Owens v. State - Supreme Court Reverses Murder Convictions

In th e Supr eme C ourt o f Georg ia Decided: February 1 7, 2026 S25A122 9. OWENS v. THE STATE. B ETHEL, Jus tice. In 2013, a jury found M aria Owens guilt y of fe lony murder, involunta ry ma nslaughte r, and oth er crimes in co nnectio n with the death of elev en - month - old Jaylen Kell y. We reverse d Owens’s convic tions, apply ing our since - over rul ed preced ent prov iding t hat gui lty v erdicts f or c rimes with diff eren t mental stat es are mutua lly exclus ive when based on one crim in al act agai nst on e victi m. See State v. Owens, 296 G a. 2 05, 211 – 12 (20 14) (“ Owens I ”). We abroga ted that pre ceden t th e following year, concl u ding that guilt y verdic ts f or negl ig ence and inte nt cri mes ar e not catego rical ly mutu ally exclu siv e be cause pro of of a m ore culpa ble m ental st ate does no t nega te pro of of a l ess cul pable m ent al sta te. See Springer v. State, 297 G a. 376, 380 – 81 (2015). No nethele ss, th e trial cou rt in NOTICE: T his opini on is subje ct to mo dificat ion res ultin g from motion s for re consi derat ion unde r Supre me C ourt Rule 27, the Court ’s recons ideratio n, and edit orial rev isions by t he Report er of Decisi ons. The ver sion of the opinion publis hed in the Advance Sheets fo r the Geor gia Report s, desig nated as th e “Final Co py,” will replace a ny prior version on the Court’s websi te and docket. A bound volu me of the Georgi a Reports will con tain the final a nd officia l text of t he opinio n.

2 Owens’s 2020 r etri al instructe d the jury that it co uld not find Owens guilty o f bot h involunta ry ma nslaughte r (re quiring cr iminal negl igen ce, as c harg ed) an d agg rava ted as sau lt an d firs t - degree child c ruelt y (requiring crimina l inte nt). The jury aga in found Owen s gui lty of fel ony mu rder an d s everal oth er cr im es. 1 Owens now appeals her convic tions, arguing, a mong other things, that t he trial cour t ’s in str ucti on was erron eou s. We agr ee that th e cha rge was err oneou s an d harmf ul as to Owens’ s hom icide charge s, beca use we reje cted th e mu tual ly - exclusi ve - mental - states rule yea rs befor e Owens’ s retr ial, so we reverse Owens’ s felo ny murde r convict ion. But Owens may be retri ed for fel ony mu rder beca use the evide nce was cons titutiona lly suffic ient to sup port the 1 The crim e s occurred on Jun e 1, 2011. After this case was remanded in Owens I, Owens wa s retried in Januar y 2020 on tw o counts of felon y murder, one count of aggrav ated ass ault, and one count of cruelty to c hildren in the first degree. The jury found Ow ens guilty on all counts. Th e trial court then sentenced Owens to serve life in prison on the first felony murder cou nt and twenty years concurrent on the chi ld cruelty count. The remaining counts merged or were vac ated by operation of law. Owens filed a timely mo tion f or new trial, which was amended s everal times begin ning in 2023. The trial c ourt denied the motion o n April 23, 2025. Ow ens filed a timel y notice of appeal, an d the case was docketed to this Court’s August 2025 term an d orally argued on October 23, 2 025.

3 guilty verd icts on t hose co unts. We leav e un dist urbed Ow ens’s convi ction f or chi ld cruel ty becau se th e err one ous cha rge did n ot impac t that co nvictio n, but we v ac ate th e sen tence on th at con victi on becaus e the sentencing dispo sition of that count will depe nd on the ultimat e resolu tion of Owens’s fel ony m urder ch ar ges. 1. (a) We recited th e eviden ce fro m Owens’s first tr ial in deta il in Owens I. Id. at 205 – 07. 2 I n short, th at ev iden ce s how ed th at on the mor ning of Jaylen’ s death, his parents lef t him in Owe ns’s c are on thei r way to w ork. Id. at 20 5–0 6. Jaylen wa s in good hea lth that morning, and his par ents test ified that he wa s acting nor mally, includin g walki ng and playing wi th his sib lings. Id. at 206. Owens contact ed Jayl en’s moth er later t hat mo rning, telling her t hat Jaylen was h avin g troubl e b reathi ng. Id. at 206. Owens t hen ca lled 911, an d emerg ency person nel respon ded, transp orted him to a hospit al, and ultim ately life - f lighted Ja ylen to an Atla nta c hildren’s hospit al. Id. Doc t ors cou ld n ot sta bil ize Jayl en, w ho was in cardi ac 2 We addressed the sufficiency of the evidence supporti ng Owens’ s convictions in Owe ns I, so we laid out that evidence in detail and viewed it in the light most favor able to the ver dicts. 296 Ga. at 2 07.

4 arrest upon arri val, and he died shortl y aft er. Id. Poli ce arr ested Ow ens th e foll owi ng day. Id. During a pre - arrest inte rrogati on, Owens tol d p olice th at Jay len w as conges ted, that she had lif ted him by one arm and “p atted” or “hit” him o n his side t o mak e h im cou gh, an d th at Jayl en sc ream ed when she di d so. Id. at 206 – 07. She also told poli ce that Jayl en w as acting no rmall y befor e that. Id. at 207. At trial, th e m edical exami ne r testifi ed that Jay len ’s caus e of deat h was blunt - force t rauma to th e tors o and t hat his manner of deat h was homicide. Id. The t rauma, which was caused by a “very hard blow,” caus ed fa tal i nte rnal bl eedi ng fr om a fra cture i n J aylen ’s back and wou ld h ave ren der ed hi m un able to wal k. I d. Owens’s own medical exp ert la rgel y agr eed, but he opin ed th at t he fr actu re had occurr ed sev eral days befor e Ja ylen ’s d eath. I d. He could not, howev er, exp lain how Jay len w oul d have been abl e to wa lk or otherwi se n ot ex hi bit any feeling s of pain. Id. at 207 n.6. The jur y ultimate ly acquitte d Owens of malic e murder bu t found her guilty o f felony murder, felony involunt ary ma nslaught er,

5 aggrav ated as sau lt, an d fir st - de gree child c ruelty. Id. at 2 05 n. 1. The trial cou rt sen te nced O wens to serve ten y ears i n pri son on t he involunta ry ma nslaughte r charg e and pu rpor ted t o m erge th e oth e r count s into the malic e murde r count. The St ate appeal ed, arg uin g that th e tri al cou rt s enten ced Ow en s in correct ly. Id. at 205 – 06. We agreed w ith the Stat e but u lti matel y revers ed Owens’s involunta ry mansla ughter convict ion because t he fel ony m urd er an d in volu ntary mansl augh ter v erdi cts could have ref lected a finding that O wens acte d with bot h criminal int ent and c riminal ne glige nce during a single c riminal ac t, which would render t hose verd icts “ mut ually exclus ive. ” Id. at 208 – 10 (quo ting Jackson v. State, 276 Ga. 408, 410 (200 3)). An ambiguit y in the ver dict f orm “cre ated a reason able poss ibility t hat the jur y found [Owens] guilt y of felony involunt ary mansl augh ter bas ed on reckl ess c ondu ct” — mutually exclusiv e of the guilt y verdict s on h er felon y m urder counts. Id. So we vacate d all of Owens’s convict ions a nd remand ed for a new tria l. Id. at 212. (b) The foll owi ng ye ar, w e a broga ted Owens I. In Springe r v. State, we he ld that “ multip le guilty ve rdicts for the same co nduct

6 that a re bas ed o n vary ing level s of men s rea ar e not mu tual ly exclus ive. ” 29 7 Ga. at 38 2. We re asone d that, when one cr ime is a lesser - include d offe nse of a nother crime, a nd t he only d istinct ion between th em is the level of mental c ulpabilit y, proof of a m ore culpabl e m ental s tat e does not n egate proo f of a less cul pable m enta l state. I d. at 381. So gui lty v erdi cts for both a c rim e requi rin g crimina l intent and its le sser - include d of fense re quiring c riminal neglige nce a re not mutua lly exc lusive. Id. at 381 – 82. Accordingly, w e overru led J ackson v. State, the sour ce of the mutually - exclus ive - mental - stat es rul e, and oth er ca ses rel yin g on i t. Id. at 383 & n.4. (c) Owens w as r etried in 2020. The eviden ce pres ented at the secon d tri al larg ely mirro red th e ev idence from th e first. As at Owens’s fir st tr ial, 3 both parties p res ented extensi ve evidenc e and testim ony ab out t he sou rce of J aylen’s injuries, and Owens’s mental culpa bility was a central issue. Owen s again a cknow l edged that she 3 Because we are n ow evaluating whe ther a clear error affected the outcome of Owens’ s retrial, we revie w the record de n ovo and weigh the evidence as we expe ct a reasonable jury would have. See S mith v. State, 313 Ga. 584, 588 (2022).

