntary manslaughter rather than felony

murder. So Owens has shown that error was harmful. Cf. Shah, 300

Ga. at 22 (instructional error not harmless when omitting

instruction deprived jury of ability to find defendant guilty of lesser

crimes).

The State disagrees, citing Booth as support for its argument

that the trial court’s error here was harmless. But Booth does not

help the State. There, the trial court rejected as mutually exclusive

the jury’s initial verdict finding the defendant guilty of both

negligence and intent crimes and instructed the jury that it could

not return guilty verdicts for both negligence and intent crimes. 311

Ga. at 374–75. We held that the error was harmless because the jury

found the defendant guilty of the offense with the longest sentence

(felony murder) both before and after the erroneous vacatur. Id. at

377. Here, the jury had not returned a verdict when the trial court

answered the jury question erroneously. And that answer foreclosed

a guilty verdict on a lesser crime that the jury’s note suggested it

20 was considering. So while the jury in Booth found the defendant

guilty of felony murder both before and after the perceived mutual

exclusivity error, this jury may have found Owens guilty of felony

murder only after the trial court’s intervening, incorrect instruction.

Owens has thus shown harm from the trial court’s clear and obvious

instructional error. Cf. id. (mutual exclusivity error harmless “given

that the jury found [the defendant] guilty of the greater offenses on

both occasions and there is no allegation, much less proof, of any

improper conduct or influence on the jurors while they were in the

jury room in between their deliberations”).

Even though Owens has shown harmful error as to the felony

murder count, she has not shown a reasonable probability that the

verdict on the child cruelty count would have been different without

the instructional error. Nothing about the answer to the jury

question—informing the jury that it could not find Owens guilty of

involuntary manslaughter and the predicate felonies—confused the

proper standard for conviction on the predicate felonies or otherwise

misstated the jury’s options on those counts. To illustrate, had the

21 jury acquitted Owens of felony murder but found her guilty of

aggravated assault and child cruelty, the trial court’s error would

not matter. Finding Owens guilty of the predicate felonies but not

guilty of all homicide charges would simply mean the trial court’s

error prevented the jury from rendering a “harsher” verdict (guilty

of the predicate counts and involuntary manslaughter) than the one

it rendered. Owens would be no worse off than if the trial court had

answered the third jury question correctly. And the record does not

suggest that the trial court’s removing a potential verdict on the

murder counts encouraged the jury to find Owens guilty rather than

not guilty of child cruelty. Nor does the record suggest any jury

confusion about what the State was required to show to support a

guilty verdict on that count. In short, the trial court’s error neither

took a more “lenient” verdict for child cruelty off the table nor

precluded or discouraged acquittal on that count. And the record

does not suggest the trial court’s error regarding the homicide

counts otherwise influenced the jury’s verdict on the child cruelty

count. So Owens has not shown harm as to her child cruelty

22 conviction.7

In a supplemental brief, Owens resists this conclusion, arguing

that the trial court’s error requires both of her convictions to be

reversed.8 She cites Schmitt v. State, 318 Ga. 835 (2024), and McIver

v. State, 314 Ga. 109 (2022), as “examples of charging errors that

caused reversal of predicate felonies even without a specific nexus

to those charges.” But neither helps Owens because, in both cases,

7 The dissent questions the weight we have given to possible interpretations of the jury question. But our analysis does not require reading tea leaves based on the jury question’s wording. Given the strong evidence that Owens caused Jaylen’s death, there is a reasonable probability that removing a lesser-included offense on the homicide counts nudged the jury toward finding Owens guilty of felony murder rather than not guilty of all homicide charges. We need not divine the jurors’ thoughts (nor do we pretend to do so) to recognize that the trial court’s mistaken instruction created a reasonable possibility that the jury found Owens guilty of a more serious homicide offense than it otherwise would have. But nothing about that error can be said to confuse the proper legal requirements for a guilty verdict on the predicate counts. The jury question created an opportunity for the trial court’s error; it did not control the scope of that error. Accordingly, there is not a reasonable probability that removing a lesser-included offense on the homicide counts nudged the jury in any direction whatsoever regarding the predicate offenses. 8 Owens did not argue in her opening brief that this instructional error

