¶1In the Supreme Court of Georgia
¶2 Decided: May 3, 2021
¶3 S21A0010. BOOTH v. THE STATE.
¶4 ELLINGTON, Justice.
¶5 A Jackson County jury found Tina Marie Booth guilty of felony
¶6murder and neglect to an elder person in connection with the death
¶7of Linda Cowart. 1 On appeal, Booth contends that the trial court
¶8erred (1) by not declaring a mistrial after the jury returned mutually
¶9exclusive verdicts, and (2) by recalling the jury for deliberations
¶10after the jury was discharged. For the following reasons, we affirm.
¶11 1 Cowart died on March 15, 2017. A Jackson County grand jury indicted Booth for felony murder (Count 1), neglect to an elder person (Count 2), involuntary manslaughter (Count 3), and reckless conduct (Count 4). Booth was tried in September 2019. The jury ultimately found Booth guilty of felony murder (Count 1) and neglect to an elder person (Count 2) and not guilty of Counts 3 and 4. The trial court sentenced Booth to life imprisonment on the felony murder count. The neglect to an elder person count merged with the felony murder count. Booth filed a timely motion for new trial on September 13, 2019, which the trial court denied on June 24, 2020. Booth filed a timely notice of appeal, and the case was docketed to the term of this Court beginning in December 2020 and submitted for decision on the briefs. The evidence at trial showed that Booth took custody of her
¶12elderly mother, Cowart, after Cowart was discharged from the
¶13hospital in October 2016. Booth cared for Cowart in Booth’s home
¶14with the assistance of a registered nurse until early December.
¶15Cowart was in Booth’s unsupervised care from early December until
¶16March 15, 2017, when paramedics entered Booth’s home in response
¶17to a report that Cowart was unconscious. Cowart was suffering from
¶18pressure-induced ulcers that were so severe that her bones were
¶19exposed. The paramedics took Cowart, who was then 74 years old,
¶20to the hospital, where she died from complications caused by the
¶21ulcers.
¶22 A Jackson County grand jury indicted Booth for four crimes in
¶23connection with Cowart’s death: felony murder for causing Cowart’s
¶24death while in the commission of the felony of neglect to an elder
¶25person; neglect to an elder person2 by willfully depriving Cowart of
¶26 2OCGA § 16-5-101 (a) provides: A guardian or other person supervising the welfare of or having immediate charge, control, or custody of a disabled adult, elder person, or resident commits the offense of neglect to a disabled
¶27 2 healthcare while she was supervising Cowart, a person over 65 years
¶28of age; involuntary manslaughter in that she caused Cowart’s death
¶29while in the commission of the unlawful act of reckless conduct; and
¶30reckless conduct 3 in that she disregarded a substantial risk that her
¶31failure to seek medical aid for Cowart’s ulcers would endanger
¶32Cowart’s safety. At trial, following the presentation of evidence and
¶33deliberations, the jury initially found Booth guilty of all four counts.
¶34 The jury’s initial verdicts were reviewed by the trial judge with
¶35counsel and published in open court. The trial court then told the
¶36jurors “that concludes your jury service,” that he would shortly have
¶37them step back into the jury room, and that he would “come back
¶38 adult, elder person, or resident when the person willfully deprives a disabled adult, elder person, or resident of health care, shelter, or necessary sustenance to the extent that the health or well-being of such person is jeopardized. 3 OCGA § 16-5-60 (b) provides:
¶39 A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.
¶40 3 there briefly and then you’ll be dismissed, free to go.” The jurors
¶41were subsequently polled at the request of defense counsel, after
¶42which the judge told the jurors that they were “dismiss[ed] to the
¶43jury room,” with the option to come back to the courtroom for
¶44sentencing if they wished. The judge added that, “[i]f you don’t want
¶45to stay for sentencing you certainly don’t have to. But if you’ll go
¶46ahead and retire to the jury room.”
¶47 After the jury retired, defense counsel objected that the
¶48verdicts were mutually exclusive. The judge called a recess to
¶49research the issue, telling counsel he would go to the jury room to
¶50let the jurors know that there would be a delay before sentencing
¶51and, “If they want to wait, I’ll let them wait. If they want to go, I’ll
¶52let them go.” Less than an hour later, the court called the jurors,
¶53none of whom had left the courthouse, back to the courtroom and
¶54told them that they were not released from jury service and that
¶55they should return to the jury room after picking up lunch. Booth
¶56moved for a mistrial, which the trial court denied.
¶57 The trial court subsequently told the jurors that their initial
¶58 4 verdicts were mutually exclusive and that he was vacating those
¶59verdicts. Over defense counsel’s objection, the court charged the jury
¶60that they could not enter guilty verdicts on both felony murder and
¶61involuntary manslaughter and could not enter guilty verdicts on
¶62both neglect of an elder person and reckless conduct. The court gave
¶63the jury another verdict form and sent the jurors out of the
¶64courtroom to deliberate. The jury returned final verdicts finding
¶65Booth guilty of felony murder and neglect to an elderly person and
¶66not guilty of involuntary manslaughter and reckless conduct.
¶67 1. Booth contends the trial court erred in denying her motion
¶68for a mistrial because the jury initially returned mutually exclusive
¶69verdicts, citing State v. Owens, 296 Ga. 205 (766 SE2d 66) (2014). In
¶70that case, we held that the jury’s verdicts of guilty on the counts of
¶71felony murder and involuntary manslaughter were mutually
¶72exclusive because the felony murder count required the jury to find
¶73criminal intent for the underlying felony while the involuntary
¶74manslaughter count gave the jury the option of choosing the
¶75underlying predicate of reckless conduct, which requires criminal
¶76 5 negligence. See id. at 210-211 (3) (citing Jackson v. State, 276 Ga.