7 “ patted ” Jaylen o n th e back on the d ay of h is d eath, bu t she asser ted that h er c ondu ct at mos t ex acer bat ed a preexist ing injury caused by someon e els e. The Stat e in turn emph asiz ed testi m ony th at Jayl en’s spin al injur ies would ha ve made it imposs ible to walk and were s o catast roph ic th at they coul d have resul ted on ly fr om intentiona l conduct inflicted while Jaylen wa s in Owens’ s ca re. T he jury ultimat ely f ound Owens guilty on all c ounts, but it left the v erdi ct form bl ank a s t o the l ess er - included involunta ry mansla ughter charge und er eac h fel ony m urde r c ount. 2. On appeal, Owen s first argu es th at the tri al cou rt’s res pons e to a jury quest ion — informing the jur y that it could no t find Ow ens guilty o f involu ntary manslaughte r if it f ound her guilt y of aggrav ated as sa ult and chi ld cr uel ty — was i ncor rect becaus e we overru led Owens I and other cas es con cerni ng our former mutua lly - exclus ive - mental - s tates ru le well bef ore Owens’ s ret rial. We ag ree. (a) The reco rd ref lects that, dur in g the initial j ury cha rge, the tria l court twice addres sed the relat ionship b etwee n criminal int ent and c riminal ne gligence. The c ourt instr ucted t he jury tha t it co uld

8 not f ind Owens guilty of both fe lony murde r and involunta ry mansl augh ter be cause the forme r w as pred icat ed o n an inten t cri me and th e latter on a n egli gence cri m e and the t wo m ental stat es wer e mutually exclusi ve. The tria l court also in stru cted t he j ury that if it found Owens gui lty of involunta ry mansla ughter, it could not also find he r guilty o f fir st - degree ch il d cruelty an d aggrava ted ass ault. Owen s did n ot ob ject t o any par t of the ju ry ch arg e. The j ury posed s everal qu esti ons t o th e tri al cou rt du ring deliber ation s. R elevan t he re, on e q uesti on ask ed: “ If w e were t o fin d the d efendant guilty of [ag grav ated assau lt an d fi rst - d egree ch il d cruelty ], is involunt ary m anslaught er on co unts one and two st ill an opt ion? ” Wit hout consult ing the p arties, the tria l court res ponded: [N]o, b ecau se … they w ould be in consi stent v erdi cts, becaus e cou nts t hree and fou r re quire crimi nal inten t, and … th e less er of fens e of on e an d two, i nvol unt ary mansla ughter, with the und erlying m isdeme anor b eing reckl ess con duct, requi res -- is a crime of neglige nce, and you ca n’t have neglig ence a nd intent. Owens’s trial counsel imm ediat ely res ponded, “ Your honor, if we could ch eck that o ne sec ond.” Wi tho ut ackn owledg in g that c ommen t, the trial cou rt sta ted t o the ju ry, “Y ou have to h ave o ne or th e oth er.

9 You c an’t have intent p lus neglig ence. The law says t hat t hey are mutually exclusi ve.” After t he j ury ret urned to t he j ury room, the tri al c ourt as ked the pa rties if they had a nything to add. Owens’s trial co unsel said, “I’ d jus t like to double - check t hat. I have a c ase th at ou r appe als secti on sen t that I’ m goin g t o read real qu ick. ” Owens’s trial counsel point ed to Sprin ger fo r the propos ition t hat guilty verdict s for aggrav ated as sau lt and reck le ss co ndu ct are n ot mu tu ally exclu siv e. But the trial court was unper suaded, stating tha t Owens I was “the exact fact s of this case” a nd co ntrolled on the mutual exclusivit y issue. The tri al cou rt late r reas one d that, p urs uant t o the “l aw o f the case” d octri ne, i t was const rained to in struct the j ury on mu tual ly excl usive verdic ts cons istent wit h Owens I. (b) The part ies disput e which standard of revi ew appli es here. Owen s argues th at her t rial cou nsel p rese rved t he i ssue f or ap pea l with a con tempo ran eous obje ction to the trial cou rt’ s answ er to th e jury qu est ion. T he S tate argu es t hat Owens’s claim is subjec t only to plai n er ror r evi ew be cause her t rial cou nsel f aile d to o bject to t he

10 trial cour t’s an sw er be fore the j ury retu rned to d elib erate. We n eed not r esolve this disput e becaus e, for the r eason s ex plain ed below, her first en umer ati on su cceeds und er eith er stand ard of review. 4 So we apply the more stringent pl ain er ror rev iew: Owe ns must show that the tri al co urt m ade a leg al err or that was not affi rmati vely waived, was “clear an d obv ious, ” li kel y affected the ou tcom e of th e tria l, and “serious ly affec ted th e fairnes s, in tegrity, or publ ic 4 The State cite s OCGA § 17 -8- 58(b), which pro vides that “[f]ailure to object … to any po rtion of the [jury] charge … before the jury ret ires to deliberate … pr eclude[s] a ppellate revi ew of such port ion of the jury charge” unless that charge constitute s plain error. The State a rgues that Owens failed to preserve her objec tion to the answer to the jury question b ecause she did not object until after the jury returned t o the jury room. We n ote, however, that the trial court answered the jury’s que stion without conferring with the parties or giving them ti me to object a nd immediately excused the jury to return to deliberations befor e askin g the parties for their input on the resp onse. Given that un usual procedure (for which th e court later apologized, O wens’ s trial counsel arguably co uld have done nothi ng more to preserve this issue. On the other hand, towar d the end of trial the trial court a sked the parti es whether the jury could find Owens guilty of the predicate felonies if it found her guilty of involuntary m anslaughter — essentially the answer the trial court la ter gave in response to the jury questi on, just s tated in the inverse. Owens’s attorney answered affirmatively. And she did not object when the trial court reite rated that misstatement of law. Nor di d she object w hen the trial co urt again reiterated that mis statemen t to the jury during the initial charge. So Owens arguabl y waited until the last possib le moment to object to that misst atement, apparently because she learned of our r uling in Springer only after the jury left to deliberate. R egardless, we n eed not resolve the preservation questi on here.

11 reput ation of j udi cial pro ceedi ngs.” Dee s v. State, 322 Ga. 49 8, 500 – 01 (20 25). See also, e.g., Ham pton v. S tate, 302 G a. 166, 1 67 – 68 (2017) (appl yin g plain error review under OCGA § 17 -8- 58 (b) to forfei ted argum ent ab out t rial court’s ans wer t o ju ry qu estion). (i) Owen s has s how n th at the tria l cou rt’s an swe r to th e ju ry questi on wa s leg al er ror and was n ot affirma tiv ely w aived. We vie w jury i nstru ction s, i ncl udin g a rech arge giv en in resp onse to a ju ry ques tion, as a whol e to dete rmin e wh ether they acc urately stat e th e law. See, e.g., St ep p - Mc Common s v. S tate, 309 Ga. 4 00, 4 05 – 06 (202 0); Guaja rdo v. St ate, 290 Ga. 17 2, 175 – 76 (20 11). And a trial court’s f ailure to stat e the law acc urately in charging t he jury ca n be legal erro r. See, e.g., Stanbury v. State, 299 G a. 1 25, 129 – 31 (201 6). Here, t h e tri al co urt a nswered the jury ’s q uestion by info rming the jury t hat, if it found Owens guilty of aggr avated assa ult and child cruelty (i ntent cri mes), it could not als o find her guilt y of involunt ary mansl augh ter ba sed on reck less con duct (a negl ige nce c rime). That was c onsiste nt with the t rial co urt’s ea rlier inst ructions, including multiple st atements that t he j ury could not con vict O wen s of

