McCullum v. State

¶1NOTICE: 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.

¶2In the Supreme Court of Georgia

¶3 Decided: March 5, 2024

¶4 S23A0927. McCULLUM v. THE STATE.

¶5 PINSON, Justice.

¶6 In November 2019, Appellant Samuel Earl McCullum was con-

¶7victed of the 1998 rape and malice murder of Monica Blackwell and

¶8the 1999 rape of C.C. 1 McCullum contends on appeal that his con-

¶9victions for the malice murder and rape of Blackwell, who died of

¶10 1 Blackwell died on August 6, 1998, and C.C. was raped on May 9, 1999.

¶11On February 28, 2017, a DeKalb County grand jury indicted McCullum for malice murder (Count 1), felony murder predicated on rape (Count 2), felony murder predicated on aggravated assault with intent to rape (Count 3), and rape (Count 4), all in connection with Blackwell, and for another count of rape (Count 5), in connection with C.C. (Count 5 superseded a 2007 indictment that had also charged him with raping C.C.). At a trial from November 4 through 14, 2019, a jury found McCullum guilty on all counts. The trial court sentenced McCullum to life in prison for malice murder, plus two consecutive life sentences for the rape convictions; the felony murder counts were vacated by operation of law. McCullum filed a timely motion for new trial on December 10, 2019, which was amended by new counsel on October 28, 2022, and again on December 14, 2022. Following a hearing on December 15, 2022, the trial court denied McCullum’s motion for new trial, as amended, on January 3, 2023. McCullum filed a timely notice of appeal on January 25, 2023, and the case was docketed cocaine intoxication and blunt-force trauma, were not supported by

¶12sufficient evidence.2 As to malice murder, McCullum argues that the

¶13evidence was not sufficient because no evidence showed that he in-

¶14toxicated Blackwell or otherwise connected him to the drugs she

¶15took. As to Blackwell’s rape, he argues the evidence was not suffi-

¶16cient because the evidence did not exclude his hypothesis that he

¶17and Blackwell had a consensual sexual relationship. But the evi-

¶18dence, which we recount in detail below, was sufficient to authorize

¶19the jury to find that McCullum’s actions caused Blackwell’s death

¶20and to convict him of malice murder. The evidence was also consti-

¶21tutionally sufficient to convict McCullum of Blackwell’s rape: evi-

¶22dence that Blackwell was found partially clothed and beaten by the

¶23side of the road with McCullum’s sperm in her vagina authorized

¶24to the August 2023 term of this Court and submitted for a decision on the briefs. 2 To the extent McCullum challenges the sufficiency of the evidence sup-

¶25porting the counts for which he was found guilty but not convicted—the two counts of felony murder of Blackwell—those challenges are moot because the counts either merged or were vacated by operation of law. See, e.g., Beamon v. State, 314 Ga. 798, 800 (2) n.2 (879 SE2d 457) (2022).

¶26 2 the jury to reject his hypothesis that they had consensual sex. Fi-

¶27nally, with respect to the conviction for the rape of C.C., McCullum

¶28contends that the trial court abused its discretion in denying his mo-

¶29tion to dismiss that count on constitutional speedy trial grounds and

¶30in denying his motion to sever that count from the counts related to

¶31Blackwell’s murder and rape, but we conclude that the trial court

¶32applied the correct standards and did not abuse its discretion by

¶33denying the speedy trial motion or the motion to sever.3

¶34 1. The Evidence at Trial

¶35 The evidence at trial, viewed in the light most favorable to the

¶36verdicts, showed the following.

¶37 (a) Evidence of Blackwell’s Rape and Murder

¶38 Bonita Cox, Blackwell’s cousin, last saw Blackwell in early Au-

¶39gust 1998. Blackwell was a recovering drug addict, had been in re-

¶40hab, and, according to Cox, was “being a mother” to her son. On the

¶41 3 McCullum does not challenge the sufficiency of the evidence for his con-

¶42viction for the rape of C.C. See Davenport v. State, 309 Ga. 385, 392 (4) (846 SE2d 83) (2020) (holding that we no longer routinely review sua sponte the sufficiency of the evidence in non-death penalty cases). 3 last day Cox saw her, Blackwell was with a man whom Cox had

¶43never seen before. At trial, Cox identified McCullum in the court-

¶44room as the man she saw Blackwell with that day. Blackwell intro-

¶45duced Cox to McCullum, said she would be back later, and left with

¶46him. After that, Cox never saw Blackwell alive again.

¶47 On August 6, 1998, a group of friends saw a body on the road-

¶48side and reported it to the police. This turned out to be Blackwell,

¶49who was partially clothed and “barely alive.” Blackwell was trans-

¶50ported to the hospital, where she died.

¶51 Dr. Gerald Gowitt, the medical examiner who performed

¶52Blackwell’s autopsy, listed her cause of death as “acute cocaine in-

¶53toxication.” Dr. Gowitt testified that Blackwell had several abra-

¶54sions on her face; a tooth knocked out, which was located in her

¶55esophagus; hemorrhages and bruises on the back of her head; and

¶56other similar blunt-force impacts to both sides of her head—all of

¶57which were consistent with someone hitting or beating her. Black-

¶58well also had a “large amount” of benzoylecgonine, “a cocaine break-

¶59down product,” in her blood.