affected her child cruelty conviction, instead focusing solely on the felony murder conviction. And while Owens initially conceded at oral argument that the instructional error implicated only her felony murder convictions, she filed a supplemental brief to change her answer. She is not entitled to have this argument considered, see, e.g., Bostic v. State, 32 Ga. 688, 694 (2025), but we will address it anyway. 23 the trial court’s instructional error deprived the defendant of a

plausible defense theory that would have enabled the jury to find

him not guilty of both felony murder and the applicable predicate

crime. Schmitt, 318 Ga. at 846–47 (trial court erroneously prevented

defendant from raising accident defense, which would have been a

defense to felony murder and predicate aggravated assault); McIver,

314 Ga. at 142 (trial court erroneously prevented defendant from

raising unlawful manner involuntary manslaughter as lesser-

included offense, which would have allowed jury to find him guilty

only of a negligence crime, not guilty of felony murder and predicate

aggravated assault). We reversed convictions for felony murder and

the predicate offenses in those cases because, had the correct

instruction been given, the jury in each case could have (and possibly

would have) acquitted the defendant of both charges.

Here, however, the erroneous answer to the jury question

prevented the jury only from finding Owens guilty of involuntary

manslaughter, aggravated assault, and child cruelty. That verdict

would have been the result of lenity or compromise, not a logically

24 consistent defense theory that Owens wanted to present but could

not. The harm in Schmitt and McIver—being wrongly prevented

from raising a defense to a higher charge that would have meant

acquittal of a lesser charge—is absent here. Owens has not shown a

reasonable probability that, had the trial court not misstated the

law, the jury would have acquitted Owens of child cruelty. 9

9 The dissent expresses concern about this conclusion and suggests we

ought to reverse both of Owens’s convictions. But here, as in other contexts, the “remedy” ought to be “commensurate with the mischief.” Price v. Bradford, 5 Ga. 364, 371 (1848). If an error affects only some guilty verdicts, the remedy should address only those verdicts. See, e.g., United States v. Irons, 31 F4th 702, 711–15 (9th Cir. 2022) (reversing predicate conviction based on plainly erroneous jury instruction and affirming related but unaffected compound conviction). Owens has at most shown that acquittal on the child cruelty count but for the trial court’s error is “conceivable”; she has not shown that the likelihood of acquittal is “substantial.” Hill v. State, 291 Ga. 160, 164 (2012) (quotation marks omitted); Floyd v. State, 321 Ga. 717, 728 (2025) (noting that plain error harm analysis equates to ineffective assistance of counsel prejudice analysis). There is no reason—logical, legal, or otherwise—why she should get a windfall by demonstrating harm only as to some part of the verdict below. See State v. Williams, 308 Ga. 228, 232 n.8 (2020) (“When plain error analysis is applied on appeal, the appellant has to make an affirmative showing that the error probably did affect the outcome below.” (quotation marks omitted)). We do not see it as an obstacle that this Court has not yet distinguished the effects of a plainly erroneous jury instruction on some of a defendant’s convictions but not others. Absence of perfectly analogous cases doesn’t mean we must reverse both of Owens’s convictions now. Plus, multiple federal appellate courts have reversed only some of a defendant’s convictions based on a plainly erroneous jury instruction that affects only some of those convictions—even when the counts are arguably “intertwined” or when the jury “posed a question about those charges,” dissent

25 (iv) Owens has also satisfied the final prong of plain error

review—that the clear and obvious legal error “seriously affected the

fairness, integrity, or public reputation of judicial proceedings.”

Dees, 322 Ga. at 501. This analysis is “case-specific and fact-

intensive,” White v. State, 305 Ga. 111, 125 (2019) (Bethel, J.,

concurring specially) (quoting Puckett v. United States, 556 US 129,

142 (2009)), and considers whether allowing the error to stand would

result in a “miscarriage of justice,” id. (quoting United States v.