12 neglige nce a nd intent crime s and a state ment that, if the jury found Owens guilt y of involunt ary mans laughte r rat her than felon y murder, it could not als o find her guilty of th e pred icate feloni es — aggrav ated as sa ult and chi ld cr uel ty. The t rial c ourt invaria bly convey ed to t he jury that guilt y verdicts f or negligenc e crimes and intent crime s a re mutua lly exclus ive and prohi bited the ju ry from ret urning guilty verdict s on both neglig ence a nd inte nt crime s. But “c o nvictio ns for bot h an offense req uiring cr iminal intent and an offen se r equ iri ng a l esser m ens re a, bas ed on the s ame act agains t the same victim, are not mut ually exc lusive.” Booth v. State, 311 G a. 374, 376 (2021). As we held ye ars bef ore Owens’ s retrial, p r oof of a m ore culpab le m ental sta te necess ary for convi ction of a gre ater offen se does no t negat e proof of a less cu lpab le mental state nec essary for convi cti on of a less er - included offense. Spri nger, 297 Ga. at 3 80 – 82. So a defend ant c an, f or ex ample, be found guil ty of aggrav ated as sau lt (an int ent cr ime) and its lesser - include d offe nse of re ckles s con duct (a negli gence cri me, an d a predi cate f or inv ol untary mansl aug hter). Id. Proo f of c riminal intent

13 requir ed for aggr avat ed ass ault s ubsum es rath er th an neg ates p roof of crimina l negl igen ce requ ired for reck less con duct or for inv olun tary man slau ghter bas ed o n reck less con duc t. Id. at 382 – 83. That me ans the jur y here could have fo und Ow en s guilty o f inv olun tary man slau ghter b as ed on re ckl ess con du ct, aggrav ate d assa ult, a nd child cr uelty — t he verdict it raised as a po ssibilit y i n it s questi on t o the trial court, and n ea rly th e exact verd ict w e appr oved in Spr inger. 5 T he trial cou rt rep eat edly told th e ju ry oth erwi se, a nd t hat was err or. See, e.g., Stanbury, 2 99 Ga. at 129 – 31. Moreov er, the par ties do not ar gue that Owens af firmat ively waive d this error. The S tate argu es that, at most, Ow ens forfeit ed the is sue by fai li ng to ti mely objec t to the trial cour t’s an swer t o the jury q uestio n. Th e “fai lure t o obje ct i s mor e appr opri ately d escri bed as a fo rfei ture,” Che dders ingh v. State, 290 G a. 680, 6 84 (2 012), so 5 Springer did not involve a ch ild cruelty charge, but reckless conduc t can be a lesser - included offense t o first - degree child cruelty, see Shah v. State, 300 Ga. 14, 19 (2 016), just as it can be a lesse r - included offense to ag gravated assault, se e Springer, 297 Ga. at 377. The inclusion of a child cruelty count does not make our precedent any less clear: the tri al court should ha ve answered the jury’s question affirm atively. See id.

14 Owens ha s sati sfied th e fi rst p rong of p lain erro r rev iew. (ii) Owens ha s also shown that the trial court ’s err or was clea r and obvi ous. A de fendant challe nging a jury ins truct ion on p lain error rev iew can not merel y de mons trate that t he trial cou rt commi tted “ actu al l egal er ror”; she must sho w that the challe nged instr uction ha d “ an obvi ous d efec t rath er th an a merely argu abl e defect.” Hill v. S tate, 321 G a. 1 77, 18 1 – 82 (202 5) (qu otation mark s omitted). Genera lly, a def ect i s o bvi ous w hen there is “on - point control li ng au thori ty or the u nequi vocal ly clear wo rds o f a statut e or rule t hat plainly es tablish t hat the tr ial court erre d[.]” De es, 322 Ga. at 500 (quotati on marks omi tted). And “ wheth er an e rror i s consi dered ‘ clear or obvi ous ’ under th e se cond p ron g of the p lain error test is j udged unde r the law ex isting at the ti me of appeal.” Lyman v. State, 301 Ga. 312, 31 8 (2017). Here, t he trial cour t told t he jury that it could not find Owens guilty o f both invol un tary man slau ghter bas ed on re ckl ess condu c t (a negli gence cri me) and gu ilt y of agg rava ted as saul t and fi rst - degree chi ld c ruel ty (inten t cri mes). But unequivoc al, on - point

15 preced ent pr ovides that “m ultiple g uilty verdic ts for the same conduct th at a re based on vary ing level s of m e ns r ea a re not mutu ally exclus ive. ” Springe r, 297 Ga. at 382 (emph asi s added). We have e xplicit ly applie d that rule to the verdict contempla ted in the jury qu estion — guilty of a ggravat ed ass ault and guilt y of inv olun tary mans laug hter bas ed on reckless conduc t. See id. at 3 76. See also not e 5, supra. And w e have expressl y overru led cases, includin g the ear lier dec ision in this case, whic h refe renc ed o u r since - rejecte d mutually - e xclusive - mental - stat es rule. See Booth, 311 Ga. a t 376 (“ Springe r neces sarily overru led Owens. ”). Accor dingly, the tri al cou rt cl earl y an d obvi ousl y er red by instr ucting the jury tha t it could no t find Owe ns guilty o f involunta ry ma nslaughte r b ased on reck less c ond uct as w ell as aggrav ated as sau lt and chil d cruel ty. See Spring er, 297 Ga. at 38 1– 83. See also, e.g., Johns on v. Sta te, 316 Ga. 672, 6 88 (202 3) (clear and o bviou s er ror to instruct jury, contra ry to this C ou rt’s p rece dent, that affi rmativ e defens es requ ire d efend ant to admi t to act s causing victi m’s de ath).

16 Contra ry t o the t rial cou rt’s reas oni ng, th e erron eou s ins truction was n ot requ ired by the “ law of the case ” doct rine. Tha t rule provide s that w hen an issue is “ac tually litiga ted and decided” in this Co urt or the Cour t of App eals, t he resolut ion of that is sue is binding in a ll futur e app ellat e an d trial proc eedings in t he same case. St ate v. Mize ll, 288 Ga. 474, 4 78 (20 11). B ut th e law of the case doctri ne ap plies onl y to i ssues ex pressly de cided, n ot to “i mpli ed” rulings o r to dicta. Currid v. De Kalb S tate C ourt Pro b. De p’t, 285 G a. 184, 1 86 n. 5 (200 9); Sl akman v. S tate, 280 Ga. 837, 841 (2006). So ident ifying t he issue an earl ier appell ate de cisi on act ual ly add resse d is esse ntial to de termining ho w the l aw of the case doctri ne appl ies — if a t all. Here, t h e tri al c ourt app aren tly believ ed the law of the cas e doctri ne required it t o appl y mutual exclusivit y casel aw as it sto od when we deci ded Owens I. But th e law of the c ase do ctrin e do es not free ze all s tatutory a nd decisio nal law in pla ce at the tim e of a n earlie r appeal; it prec ludes revis iting disc rete issue s “act ually litigat ed a nd decided ” in that e arlier appeal, even if the law

17 app licable t o that issue has sub sequent ly changed. Se e Hi cks v. McGee, 289 Ga. 57 3, 57 8–7 9 (2011) (law of the cas e d octrin e “app lies only to actua l decisions, not to issue s … nev er ruled up on” or t o “implie d” ruling s (quot ation mark s omi tted)). And Owen s I act ually litigat ed a nd decided o nly one rel ev ant is sue: wheth er th e ambig uous f elon y mu rder an d in volu ntary m ansl augh ter verdi cts rende red by Owen s’s f irst j ury were mut ually exc lusive. 6 296 Ga. at 211 – 12. W e ans wered aff irm ativ ely, conclu din g that th e v erdic t for m did not ident ify the pr edicate for involunt ary mans laughte r, “crea t[ing ] a rea sonabl e pro babil ity that the j ury foun d [Owen s] guilty o f” both fel ony mu rder based on an i nten t crim e and inv olun tary man slau ghter bas e d on a neg lig ence c rime and rend ering thos e ve rdicts “mutually exclusiv e.” Id. But we did not add ress mut ual exclusivit y as t o any ot her v erdi cts, includ ing the one raised in the ju ry’s qu esti on b elow. That ver dict — guilt y of involunta ry m anslaug hter, aggra vated as sau lt, an d ch ild cru elty — 6 Owens I also addressed a juris dictional issue not impli cated here. 29 6 Ga. at 207 – 08.