¶77408, 411-412 (577 SE2d 570) (2003)). Since our decision in Owens,
¶78however, we have reconsidered and rejected the proposition that a
¶79finding of an intentional infliction of injury precludes the element of
¶80criminal negligence in reckless conduct and, therefore, have
¶81concluded that convictions for both an offense requiring criminal
¶82intent and an offense requiring a lesser mens rea, based on the same
¶83act against the same victim, are not mutually exclusive. See State v.
¶84Springer, 297 Ga. 376, 381 (1) (774 SE2d 106) (2015).
¶85 “The term ‘mutually exclusive’ generally applies to two guilty
¶86verdicts . . . where it is both legally and logically impossible to
¶87convict on both counts[.]” McElrath v. State, 308 Ga. 104, 110 (2) (b)
¶88(839 SE2d 573) (2020) (citation, punctuation, and emphasis
¶89omitted). As we explained in Springer, “multiple guilty verdicts for
¶90the same conduct that are based on varying levels of mens rea are
¶91not mutually exclusive.” Springer, 297 Ga. at 381 (1). Where the
¶92essential distinction between two crimes is the level of mental
¶93culpability, “[s]uch distinction does not mean that findings of guilt
¶94 6 as to both offenses are irreconcilable or that if the State proves the
¶95greater mens rea, a jury would not be authorized to convict of the
¶96lesser included crime based on the finding of the greater.” Id. at 381-
¶97382 (1). Booth cannot rely on Owens to show otherwise because
¶98Springer necessarily overruled Owens. See Springer, 297 Ga. at 383
¶99(2) (overruling Jackson, 276 Ga. 408, “and its progeny”).
¶100 Here, the conduct underlying the charges against Booth was
¶101her failure to provide healthcare for Cowart: intentionally by
¶102willfully depriving Booth of healthcare in the count of neglect to an
¶103elder person, which served as the felony underlying the count of
¶104felony murder, and negligently by disregarding a substantial and
¶105unjustifiable risk and grossly deviating from the standard of care in
¶106the count of reckless conduct, which served as the unlawful act
¶107underlying the charge of involuntary manslaughter. Because the
¶108crimes as charged could be accomplished by the same conduct, but
¶109reflect mens rea of varying levels, the verdicts returned by the jury
¶110finding Booth guilty of all four counts are not mutually exclusive.
¶111See Gomez v. State, 301 Ga. 445, 468 (13) (801 SE2d 847) (2017);
¶112 7 Springer, 297 Ga. at 381 (1). It follows that Booth’s claim of error is
¶113without merit, notwithstanding the trial court’s incorrect
¶114determination at trial that the verdicts were mutually exclusive.
¶115And after those initial verdicts were vacated, the jury’s final verdicts
¶116plainly were not mutually exclusive.
¶117 2. Booth also contends that the trial court erred by recalling
¶118the jury for deliberations after the jury had been discharged. The
¶119premise of this claim of error is that the jury had initially returned
¶120mutually exclusive verdicts. In such an instance, the trial court may
¶121refuse to accept the verdicts and send the jury back to continue its
¶122deliberations. See Dumas v. State, 266 Ga. 797, 800 (2) (471 SE2d
¶123508) (1996). Booth argues that the trial court could not send the jury
¶124back to continue its deliberations in this case, however, because the
¶125initial verdicts became final under OCGA § 17-9-40 once the jury
¶126had been discharged.
¶127 The jury was not precluded from deliberating a second time by
¶128OCGA § 17-9-40, which provides in applicable part that “after [a
¶129verdict] has been received, recorded, and the jury dispersed, it may
¶130 8 not be amended in matter of substance, either by what the jurors
¶131say they intended to find or otherwise.” (Emphasis supplied.). The
¶132record shows that after being told that they were “dismiss[ed] to the
¶133jury room,” and before being recalled to the courtroom, none of them
¶134left the courthouse. The jury remained together as a whole and did
¶135not separate before being asked to deliberate further. See Benton v.
¶136Wesley Machinery, 191 Ga. App. 334, 335 (1) (381 SE2d 577) (1989)
¶137(although the jury had been dismissed after returning its first
¶138verdict, it had not yet been dispersed, and the trial court did not err
¶139in allowing the jury to retire for further deliberations). Compare
¶140Wells v. State, 116 Ga. 87, 89 (42 SE 390) (1902) (verdict could not
¶141be amended because “when the verdict was agreed on and the jury
¶142dispersed the trial was, in effect, at an end”); Smith v. State, 59 Ga.
¶143513, 514 (1877) (trial was at “an end when the jury made a verdict
¶144and separated”). Accordingly, the trial court was not precluded by
¶145OCGA § 17-9-40 from recalling the jury to deliberate further.
¶146 The trial court properly should have allowed the initial verdicts
¶147to stand because they were not actually mutually exclusive, as we
¶148 9 explained in Division 1, supra. Booth, however, cannot show she was
¶149harmed by the trial court’s decision to vacate those verdicts and
¶150require the jury to deliberate a second time, given that the jury
¶151found her guilty of the greater offenses on both occasions and there
¶152is no allegation, much less proof, of any improper conduct or
¶153influence on the jurors while they were in the jury room in between
¶154their deliberations. As neither of Booth’s claims of error has merit,
¶155the judgment of the trial court will stand.
¶156 Judgment affirmed. All the Justices concur.
¶157 10