Olano, 507 US 725, 736 (1993)). In the jury instruction context, we

at 5,6. So while the outcome of this case is uncommon, it is not unprecedented. See, e.g., Irons, 31 F4th at 711–15 (affirming defendant’s predicate drug distribution and possession convictions but reversing, based on plainly erroneous answer to jury question, conviction for compound charge of possessing a firearm in furtherance of those drug crimes); Piette, 45 F4th at 1162–64 & n.5 (reversing defendant’s kidnapping conviction based on plainly erroneous burden-of-proof instruction for statute of limitations defense to that count, while affirming defendant’s conviction for traveling with intent to have sexual relations with a minor—against the same victim—when defendant first claimed in oral argument that instructional error on one count required reversal of both counts); United States v. Simpson, 845 F3d 1039, 1060–63 (10th Cir. 2017) (concluding trial court plainly erred in instructing jury on constructive possession, and court reversed some drug and firearm possession charges but affirmed others because “the outcome on [one count] likely would have stayed the same with a legally correct instruction”); United States v. Stansfield, 101 F3d 909, 919–22 (3d Cir. 1996) (reversing defendant’s witness tampering conviction based on plainly erroneous jury instruction, which increased defendant’s sentencing exposure, but affirming related charges unaffected by instructional error). 26 often conclude that plainly erroneous instructions on central issues

warrant reversal because their “expected result is not [jury]

enlightenment, but [jury] confusion.” Cheddersingh, 290 Ga. at 682,

686. For example, erroneously omitting a required accomplice

corroboration charge or misconstruing the presumption of innocence

undermines a trial’s fairness because the jury “was never instructed

how to properly” carry out its deliberations. Doyle v. State, 307 Ga.

609, 614–15 (2020). Likewise, erroneously precluding a verdict that

is “linguistic[ally] and psychological[ly]” “contradictory” but legally

compatible, see Springer, 297 Ga. at 380 (cleaned up)—as the trial

court did here—seriously affected the fairness of Owens’s retrial. It

misdirected the jury’s deliberations and foreclosed a permissible,

more lenient verdict. So Owens has satisfied each prong of plain

error review, and we reverse her felony murder conviction.

3. Further, the State may retry Owens for felony murder

because the evidence was constitutionally sufficient to support

guilty verdicts on those counts. Evidence is constitutionally

sufficient to sustain a conviction if, when viewed “in the light most

27 favorable to the verdicts,” “any rational trier of fact could have found

the defendant guilty beyond a reasonable doubt” of the charged

crime. Foster v. State, 322 Ga. 425, 429 (2025) (quotation marks

omitted). It is for the jury to resolve “[c]onflicts or inconsistencies in

the evidence, credibility of witnesses, and reasonable inferences to

be derived from the facts.” Id. (quotation marks omitted). So to

secure a conviction for felony murder predicated on first-degree child

cruelty, the State had to prove beyond a reasonable doubt that

Owens “maliciously caused a child under the age of 18 cruel or

excessive physical or mental pain, and that, in the commission of

that felony act, [she] caused the [victim’s] death.” Id. (cleaned up).

Similarly, securing a conviction for felony murder based on

aggravated assault required the State to prove beyond a reasonable

doubt that Owens caused the victim’s death while “attempting to

commit a violent injury to the person of another with a deadly

weapon.” Whisnant v. State, 322 Ga. 253, 258 (2025) (cleaned up).

As noted above, Jaylen demonstrated no signs of injury on the

morning of his death. Within a few hours of being placed in Owens’s

28 care, he had died of blunt force trauma severe enough to nearly sever

his spine. All of the expert witnesses to address Jaylen’s injuries,

include Owens’s own expert, agreed that Jaylen’s cause of death was

homicide by blunt force trauma, that said trauma was inflicted

intentionally, and that it would normally render a young child

unable to walk or possibly unable to move. So a jury could

reasonably conclude that Owens must have inflicted that trauma

and disbelieved her self-serving testimony that she did not—

especially when Owens admitted to “patting” Jayden while he was

in her care and repeatedly expressed concern over whether she “hit

him too hard.” See Foster, 322 Ga. at 429–30.

We thus have no trouble concluding the evidence was

constitutionally sufficient to sustain Owens’s convictions. It

authorized the jury to conclude that Owens—by nearly severing

Jaylen’s back—maliciously inflicted excessive physical or mental

pain against eleven-month-old Jaylen and find her guilty of first-

degree child cruelty. It was also sufficient to conclude that, in

committing that child cruelty, Owens caused Jaylen’s death. See id.

29 at 429 (rejecting sufficiency argument when victim “had no serious

injuries on the morning of” death, suffered a “severe beating” after

being “alone with [defendant] for a few hours,” and died soon after).