18 was not challe nged in Owens I a nd we did not ad dres s it. So the t rial court w as n ot r equ ired (or au thor ized) to tell th e j ury that it cou ld not f ind Owens guilty of invol untary m ans laug hter p redi cated on reckl ess con duc t, ag grav ated ass aul t, and ch il d cr uelty. The tria l court clearly and ob viously e rred when it t old the jury otherwis e. (iii) Further, Owens has show n that this er ror w as harmful. To demons trat e harm u nder pl ain error r evi ew, a d efend ant mu st establ ish a “r eason able pr obabi li ty” — one “suff icient t o undermine confid ence in the ou tcome” — that the “re sult of the proc eeding would have b een di ffe rent ” without t he challenge d error. Merritt v. State, 311 Ga. 875, 885 (20 21) (quot ation marks omitt ed). W e agr ee with O wens: there is a rea sona ble p roba bili ty th at the re sult of h er retrial wou ld hav e be en dif feren t h ad th e t rial c ourt answer ed the j ur y questi on correctly. The quest ion’s phr asing — “ If we wer e to find the d efend ant g u ilty of cou nts thr ee and f our, is involunta ry ma nslaughte r on co unts one and t wo still an o ption? ” — sugg ests the ju ry w as at least co ntemp lating finding Owens guilt y of aggr avated assau lt, f irs t - degree ch ild cruelty, and involunt ary

19 mansla ughter. B ut b y a nswering the questio n in the nega tive, t he trial cou rt con fi rmed its rep eate d miss tatem ents rega rdin g mutually exclusi ve me ntal sta tes and led the ju ry to b eli eve tha t finding Owens guil ty of ag grava ted assau lt an d chi ld cruel ty would requir e f inding her guilty o r not guilty of fe lony mur der — not hing else. And th e evi den ce th at Owen s cau sed J ayl en’s d eath wa s st rong. So the re is a reasonab le probabilit y that, when t he jury ultima tely found Owen s gui lty of agg rava ted as saul t and ch ild cru elty, th e trial court’s erroneous “all or not hing” expla nation of the murd er c harges led t he jury to find Owens guilt y of felo ny murder rat her than involunta ry ma nslaughte r. And that substa ntially i ncreas ed Owens’s senten ci ng exp osure. See OCGA §§ 16 -5- 1(e)(1) (fel ony murder pu ni shab le by de ath, l ife w ith out par ole, or l ife wi th par ole); 16 -5-3 (a) (felo ny involunta ry mans laughte r punishab le by impri sonm ent be tween on e and te n y ears). Giv en the c entr ali ty of the me ns rea issue at trial, the ju ry’s ap pa rent c onfu sion abou t it, the trial cour t ’s impr oper ly ruling out a va lid verdict, and the stro ng evide nce that Owe ns caus ed Jayl en’s d eath, ther e is a reason abl e

20 prob ability tha t — but fo r the t rial court ’s er ror — th e ju ry wou ld h ave found Owens guilt y of involunt ary mansla ughter rath er than felon y murder. So Owens has sho wn tha t error was harm ful. Cf. Shah, 300 Ga. at 22 (instruc tional e rror not ha rmles s when omitt ing instr uction deprived jury of ab ility to find defend ant guilt y of le sser crimes). The St ate di sagr ees, citing Booth as supp ort f or its argu men t that th e tri al cou rt’s err or here was h armles s. But Booth does not help t he State. There, the trial co urt reje cted as m utual ly ex clu sive the jur y’s initia l verd ict finding t he defend ant guilty of both neglige nce a nd intent crimes a nd instruc ted the jury tha t it could not ret urn g uilty ve rdicts for bot h negligenc e and int ent cr imes. 31 1 Ga. at 374 – 75. W e he ld that the error was harml ess bec ause the jur y found the defendant guilty of the offens e w ith the longest se ntence (felony murd er) both bef ore and a fter the e rron eous vacat ur. Id. at 377. Here, the ju ry h ad not return ed a v erdi ct wh en the tri al cou rt answer ed th e ju ry qu estion er rone ousl y. And tha t answer forecl osed a guilty verdict on a l esser crime that the j ury ’s note suggested it

21 was co nsider ing. So while the j ury in Booth f o und the def endan t guilty of felony mu rder both bef ore an d aft er th e perceiv ed mutual exclu sivi ty err or, this jury ma y hav e found Owe ns guilty o f fe lony murder only afte r the tri al court ’s i nterv enin g, i ncor rect in structi on. Owens ha s thus sh own h arm from the t rial cour t’s cl ear and obvi ous instr uctiona l error. Cf. id. (mutual e xclusivity err or harmles s “ given that the jury found [the defen dant] guil ty o f th e gr eater off enses on both oc cas ions an d ther e is no alleg ation, much le ss p roof, of any imprope r condu ct or influe nce on the jurors while the y were in the jury ro om i n bet ween their deli berati ons ”). Even thoug h Ow ens h as sh own harm ful erro r as to th e f elon y murder cou nt, she has no t show n a reas onabl e pro babil ity th at th e verd ict on the child cruelt y count wou ld have be en di fferen t without the in structi on al er ror. Nothing about the answer t o the ju ry questi on — informing the jury that it co uld not find Owens g uilty of involunta ry ma nslaughte r and th e predic ate fel oni es — c onfu sed th e proper s tand ard f or con victi on on th e predi cate f eloni es or oth erw ise misstate d th e jury’s options on t hose count s. To illust rate, ha d the

22 jury ac qui tted O wen s of felon y murder but found her guilt y of aggrav ated as sa ult and chi ld cru elty, t h e tri al co urt’s erro r wou ld not matte r. Finding Owe ns g uilty of the pre dica te fel onies b ut not guilty o f all hom icide charge s would simp ly mean the trial cou rt’s error p reven ted t he ju ry from renderin g a “h arsh er” ve rdic t (guilty of the p redi cate c ounts and involu ntar y mansla ughter) t han t he one it ren dered. Owe ns w ould b e no wors e off th an i f th e tri al cou rt h ad answer ed the t hi rd jury ques tion corre ctly. And the reco rd does n ot sugges t that the trial court’ s rem ovin g a poten ti al v erdict on the murder coun ts en courag ed th e jury to fi nd Ow ens g ui lty rather th an not guilt y of c hild cr uelty. Nor does the r ecor d su ggest any j ur y conf usion about what the State was re quired to s how to su ppor t a guilty ve rdict on that count. In s hort, t he tri al cour t’s erro r neithe r took a more “ lenie nt ” verdict f or child cruelt y off the ta ble nor precl uded or di scou raged acqu itt al on that count. And the rec ord does not su gges t the tri al c ourt’ s er ror reg ardi ng the homicide count s other wise influe nced the ju ry’s verdict on the child cruelty count. So Owens ha s not shown ha rm as to her c hild cruelty

23 convic tion. 7 In a sup pleme ntal brie f, Owe ns resists this co nclusion, a rguing that th e tri al co urt’s erro r re quires both of h er c onvi ctions to b e revers ed. 8 S he cites Schmi tt v. State, 31 8 Ga. 835 (2 024), a nd McIv er v. State, 31 4 Ga. 109 (20 22), as “exam ples of char gi ng err ors th at caused reve rsal of pr edic ate f elon ies ev en w ithou t a s pecif ic n exus to those ch arges. ” Bu t nei ther h elps Owen s becau se, i n bo th ca ses, 7 The dissent questions the weight we have given to possible interpretations of the jury questio n. But our analysi s does not require reading tea leaves based on t he jury question’s w ording. Given the st rong evidence that Owens caused Jayle n’s death, there is a reasona ble probability that removin g a lesser - included offense on the ho micide counts nudged the jury toward finding Owens guilt y of felony murder rather than not guilty of all homi cide charges. We need not divine the juro rs’ thoughts (nor do w e pretend to do so) to recognize that th e trial court’s mistaken instruction created a reason able possibility that the j ury found Owen s guilty of a more seriou s homicide offense than it otherwise would have. But nothing about that er ror can be said to confuse the proper legal require ments for a guilty verdi ct on the pre dicate counts. The jury q uestion cr eated an op portunity for the t rial court’s erro r; it did not control the scope of that error. Accordingly, t here is not a reason able probability that removing a less er - included offens e on the homicide counts nudged the jury in a ny direction wh atsoever regarding t he predicate offense s. 8 Owens did not argue in her opening brief that this instru ctional error affected her child cruelty c onviction, instead focusing sol ely on the felony murder conviction. And while Owens initially c onceded at o ral argument that the instructional error implicated on ly her felo ny murder convictions, sh e filed a supplemental bri ef to change h er answer. She is n ot entitled to have this argument considere d, see, e.g., Bostic v. State, 32 Ga. 688, 694 (2025), but we will address it anyw ay.

24 the trial cou rt’s i nstru ction al err or dep rived the def endan t of a plausib le def ense theor y that would ha ve enab led the jur y to find him not g uilty of bot h felony murd er and the app licab le predica te crime. Schmit t, 3 18 Ga. at 8 46 – 4 7 (trial c ourt err oneousl y p revent ed defen dant f rom r aisi ng acci dent defen se, whi ch wo ul d have be en a defen se to felon y mu rder and predi cat e aggrav ate d assaul t); McIver, 314 Ga. at 142 (tri al court erron eou sly p reven ted defen dan t fr om rais ing unlawful manner involunt ary m anslaught e r as lesser - include d offe nse, which would have a llowed jur y to find him gui lty only of a n egli gen ce cri me, n ot g uil ty of felon y mu rder and p redi cate aggrav ated assau lt). We reve rsed conv iction s f or fel on y mu rder an d the p redi cate of fens es i n thos e cas es be cau se, h ad the co rrec t instr uction bee n given, the jury in each case co uld have (and possib ly woul d have) acqu itted the d efen dan t of both ch arge s. Here, h owev er, the e rron eous ans wer to the j ury ques tion preven ted the ju ry only from f inding Owens guilty of inv oluntar y mansl augh ter, a ggrav ated assau lt, and ch il d cruel ty. T hat v erdict woul d have be en th e resu lt of l enity or comp romi se, n ot a log ical ly

25 consi stent def ense th eo ry tha t Ow ens w ant ed to presen t bu t c ould not. The harm in Sc hmitt and McIver — bei ng w rongl y prev ente d from rai sin g a defen se to a hig her charg e th at wou ld h ave mean t acquitt al of a less er ch arge — i s abs ent he re. Owens has no t shown a reason able p roba bil ity th at, had t he trial cou rt not miss tated the law, t he jury would have ac quitte d Owens of child cruelt y. 9 9 The dissent expres ses concern about this conclusi on and suggests we ought to reverse bo th of Owens’s convi ctions. But here, as in other contexts, the “remedy” ought to be “commensur ate with the mischief.” Price v. Bradford, 5 Ga. 364, 37 1 (184 8). If an error affect s only some guilty v erdicts, the remedy should address only those verdicts. See, e.g., United States v. Irons, 31 F4th 702, 711 – 15 (9th Ci r. 2022) (reversing predicate conviction based o n plainly erroneous jury instruction an d affirmi ng related but una ffected compound conviction). Owens has at most shown that acquit tal on the child cruelty count but for the trial court’s err or is “conceivable”; she has n ot shown that th e likelihood of acqui ttal is “substantial.” Hill v. State, 29 1 Ga. 160, 1 64 (2012) (quotation marks omitted); Floyd v. Sta te, 321 Ga. 717, 728 (2025) (noting that plain error harm analysis equates to in effective assis tance of counse l prejudice analysis). There is no reason — logical, legal, or ot herwise —w hy she should get a windfall by demo nstrating harm only as to some part of the verdict b elow. See State v. Williams, 308 Ga. 22 8, 232 n.8 (2020) (“When p lain error analysis is applied on appea l, the appellant has to make an affirm ative showing that the error probably d id affect the outcom e below.” (quot ation marks omitted)). We do not see it as an obstacle that this Court has not yet distinguis h ed the effects of a plai nly erroneous jury instruction on some of a defendant’s convictions b ut not others. A bse nce of perfectly analo g ous case s d oesn’t mean we must reverse bot h of Owens’s con victions now. Plus, multiple federal appellate courts have reversed only some of a defendant’s convicti ons based on a plainly err oneous jury instruc tion that affects only some o f those convictions — even when the counts are ar guably “intertwined” or wh en the jury “pos ed a question about those charges,” diss ent

26 (iv) Owens ha s also sat isfie d t he final prong of plain error review — that the clea r an d obvi ous legal err or “s erio usl y affect ed t he fair ness, inte grity, or pub lic reputa tion of judic ial pro ceedings. ” Dees, 322 Ga. at 501. This analysis is “case - sp ecifi c and fa ct - intens ive,” White v. State, 305 G a. 111, 1 25 (2 019) (B eth el, J., conc urring spec ially) (q uoting Puc kett v. Uni ted States, 556 US 129, 142 (2009)), and con sid ers wh ethe r allowing the error to s tand would res ult in a “m iscarria ge of jus tice,” id. (quo ting Unite d State s v. Olano, 50 7 US 725, 736 (199 3)). In the jury inst ructio n context, we at 5,6. So while the outcome of this c ase is uncommon, it is not unprecedente d. See, e.g., Irons, 3 1 F4th at 711 – 15 (affirming defendant’s pred icate drug distribution and p ossession convic tions but reversi ng, based on pla inly erroneous answer to jury quest ion, conviction for compound charge of possessing a firear m in furtherance of those drug crimes); Piette, 45 F4th at 1162 – 64 & n.5 (reversing de fendant’s ki dnapping conviction based on plain ly erroneous burden-of - proof instruction fo r statute of limitatio ns defense to that count, while affir ming defend ant’s conviction for tra veling with intent t o have sexual relations with a minor — against the same victim — w hen defendan t first claimed in oral argument that instr uctional error on one count req uired reversal of both counts); Uni ted State s v. Simpson, 845 F3d 1039, 10 60 – 63 (10th Cir. 2017) (concluding trial court plainly erred in i nstructing jury on constructive possess ion, and c ourt reversed so me drug and firearm poss ession charges but affirm ed other s because “th e outcome o n [one count] li kely would have stayed the sa me with a leg ally correct instructio n”); United States v. Stansfield, 101 F3d 909, 9 19 – 22 (3d Cir. 1996) (reversing d efendant’s witn ess tampering convicti on based on plainl y erroneous jury instruction, which increased defendan t’s sentencin g exposure, b ut affirming related charges unaffected by instru ctional error).

27 often conclu de th at plainly e rroneous instruct ions on cent ral issue s warran t rev ersa l becau se th eir “exp ected resu lt is not [ju ry] enlighte nment, but [jury] co nfusion.” Chedder singh, 290 Ga. at 682, 686. For ex ampl e, erron eous ly omitting a requi red accom pli ce corrob orati on ch arge or misco nstruing t he pre sumption o f innoc ence underm in es a tri al’s fairn ess becau se t he j ury “ was never in stru cted how to pr operl y” carry ou t its d eli berati ons. Doyle v. State, 307 Ga. 609, 6 14 – 15 (2020). Like wise, e rroneo usly prec luding a ve rdict tha t is “ ling uistic [ally ] and psy chol ogic al [ly ]” “ cont radic tory ” but lega lly compati ble, see Spri nger, 297 Ga. at 380 (cleaned u p) — as the t rial court did here — seri ousl y affe cted the fai rn ess of Owens’s retrial. It misd irected the jury’s del ibe ratio ns and forec losed a perm issible, more le nient verdict. So Owens has sati sfied each pr ong of plai n error r evi ew, and w e rever se her fe lony murder conv icti on. 3. Fur ther, t he State may retry Ow ens fo r fel on y murd er becaus e the ev idence was co nstitutiona lly suf ficient to s uppor t guilty ve rdict s on t hose co unts. Evide nce is c onstit utiona lly suffic ient to sustain a convic tion if, whe n viewed “in the light most

28 favora ble to the v erdic ts,” “any ra tion al trie r of fa ct cou ld h ave foun d the d efend ant g ui lty bey ond a reas onabl e d oubt” of th e charg ed crime. Fost er v. Stat e, 322 Ga. 425, 429 (2 025) (qu otati on ma rks omitted). I t is for the ju ry t o res olve “ [c]on fli cts or incon sis tenci es in the evi den ce, c redi bili ty of wi tnes ses, and reason abl e infe renc es t o be deri ved f rom the fa cts.” I d. (qu otation m arks omi tted). So t o secu r e a convi ctio n for felon y murd er pred icate d on fi rst - degree child cruelty, th e Stat e had t o prov e beyond a reas onabl e doubt th at Owen s “mal iciou sly caused a chi ld u nder the age of 18 c ruel or exce ssive phy sical or mental pain, and that, in the co mmissio n of that f elony act, [sh e] cau sed th e [victi m’s] d eath.” I d. (cl eane d up). Similar ly, secur ing a co nviction f or fel ony murde r bas ed o n aggrav ated assau lt requi red the State to prov e bey on d a r eason able doub t that Owens caused the victim’s d eath while “atte mpting to comm it a viole nt injury to the person o f anothe r with a dea dly weapon. ” Whisnant v. Sta te, 322 G a. 253, 258 (202 5) (cl ean ed up). As not ed abov e, Jay len d emonst rated n o sig ns of i nju ry on th e morning of his deat h. Within a fe w hours of being p laced in Owe ns’s