The evidence was also sufficient for the jury to conclude that Owens

attempted to commit a violent injury to Jaylen’s person with some

deadly weapon. And it was sufficient for the jury to conclude that, in

committing that aggravated assault, Owens caused Jaylen’s death.

See, e.g., Williams v. State, 299 Ga. 447, 448–49 (2016) (rejecting

sufficiency argument when defendant was last person to care for

infant victim, defendant admitted to shaking the infant—allegedly

to dislodge mucous, and victim sustained “violent acceleration-

deceleration” which caused numerous acute injuries and “led to her

death”); Hinkson v. State, 310 Ga. 388, 389–91 (2020) (evidence

sufficient to sustain conviction for felony murder based on

aggravated assault when defendant was last person to care for eight-

month-old victim, admitted to picking up and putting down victim

“too hard,” and medical examiner testified that victim died from

“abusive head injury”). Owens may be retried for felony murder.

30 4. Finally, we explain how reversing Owens’s felony murder

conviction affects the other counts of which she was found guilty.

The jury found Owens guilty of two counts of felony murder, one

count of aggravated assault, and one count of first-degree child

cruelty. The trial court sentenced Owens on the first felony murder

count (based on aggravated assault) and on the child cruelty count;

the second felony murder count was vacated by operation of law, and

the aggravated assault count merged into the first felony murder

count. Because we reverse Owens’s felony murder conviction, the

guilty verdict on the second felony murder count is no longer vacated

by operation of law and is reversed for the same reason as the first

felony murder count. See Allaben v. State, 299 Ga. 253, 257 n.6

(2016) (noting that vacated felony murder count no longer vacated

after malice murder conviction reversed, reversing felony murder

count for same reason as malice murder count). Likewise, the guilty

verdict for aggravated assault unmerges and is unaffected by the

trial court’s instructional error for the same reason as the child

cruelty verdict. See Brundage v. State, 320 Ga. 721, 731–32 (2025)

31 (“By reversing the felony murder conviction in which the felon-in-

possession count merged, that predicate felony count no longer

stands merged.”).

But we vacate Owens’s child cruelty sentence. The trial court’s

instructional error provides no basis for reversing that conviction,

but sentencing (or not sentencing) on that count will be contingent

on what happens on remand. For example, if the State chooses to

retry Owens on the felony murder counts and the jury again returns

guilty verdicts, the trial court would have the discretion to decide

upon which felony murder verdict to enter a conviction and sentence

and which verdict would be vacated by operation of law. That

decision might impact any merger and sentencing analysis on the

remaining counts. See Hinton v. State, 304 Ga. 605, 608 (2018)

(“[W]here a defendant is found guilty on multiple counts of felony

murder against the same victim, the decision as to which of the

felony murder verdicts should be deemed vacated—a decision that

may affect which other verdicts merge and thus what other

sentences may be imposed—is left to the discretion of the trial

32 court.”). But if the State chooses, for example, to nolle prosse the

felony murder counts, the trial court could immediately sentence

Owens on one or both predicate felony counts (depending on the

resolution of any potential merger issues), and Owens would be

entitled to directly appeal the conviction or convictions. See

Brundage, 320 Ga. at 732. In either scenario, the ultimate

disposition of the child cruelty count depends on possible

dispositions of the felony murder counts, and potentially the trial

court’s analysis and discretion on remand. If we affirmed Owens’s

sentence on the child cruelty count now, we might constrain that

discretion. See, e.g., Scott v. State, 306 Ga. 507, 509 (2019) (citing

constitutional and statutory limits on punishment following guilty

verdicts or pleas to multiple criminal charges). So we vacate Owens’s

sentence for child cruelty and leave it to the trial court to determine

the proper outcome pending resolution of the felony murder counts.

Any alleged errors with any counts on which Owens is sentenced

33 may be raised in a subsequent appeal.10 See Welbon v. State, 304 Ga.

729, 730 n.2 (2018) (“A criminal defendant in a second, post-remand

appeal may raise issues relating to a new trial court order on

remand, or may raise issues — such as the ineffective assistance

claim in this case — that were raised but not decided in the first

appeal.” (cleaned up)).