29 care, h e had died of bl un t force trau ma sev er e enoug h t o nearl y sev er his spine. All of the ex pert wit nesses to addres s Jaylen’ s injurie s, incl ude O wens’s own exper t, ag reed that J ayl en’s caus e of d eath was homi cide by blu nt force trau ma, that said trau ma was inflicte d intent ionally, and tha t it would nor mally re nder a young c hild unabl e to wal k or po ssi bly u nable to m ove. So a jury coul d reason ably con clu de th at O wens mu st have in fli cted that traum a and di sbel ieved her sel f - serving t estimo ny that she did n ot — espec ially whe n Owens ad mitted to “patting” Jayden while he was in h er care and r epeat edly ex pres sed concern ov er w heth er she “hit him too ha rd.” Se e Fost er, 322 Ga. at 42 9 – 30. We th us hav e n o troubl e con c ludi ng the evi dence was cons titutio nally suf ficient to sust ain Owens ’s convic tions. It authori zed the j ury to c oncl ude that Ow ens — by nearly severi ng Jaylen ’s back — mal iciou sly infli cted ex cessi ve ph ys ical or m ental pain a gainst eleven - month - o ld Jaylen and find her guilty o f firs t - degre e child cr uelty. I t was also s ufficie nt to conc lude tha t, in comm itting that child cr uelty, Owens ca used Jaylen’ s deat h. See id.

30 at 42 9 (rej ecti ng su ffici ency argu men t when victi m “had n o s eriou s inj uries on the m ornin g of” d eath, su ffered a “s ever e beati ng” a fter being “alone wi th [de fend ant] for a few hou rs,” and died soon aft er). The evid ence wa s also suff icient for t he jury to co nclude that Owens attemp ted t o com mit a viol ent in jury to J aylen ’s per son w ith some deadly w eap on. A nd it was su ffici en t for the ju ry t o con clu de th at, i n commi tting that aggrav ated assau l t, Owen s caus ed Jay len ’s de ath. See, e.g., William s v. State, 29 9 G a. 447, 44 8 – 49 (2016) (rejec tin g suffi ciency argu ment when defen dant w as last p erson to ca re fo r infant victim, defenda nt admitt ed to sha king the inf ant — a llegedly to dislo dge mucous, and victim s ustaine d “violent acc eleratio n - dece leratio n” which cause d numerous acute injuries and “led to her death”); Hinkson v. State, 3 10 Ga. 388, 389 – 9 1 (2020) (ev id ence suffi cient t o sustai n conv icti on for felon y mu rder bas ed on aggrav ated as sau lt when defend ant was last p erson to car e for ei ght - month - old vic tim, admitt ed to picking up and put ting down vic tim “too ha rd,” an d medi cal exami ne r testifi ed th at vi ctim died fr om “ab usive hea d injury”). Owen s m ay be retri ed f or fel ony murd er.

31 4. Finally, we e xplain how reversin g Owens’ s felo ny murder convi ction aff ects th e othe r counts of which she was fo und guilty. The jur y found Owe ns guil ty of two c oun ts of fel on y mu rder, on e count o f agg rava ted ass aul t, and one coun t of fi rs t - degre e chi ld cruelty. The trial cou rt sen ten ced O wens on the fi rst fel ony m urde r coun t (based on a ggrav ated ass ault) and on t he child crue lty count; t he secon d fel ony mu rder cou nt wa s vac ated by ope ration of l aw, an d the agg rava ted a ssau lt cou nt m erg ed in to th e firs t fel ony mu rder count. Becau se w e revers e Owens’s felony murde r convi ction, the gui lty v erdict on t he se cond f elony mu rder c ount is n o lon ger v aca ted by oper ation of l aw an d is r ever sed fo r th e sam e reas on as the first felony murde r cou nt. See All aben v. State, 299 Ga. 25 3, 257 n. 6 (2016) (notin g th at vacat ed felon y murder cou nt no lon ger vacat ed after mali ce mu rder con victi on reverse d, reve rsin g fel ony m urd er count f or s ame reason as m alic e m urder c oun t). Likewise, the guilty verdic t fo r aggra vated assau lt u nmerges and is u naffect ed by th e trial c ourt ’s in stru ction al err or f or th e sam e reas on as th e chi ld cruelty verdict. See Brunda ge v. St ate, 320 Ga. 72 1, 731 – 32 (2025)

32 (“ By rever sing the felo ny murder conv iction in w hich the felo n - in - posses sion coun t merge d, that p redi cate f elon y cou nt n o long er stands m erge d.”). But we vacate O wen s’s child cr uelty se ntence. The t rial cour t’s ins truction al er ror p rovides no b asis for rev ersin g t hat conv icti on, but s entencing (or not sentenc ing) on tha t count will b e co ntingent on wh at h appen s on r emand. For ex ampl e, if the Stat e ch ooses to retry O wens on t he fel ony m urd er counts and t he ju ry ag ain r eturn s gui lty v erdicts, th e trial cou rt w ou ld hav e the disc retion to decid e upon w hi ch felon y murder verd ict to en ter a con victi on and s entenc e and whic h verd ict would be vacat ed by oper atio n of l aw. T hat dec ision might impact any merge r and sen ten cing analysi s on the rema ining co unts. See Hint on v. State, 304 Ga. 605, 60 8 (2018) (“[W]here a defend ant is fo und guilty on mult iple count s of felo ny murder again st the same v ic tim, the de cisi on as to wh ich of th e felony murde r ve rdicts s houl d be deem ed vac ated — a dec ision that may aff ect w hich other v erdic ts m er ge and thus wha t ot her senten ces m ay b e impos ed — is left to the d iscretio n of the tr ial

33 court.”). But i f th e Stat e ch ooses, for exam ple, to nolle pros s e t he felony murder co un ts, the trial court could im mediate ly s entence Owens o n one or both p redica te felony co unts (depend ing on the resol ution of any poten tial m erg er i ssues), and Owens wo uld be entit led to direct ly appea l the convict ion or c onvict ions. S ee Brundage, 320 Ga. at 732. I n either scena rio, the ultimat e dispo sition of the child crue lty count dep ends on possi bl e dispos ition s of the fel ony murder cou nts, and potentia lly the tr ial cou rt’s anal ysi s an d discre tion on remand. If we affi rmed Owens’s senten ce on the ch il d cruelty cou n t now, we might co nstrain th at discre tion. See, e.g., Scott v. State, 306 Ga. 507, 509 (20 19) (citing cons titutio nal and stat utory limit s on punishm ent fo llowing guilt y verdic ts or p leas t o mul tipl e crimi nal ch arges). So we va cate Owe ns’s senten ce f or chi ld cru elty a nd leave it to th e trial cou rt to d etermi ne the pr oper outcom e p ending re solution o f t he felony mur der count s. Any alle ged error s with any counts o n which Owens is s entence d

34 may b e r aised in a su bse quent app eal. 10 S ee Wel bon v. St ate, 3 04 Ga. 729, 730 n.2 (20 18) (“ A criminal def endant in a second, post - remand appeal may r aise i ssues r elati ng to a n ew trial cour t orde r on remand, or m ay rai se iss ues — such as the ineff ective assista nce claim in t his ca se — that w ere r aised but no t dec ided in the f irst appeal. ” (cle aned u p)). In sum, Owe ns’s c onvict ion for fel ony murder p rem ised on aggrav ated a ssau lt is rev ersed. T he guilty ver dict for f elony murde r based on chil d cru elty i s no l on ger v acat ed a s a m atter of l aw and stands rev ers ed. Ow ens m ay b e r etried on b oth fel ony m urde r count s. Wi th the revers al of the f elony murd er convictio n, the guilty verdic t for the underlying aggravated assaul t un merges, and the trial cour t mus t det ermin e whet her to i mpos e a s enten ce on that count, depending on furt her proceed ings. T he child c ruelty sen te nce 10 With r espect to this appeal, Owens’s remaining enu merations are thus moot or unlikely to re - occur. See Wilso n v. State, 322 Ga. 76, 7 7 n.1 (20 25) (following reversal of conviction on one enumer ation, Cour t will not addres s remaining enumera tions that are moot or concern issues unlikely to re - occur upon retrial). An d to the extent O wens raises c laims regardi ng her ag gravat ed assault verdict, sh e was n ot sentenced on that count, a nd those claim s are currently moot. See Welch v. State, 306 Ga. 470, 473 n.5 (2019).