In sum, Owens’s conviction for felony murder premised on

aggravated assault is reversed. The guilty verdict for felony murder

based on child cruelty is no longer vacated as a matter of law and

stands reversed. Owens may be retried on both felony murder

counts. With the reversal of the felony murder conviction, the guilty

verdict for the underlying aggravated assault unmerges, and the

trial court must determine whether to impose a sentence on that

count, depending on further proceedings. The child cruelty sentence

10 With respect to this appeal, Owens’s remaining enumerations are thus

moot or unlikely to re-occur. See Wilson v. State, 322 Ga. 76, 77 n.1 (2025) (following reversal of conviction on one enumeration, Court will not address remaining enumerations that are moot or concern issues unlikely to re-occur upon retrial). And to the extent Owens raises claims regarding her aggravated assault verdict, she was not sentenced on that count, and those claims are currently moot. See Welch v. State, 306 Ga. 470, 473 n.5 (2019). 34 is vacated and the trial court may enter a sentence (or not) following

further proceedings. And if convictions are later entered on the

aggravated assault and child cruelty verdicts, we leave it to the trial

court to consider in the first instance any challenges to convictions

entered on those counts, which could be raised in a subsequent

appeal.11

Admittedly, this case is a bit of a mess. And that’s largely our

11 Contrary to the dissent’s suggestion, there is authority supporting this

result. In Brundage, for example, we resolved an appeal similarly. There, the defendant was convicted of felony murder (based on firearm possession by a convicted felon) and possession of a firearm during the commission of a felony. Brundage, 320 Ga. at 721. We reversed both convictions based on ineffective assistance of counsel, which caused the defendant’s felon-in-possession conviction to unmerge. Id. But sufficient evidence supported the reversed convictions, so we remanded for retrial. Id. And we left any challenges to the felon-in-possession count for a later appeal, if a conviction was entered on that count. Id. Similarly, we affirmed a conviction for concealing the death of another, which the defendant did not challenge on appeal. Id. And we “remand[ed] for the trial court to enter a sentence on the felon-in-possession count, as necessary depending on the disposition of the felony murder count … on any retrial. And we leave any challenges to any conviction entered on the felon-in-possession count for any future motion for new trial or appeal[.]” Id. at 732. There is nothing improper about recognizing the contingencies on remand or saving certain issues for a subsequent appeal, if any. And Stansfield, one of the plain-error-jury-instruction cases cited above, supra n.9, is a good example of a court reversing one of the defendant’s convictions, affirming the rest, and vacating the defendant’s sentences to be resolved consistent with proceedings on remand. 101 F3d at 922. We see nothing objectionable with that approach here. 35 fault because of Owens I. So we do not lightly reverse Owens’s felony

murder conviction for a second time. Still, we have no trouble

concluding the trial court plainly erred when it answered the jury

question. But the harm from that error extended only to Owens’s

felony murder conviction, so Owens isn’t entitled to a full retrial.

Nor is there any need to answer merits, sentencing, or merger

questions regarding Owens’s child cruelty conviction that may never

be asked. Last time, we used a sledgehammer and did so incorrectly.

We now attempt a more precise approach.

Judgment reversed in part and vacated in part, and case remanded. All the Justices concur, except Warren, P.J., and McMillian and Colvin, JJ., who dissent in part.

36 MCMILLIAN, Justice, concurring in part and dissenting in part.

I concur fully in nearly all of the majority opinion. I agree that

under plain error review, Owens did not affirmatively waive her

objection to the trial court’s erroneous answer to the jury’s question,

that the trial court’s answer constitutes clear or obvious error, that

the error affected Owens’s substantial rights because it “affected the

outcome of the trial court proceedings,” and that the error “seriously

affect[ed] the fairness, integrity or public reputation of judicial

proceedings.” State v. Kelly, 290 Ga. 29, 33 (2011). Where I depart

from the majority opinion is its analysis of how the error affected the

outcome of the trial court proceedings and what that means for any

retrial.

As concluded by the majority opinion: “Given the centrality of

the mens rea issue at trial, the jury’s apparent confusion about, the

trial court’s improperly ruling out a valid verdict, and the strong

evidence that Owens caused Jaylen’s death, there is a reasonable

probability that—but for the trial court’s error—the jury would have

found Owens guilty of involuntary manslaughter rather than felony

37 murder.” That is all that is required to meet that prong of the plain

error analysis – a determination that the outcome of the proceedings

would have been different. But then the majority opinion goes on to

analyze whether the verdict of the child cruelty count would have

been different without the instructional error. I have not found any

case, and the majority opinion cites none, where we have applied the

plain-error standard to require a count-by-count analysis of whether

the result on that count would have been different. Instead, as

explained in Kelly, the seminal case from our Court adopting the

federal plain error standard to unobjected-to jury instruction errors,

the question is whether “the error must have affected the appellant’s

substantial rights, which in the ordinary case means [she] must

demonstrate that it affected the outcome of the trial court

proceedings.” Kelly, 290 Ga. at 33.

This is consistent with the purpose of the plain error rule –

permitting appellate review of “plain error which affects substantial

rights of the parties” even though the error “was not brought to the

court’s attention” at trial, which would have given the trial court an

38 opportunity to correct it at that time. OCGA § 17-8-58(b) (providing

for plain error review for unobjected-to jury instruction error). See

also Puckett v. United States, 556 US 129, 135 (2009) (explaining

that plain error review is a “limited exception” to the

contemporaneous objection rule). In other words, an appellate court

should only overlook the failure to timely object at trial if the court

determines that there is a serious question about the outcome of the

proceeding due to the error. As we have often said, “[a]n appellant

must establish all four elements of the test in order to demonstrate

plain error, so satisfying this test is difficult, as it should be.” Clark

v. State, 315 Ga. 423, 440 (2023).

Here, the majority opinion has determined that Owens has met

this high standard, so the next question is what should be the

remedy. A review of those cases in which this Court has reversed

criminal convictions based on plain error in instructing the jury

shows that this Court has not grappled with this issue but has

instead reversed on all counts, likely because in those cases it was

relatively clear that the instructional error affected multiple counts.

39 See, e.g., Pindling v. State, 311 Ga. 232, 237 (2021) (plain error in

failing to instruct the jury on accomplice corroboration); Doyle v.

State, 307 Ga. 609, 615 (2020) (same); Stanbury v. State, 299 Ga.

125, 131 (2016) (same); Cheddersingh v. State, 290 Ga. 680, 686

(2012) (plain error when preprinted verdict form required any

finding of not guilty on each count be made beyond a reasonable

doubt).12

12 Although the majority opinion correctly notes that appellate courts

commonly partially reverse convictions, none of the cited cases involved the proposed remedy here, i.e., holding onto a verdict from the first trial until after a retrial. See United States v. Irons, 31 F4th 702 (9th Cir. 2022) (affirming convictions for conspiracy to distribute fentanyl and possession of fentanyl with intent to distribute but reversing conviction for possession of a firearm in furtherance of drug trafficking where district court erroneously instructed the jury that it need only find that defendant possessed the gun in “connection” with rather than “in furtherance of” drug trafficking); United States v. Piette, 45 F4th 1142 (10th Cir. 2022) (reversing kidnapping conviction where district court plainly erred by misallocating burden of proof on defendant’s statute of limitation defense but affirming his conviction for traveling with intent to engage in sexual relations with a juvenile because that charge fell within the applicable statute of limitation); United States v. Simpson, 845 F3d 1039 (10th Cir. 2017) (where district court erred in charging the jury as to “constructive possession,” affirming conviction for possession with intent to distribute cocaine (as the jury necessarily found intent) and convictions for firearm possessions where the evidence was uncontroverted that defendant held a loaded shotgun before trying to sell it but reversing remaining convictions for unlawful possession of handguns and ammunition where the evidence showed that the handguns and ammunition were found in locations jointly occupied by defendant and his wife and that visitors had access to); United States v.

40 In this case, it is clear that the trial court’s instructional error

involved the aggravated assault, child cruelty, and involuntary

manslaughter charges because the jury posed a question about these

charges and the trial court’s answer referred to these charges. Yet

the majority opinion has reasoned that because the jury likely would

have found Owens guilty anyway of child cruelty and aggravated

assault without the instructional error, those verdicts stand. In

contrast, even though the instructional error did not directly involve

the felony murder counts, the majority has determined that there is

a reasonable likelihood that the jury would have found Owens guilty

of involuntary manslaughter rather than felony murder.