35 is vac ated an d th e trial cou rt may enter a s ent ence (or not) fol low ing furthe r proc eedi ng s. And if convicti ons ar e lat er en tered on the aggrav ated assau lt and ch il d cru elty verd icts, we leav e it to the tri al court t o consid er in the fir st instance any chal leng es to convi cti ons entered on th ose cou nts, which could be raise d in a subs equen t appeal. 11 Admitt edly, this case is a bit of a mess. And that’ s largely o ur 11 Contr ary to the dissent’s suggest ion, there is authority supp orting this result. In Brundage, for example, we resolved an appea l similarly. There, t he defendant was conv icted of felony mur der (based on firear m possession by a convicted felon) and possessio n of a firearm during the comm ission of a felony. Brundage, 3 20 Ga. at 721. We reversed both convictions based on ineffect ive assistance of coun sel, which c aused the defend ant’s felon -in-po ssession conviction to unmerge. Id. But suffici ent evidence suppo rted the reversed convictions, so w e remande d for retrial. Id. And we left any challenges to the felon-in- possession c ount for a later appeal, if a convicti on was entered on th at count. Id. Similarl y, we affirmed a c onviction for conc ealing the deat h of another, which the defendant did not challe nge on ap peal. Id. And w e “remand[ed] for the trial court to en ter a sen tence on the f elon -in-possession count, as necessary dependin g on the disposition of the fel ony murder count … on any retrial. And we leav e any challe nges to any convic tion entered on the felon-in- possession c ount for an y future motion for new trial or appeal[.]” Id. at 732. There is nothin g improper abo ut recognizing the co ntingencies on rema nd or saving certain iss ues for a subsequen t appeal, if an y. And Stansfield, one of the pla in -error-ju ry- instruction cases cited above, supra n.9, is a good example of a court reversing one of the defendant’ s convictions, affirmi ng the rest, and vacating the def endant’s sentence s to be resolved consistent with proceedings on remand. 101 F3d at 922. We see nothing objectionabl e with that ap proach here.

36 fault because of Owens I. So w e do not l igh tly revers e Ow ens’ s fel ony murder con victi on for a se cond tim e. Still, we h ave n o t roubl e conc luding the t rial court plainly err ed when it answ ered th e jury questi on. But the harm fr om tha t err or ext ended onl y to Ow ens’ s felo ny murder convictio n, so Owens isn’t e ntitled to a full retrial. Nor is th ere an y n eed to answer merits, senten ci ng, or merger ques tions regardi n g Owen s’s ch ild cruel ty c onvi ction tha t may never be ask ed. La s t tim e, we use d a sl e dgeham mer and did so incor rectly. We now attem p t a more p recis e appro ach. J ud gment reversed in part and v acat ed in pa rt, an d case rema nded. All the Justice s concur, except War ren, P.J., and McMi llian a nd Colvin, JJ., who dissent in part.

37 M C M ILLIAN, Justice, co ncurr ing in part and dissenting in pa rt. I conc ur fully in near ly all of the majo rity op inion. I agree that under p lai n e rro r revi ew, Owen s di d n ot a ffirma ti vely waiv e her objecti on to the tri al cou rt’s erron eou s ans wer t o th e ju ry’s questi on, that th e trial cou rt’s ans wer con sti tutes cl ear or obv iou s error, t hat the erro r affe cted Ow ens’s sub stan tial rights becaus e it “aff ected the outcom e of the trial cou rt pr oceedi n gs,” an d th at th e err or “s eri ousl y affe ct[ed] the fa irness, integrit y or public reput ation of j udicial proceeding s.” Stat e v. Ke lly, 290 Ga. 29, 33 (2011). Where I depar t fro m the majorit y opinion is it s analysis o f how the error affecte d the outcom e of the t rial cou rt p roce edi ngs and wh at tha t means fo r any retrial. As concl ude d by th e majori ty opin ion: “G iven the cen trality of the m ens rea i ssu e at tri al, the ju ry ’s app aren t con fu sion about, the tria l court’s imp roperly r uling out a valid verdict, and the strong eviden ce th at O wen s caus ed Jay len ’s d eath, ther e is a r easonabl e prob ability tha t — but fo r the t rial court ’s er ror — th e ju ry wou ld h ave found Owens guilt y of involunt ary mansla ughter rather than felo ny

38 murder. ” That is all tha t is required to meet that prong of t he plain error an al ysi s – a d etermina tion that the out come of the proce edin gs would ha ve be en differ ent. But then the majo rity opinion go es o n to analy ze wh ethe r the v erdi ct of the chil d cruel ty cou n t woul d hav e been dif feren t wi th out the i nstru cti onal er ror. I have not found any case, and th e maj orit y opi ni on cites non e, wh ere we have appl ied th e plain - error stan dard to r equi re a c oun t - by - count ana lysis of whether the re sult on that count would have been diffe ren t. Ins tead, as expla ined in Ke lly, the semi nal ca se from our Cou rt adop ting the feder al pl ain er ror st anda rd to u no bjecte d - to ju ry i ns tructi on e rrors, the qu estion i s w hether “th e er ror mu st hav e a ffect ed th e ap pel lant’s subst antia l rights, which in t he ordinar y case means [she ] must demo nstrate tha t it a ffec ted th e ou tcom e of t he tri al cou rt proceeding s.” Kell y, 290 Ga. at 33. This is co nsiste nt with t he purpose of the plain error rule – permitti ng appel late rev iew o f “pl ai n err or wh ich af fects subs tanti al righ ts of th e pa rti es” ev en thou gh the e rror “was no t broug ht t o th e court ’s atte ntion” at trial, which would ha ve given the trial c ourt an

39 opportu nit y to co rrect it a t th at ti m e. OCG A § 17 -8- 58(b) (provid ing for p lain err or review f or unobj ected - to jury ins tructio n error). See also Pucke tt v. Unite d States, 556 US 129, 13 5 (20 09) (exp lain in g that pla in error re view is a “limited exceptio n” to the contem poran eou s objecti on ru le). I n other w ords, an app ellat e cou rt shou ld onl y overl ook the f ail ure to timel y objec t at t rial if the cou rt determi nes that th ere i s a se riou s qu estion abou t th e out come of th e proce eding due to the error. As we h ave of ten said, “[a]n ap pellant must es tabl ish al l fou r elemen ts of the tes t in or der to d emon strat e plain e rror, so satisf ying this te st is diff icult, as it should b e.” Clark v. State, 315 G a. 423, 4 40 (2023). Here, th e m ajori ty op ini on has det ermin ed th at O wens h as m et this high st anda rd, so the next que stion is what should be t he remedy. A revi ew of those cases in which thi s Court has revers ed crimina l conv ictions ba sed on plain err or in instruc ting the jur y s hows t hat this Court has not grapp led with thi s issue but has ins tead r eversed on all coun ts, lik ely b ecau se i n th ose case s it was relativ ely cl ear th at the ins truc tion al erro r affe cted m ulti ple coun ts.