There is a tension in those conclusions. Because the aggravated

assault and child cruelty counts were the predicate offenses for the

two felony murder counts and the involuntary manslaughter options

were lesser offenses to the felony murder counts, the evidence for all

Stansfield, 101 F3d 909 (3d Cir. 1996) (affirming all convictions related to mail fraud and money laundering but reversing conviction for witness tampering where the district court omitted an essential element of that offense in charging the jury). 41 of those offenses was necessarily intertwined, so it is difficult for me

to see how an appellate court can determine that the jury would

have convicted on certain charges but not others, but for the

instructional error.

Moreover, it is troublesome that the majority opinion only

reaches these conclusions by parsing the phrasing of the jury’s

question and trying to determine what the jury was thinking. That

analysis assumes that the jury was thinking as lawyers do when

asking the question and receiving the trial court’s answer. However,

courts have long recognized that a jury may render seemingly

irrational, inconsistent verdicts “through mistake, compromise, or

lenity.” United States v. Powell, 469 US 57, 64 (1984). We do not

know whether the jury’s question was raised by one, two, or all of

the jurors, nor can we know what any one of the jurors was

considering on the involuntary manslaughter, child cruelty, or

aggravated assault counts and whether the erroneous instruction

affected that consideration.

Because of the intertwined nature of these counts and the

42 conclusion that plain error affected the outcome of the trial, I believe

that a reversal is required on all of the counts, which is consistent

with how this Court has dealt with reversals even though the error

related to mutually exclusive verdicts did not affect all of the counts.

See State v. Owens, 296 Ga. 205, 212 (2014) (Owens I) (reversing and

remanding on all counts, including child cruelty and aggravated

assault, even though only the verdicts on felony murder and felony

involuntary manslaughter were set aside); Flores v. State, 277 Ga.

780, 785 n.4 (2004) (because verdicts of guilty for felony murder and

involuntary manslaughter were mutually exclusive, new trial

granted on all counts related to the specific victim); Jackson v. State,

276 Ga. 408, 413 (2003) (judgment reversed and new trial required

on all counts because felony murder and involuntary manslaughter

convictions were mutually exclusive).

Finally, I would like to note some other considerations that

counsel for reversal on all counts. It is not clear to me under what

authority this Court can “leave undisturbed” certain verdicts from

one trial but vacate the sentence on that count and then order that

43 the trial court enter judgment and sentences following a second trial

on other counts. 13 I am not persuaded by the majority opinion’s

reliance on Brundage v. State, 320 Ga. 721 (2025) (reversing

convictions for felony murder and possession of a firearm during the

commission of a felony based on ineffective assistance of counsel for

failing to object to the prosecutor’s incorrect explanation of self-

defense and concluding that the count of possession of a firearm by

a convicted felon unmerged following the reversal of the felony

murder conviction). First, in permitting the felon-in-possession

conviction to stand, we specifically concluded that “the evidence that

Brundage possessed a gun after the time of necessity is

uncontradicted by any other evidence.” Id. at 728. We cannot

conclude the same in this case. Moreover, we cited no authority for

remanding for the trial court to enter a sentence on the unmerged

count, as necessary, depending on the disposition of the felony

13 Similarly, the majority opinion suggests that after the retrial, the trial

court can determine merger issues for the child cruelty and aggravated assault counts that went to verdict in the previous trial. However, it is not clear to me how a trial court should resolve potential merger issues if the evidence presented is different between the trials. 44 murder count on any retrial. See id. at 732.

And, even under the majority opinion’s holding, if the State

elects to retry on felony murder and involuntary manslaughter, the

State will still have to present evidence on the child cruelty and

aggravated assault counts in order to meet its burden on the felony

murder counts, so it seems that the majority’s procedure is unduly

cumbersome while not promoting any efficiency in the presentation

of the evidence. To the extent that this Court has any discretion in

how to order a retrial, this factor counsels in favor of a reversal on

all counts.

For these reasons, I would reverse the counts affected by the

jury’s question – child cruelty, aggravated assault, and involuntary

manslaughter – as well as the two counts of felony murder, one

predicated on child cruelty and the other on aggravated assault, so

that on remand the State can elect whether to retry some or all of

these charges. I respectfully dissent from those portions of the

majority opinion that hold otherwise but otherwise concur fully in

the majority opinion.

45 I am authorized to state that Presiding Justice Warren and

Justice Colvin join in this opinion.