40 See, e.g., Pindling v. State, 311 Ga. 232, 23 7 (202 1) (pl ain error in faili ng t o inst ruct th e jury on accom pli ce co rrobor ation); Doyle v. State, 307 G a. 609, 615 (20 20) (same); Stanbury v. State, 299 Ga. 125, 1 31 (20 16) (same); Cheddersi ngh v. Stat e, 2 90 Ga. 680, 68 6 (2012) (pl ain e rro r when prep ri nted v erdi ct f orm requ ired an y find ing of not gui lty on each cou nt be m ade bey on d a reas onabl e doubt). 12 12 Although the majority opinion co rrectly notes that appell ate courts commonly partiall y revers e convictions, none of the cited cases i nvolved t he proposed remedy he re, i.e., holding onto a verdict from t he first trial until a fter a retrial. See United Stat es v. Irons, 3 1 F4th 702 (9th Cir. 202 2) (affirming convictions for conspiracy to distr ibute fentanyl and p ossession of fentanyl with intent to distribute b ut reversing c onviction for posse ssion of a firearm in furtherance of drug traffickin g where district court erro neously instructed the jury that it need only find that defenda nt possessed the gu n in “connection” with rather than “in furth erance of” dr ug trafficking); U nited Sta tes v. Piette, 45 F4th 1142 (10 th Cir. 2022) (reversin g kidnapping con viction where district court plainly erred by mis allocating bu rden of proof on defendant’s sta tute of limitation defense but affirming his c onviction for travel ing with intent to engage in sexual rel ations with a j uvenile because tha t charge fell within t he applicable statute of limitation); Unit ed States v. Simpson, 845 F3d 103 9 (10th Cir. 2017) (where di strict court e rred in chargi ng the jury a s to “constructive possession,” affirmi ng conviction for possessio n with intent to distribute cocaine (as the jury necessari ly found intent) and co nvictions for firearm possessions where the evidence w as uncontrover ted that defendant held a loaded shotgun before trying to sell it b ut reversing remaining convictio ns for unlawful possession of handgu ns and ammuniti on where t he evidence showe d that the handguns and am munition were found in locations j ointly occupied by defendant and his wife and that vi sitors had access to); United States v.

41 In th is c ase, i t is cl ear t hat th e tri al court ’s in st ructi onal error involve d the aggra vated ass ault, child cruelty, and involunta ry mansl augh ter ch arges becaus e th e ju ry posed a ques tion about th ese charge s and th e tri al cour t’s answer refer red to thes e c harg es. Y et the maj ority opin ion h as reas oned t hat bec ause th e j ury l ikel y woul d have f oun d Owe ns g uil ty any way of ch ild cruel ty and agg rava ted assa ult witho ut the inst ruct ional erro r, those verdicts stand. I n contras t, even th ou gh th e in struc tion al er ror did not direct ly involve the f elony murde r cou nts, th e m ajori ty has det ermi ned th at th ere is a reason able l ikel ih ood that th e ju ry w oul d have fou nd O wens guil ty of inv olun tary m ansl aug hter rath er than felon y mu rder. There i s a ten sion i n thos e concl usi ons. B ecau se th e agg ravate d assaul t an d chil d cru elty coun ts w ere th e pr edic ate offens es fo r th e two f elony murder c ounts a nd the involunta ry ma nslaught er o ptions were l esse r off ens es to th e f elony murder cou nts, th e evi d ence for al l Stansfield, 101 F3d 909 (3d C ir. 1996) (affirming all conv ictions related to m ail fraud and money laundering but revers ing conviction for witness tamp ering where the district court omitted an e ssential element of that offense in charging the jury).

42 of tho se off enses was n ecess aril y in tertwi ned, so it i s di fficu lt fo r me to see h ow an a ppell ate cou rt c an d etermi ne th at th e jury w oul d have con vict ed on certai n char ges bu t not others, but fo r the instr uctiona l error. Moreov er, it is trou bles ome that the maj ority op ini on onl y reac hes these conclus ions by pa rsing the p hrasing o f the jury’s ques tion and tr ying to determine what the jur y was thinking. Tha t analys is ass umes that the jury was thinking as lawyer s do when aski ng the qu esti on an d recei vin g the tri al c ourt ’s an swer. How eve r, courts have lon g recog niz ed th at a ju ry m ay re nder s eemi ngl y irrati onal, in cons isten t verdi cts “ th roug h mi stake, comprom ise, or lenity. ” United Stat es v. P owel l, 469 US 57, 64 (19 84). We do n ot know whether the jury ’s questi on was raise d by one, t wo, or all o f the ju rors, n or can we k now w hat an y one o f th e juro rs was cons idering on t he involunt ary m anslaught er, child crue lty, o r aggrav ated as sa ult counts and w heth er th e erron eou s in struc tion affec ted th at c onsi derati on. Because of th e i n tertwin ed n atu re of thes e coun ts and the

43 conclu sion tha t pl ain er ror affec ted the ou tcom e of the t rial, I b eliev e that a re versal is requir ed on a ll of t he counts, which is cons istent with how t his Co urt ha s dealt w ith revers als even t hough the error related t o mutu all y excl usi ve ve rdi cts di d no t affec t all of the count s. See State v. Owens, 296 Ga. 205, 212 (201 4) (Owens I) (reversi ng an d rema nding on all c ounts, inc luding c hild cr uelty and a ggravated assaul t, ev en tho ug h onl y the v erdicts on fel ony m urder and fel ony involunta ry ma nslaughte r were set aside); Flores v. St ate, 277 Ga. 780, 7 85 n. 4 (200 4) (be caus e ver dic ts of g uil ty for f elon y mu rder an d involunta ry mansla ughter were mutua lly exclus ive, ne w trial grante d on all c oun ts rel ated t o th e speci fi c victi m); Jackso n v. State, 276 Ga. 4 08, 4 13 (20 03) (j udgm ent revers ed and new trial requi red on all c ounts beca use felo ny murder and involunt ary mans laughte r convic tions were mutually e xclusi ve). Finally, I would like to no te some o ther c onsiderat ions t hat couns el for rev ersal on all cou nts. It is not cl ear to me un der w hat authori ty th is Co urt c an “l eave u ndi sturbe d” ce rtai n verdi cts f rom one tri al bu t vac ate th e sen tenc e on that cou nt an d th en or der t hat

44 the trial cour t ent er judg ment an d senten ces follow in g a secon d trial on oth er c oun ts. 13 I am not p ersu aded by th e m ajori ty op ini on’ s relian ce on Brundage v. State, 320 G a. 7 21 (2025) (rev ersin g convi ctions for felon y mu rder an d pos sess ion of a fir earm d urin g the commi ssion of a felon y bas ed on inef fect ive as sis tance of cou nsel fo r faili ng t o objec t to th e pr osecu tor’s i nco rrect ex pl anati on of s elf - defen se an d c oncl uding that the c ount of possess ion of a firea rm by a conv icted felo n un merged fol l owin g th e rever sal of the f elony murde r convict ion). Firs t, in permitting the felon - in - possession convic tion to sta nd, we spec ifically c onclud ed that “the e v idence that Brun dage p osses sed a g un af ter th e ti me o f nec essit y i s uncon tradi cted b y any othe r evi dence.” Id. at 7 28. We cannot conclu de th e s ame in thi s ca se. M o reover, w e cit ed no auth ori ty fo r remandi ng fo r the tri al c ourt to enter a s ent ence o n th e un merged count, as necessa ry, depe nding on the disp osition of t he felony 13 Similarly, the majo rity opinion suggest s that after the r etrial, the trial court can determ ine merger issues for th e child cruelty and aggravat ed assault counts that went to verdict in the pre vious trial. Howe ver, it is not clear to me how a trial court should resolve pot ential merger issu es if the evidence presented is differe nt between the trials.

45 murder cou nt on any retrial. S ee i d. at 732. And, e ven under the majority opinion’s holding, if the Stat e elects to r etry on felon y mu rder an d in volu ntary mansl augh ter, the State w ill st ill have to presen t ev idence on the ch ild cruelty and agg ravate d assault c ount s in order to m eet it s burden on the fe lony murder counts, s o it s eems tha t th e majori ty ’s pro cedur e is u ndul y cumber some wh il e not pr omoti ng an y effi ciency in t he pres enta tion of the evid ence. To the ext ent that t his Court ha s any disc retion in how to o rder a re trial, this fact or c ounsel s in favor of a rev ersal on all co unts. For thes e reas on s, I w ould revers e the coun ts aff ecte d by th e jury’s ques tion – ch il d cruel ty, ag grava ted ass ault, and inv olun tary mansla ughter – as wel l as the tw o cou nts of f elon y mu rder, one predi cated on chil d cruel ty and the othe r on ag grav ated assau lt, so that on rem and t he St ate c an el ec t wheth er to retr y som e or all of thes e charges. I respectfully dissent from those p ortions o f the majo rity opinion t hat hold ot herwise but ot herwise conc ur fully in the major ity opinio n.

46 I am au thori zed to s tate that Pres idin g Ju stice War ren an d Just ice Colvin jo in in this op inion.