¶60 4  Dr. Gowitt explained that cocaine is a stimulant that raises the

¶61user’s pulse and blood pressure, and “something you really don’t

¶62want to have happen to you” while under the influence of cocaine is

¶63another event, such as a beating or rape, that raises the pulse and

¶64blood pressure even more. Dr. Gowitt believed Blackwell died be-

¶65cause, while she was under the influence of cocaine, she experienced

¶66“a lot of trauma to the head,” which would have raised her pulse and

¶67blood pressure. Dr. Gowitt was unable to determine from the au-

¶68topsy if Blackwell had been raped but opined that, if she had been,

¶69that too would have contributed to her death in combination with

¶70the beating and cocaine. He concluded that Blackwell died because

¶71of “[t]he combination of acute cocaine intoxication superimposed on

¶72all of these head injuries.”

¶73 During the autopsy, Dr. Gowitt also did a sexual assault work-

¶74up on Blackwell, consistent with the standard office policy at the

¶75time for “any female that is murdered.” A GBI forensic scientist

¶76identified the presence of sperm on the vaginal smear collected dur-

¶77ing Blackwell’s autopsy, developed a DNA profile from the sperm,

¶78 5 and added that DNA profile to the Combined DNA Index System

¶79(CODIS).

¶80 A GBI forensic serologist tested Blackwell’s shorts but found

¶81no seminal fluid. In response to a hypothetical scenario posed by the

¶82State, the serologist agreed that the absence of seminal fluid on

¶83Blackwell’s shorts was more consistent with her being raped and

¶84then dropped on the side of the road than it was with having consen-

¶85sual sex. If Blackwell had consensual sex, dressed, and walked

¶86around afterwards, gravity would have caused the seminal fluid to

¶87leave her body, and the fluid likely would have been found on her

¶88shorts.

¶89 In 2002, the DNA evidence collected during the investigation

¶90of Blackwell’s rape and murder was matched to McCullum via

¶91CODIS.

¶92 (b) Evidence of C.C.’s Rape

¶93 On the evening of May 9, 1999, C.C. was walking along Law-

¶94renceville Highway when a car approached her and the man driving

¶95offered her a ride, which she accepted. The man told C.C. he needed

¶96 6 to stop by his work, pulled into an auto repair shop, locked the gate,

¶97and then pulled his car into one of the bays and closed the bay door.

¶98C.C. was worried at this point but was unable to flee because there

¶99was a guard dog on the property that “seemed to be very vicious.”

¶100The man raped C.C. in the back of the car. C.C. testified that the

¶101man was “very aggressive. So the more I fought him, the more ag-

¶102gressive he would become with me.” The man then made C.C. exit

¶103the car and go into the bathroom, where he raped her again and tried

¶104to force her to give him oral sex; when she refused, he “hit” her and

¶105“knocked [her] to the ground,” and then raped her again. Eventually,

¶106the man drove C.C. back to her apartment, letting her go after she

¶107promised she would not “tell on him” because she was “on the run”

¶108(she had come to Georgia because she was trying to avoid arrest for

¶109drug charges in Ohio).

¶110 C.C.’s friends convinced her to report the rape, and she did. But

¶111she gave the police a fake name because she did not want to be ar-

¶112rested for the pending charges in Ohio. C.C. submitted to a sexual

¶113assault examination, and her sexual assault kit was sent to the GBI,

¶114 7 where an analyst generated a DNA profile from sperm that was pre-

¶115sent on a vaginal swab collected during C.C.’s examination. That

¶116DNA was entered into CODIS. In 2002, the DNA evidence collected

¶117during C.C.’s sexual assault examination was matched to McCullum

¶118via CODIS.

¶119 At trial, C.C. identified McCullum in the courtroom as the man

¶120who gave her a ride and raped her in May 1999. Sherri Meeks, the

¶121owner and operator of the auto repair shop that employed McCullum

¶122at the time of C.C.’s assault, testified that McCullum sometimes did

¶123repairs overnight, alone, and that McCullum therefore had keys to

¶124the property, which was fenced. Meeks also confirmed that a Ger-

¶125man Shepherd guard dog who was not “friendly to strangers” stayed

¶126on the property at night to guard it.

¶127 (c) Evidence of the CODIS Match and Other Assaults

¶128 In 2007, investigators from Georgia traveled to North Carolina,

¶129where McCullum was incarcerated, to obtain a buccal swab from

¶130him to confirm the CODIS matches to the DNA collected from Black-

¶131well’s autopsy and C.C.’s sexual assault examination. The buccal

¶132 8 swab was tested and confirmed the match to the DNA collected in

¶133C.C.’s case in 2007;4 the match to the DNA from Blackwell’s case

¶134was confirmed in 2017.5 McCullum’s DNA was also matched to evi-

¶135dence collected during the investigation of the 1995 rape and murder

¶136of Theresa Blackwell (no relation to Monica Blackwell) in North Car-

¶137olina, the 1998 rape and murder of Tamika Withers in Fulton

¶138County, Georgia, and the 2002 rape of a young woman, A.J., in Ken-

¶139tucky. At trial, the State introduced evidence of each of these as-

¶140saults under OCGA § 24-4-413,6 which showed the following.

¶141 As to the rape of A.J. in Kentucky, officers responded to a 911

¶142 4 McCullum was indicted for C.C.’s rape in 2007, but that indictment was

¶143later superseded by the 2017 indictment that charged him with crimes against both Blackwell and C.C. 5 Investigator Bill Presnell explained that when he submitted McCul-

¶144lum’s buccal swab to the GBI in 2007, he thought the GBI would test the DNA against both cases. But when Blackwell’s case was put on a trial calendar in 2017, he realized that the DNA had been confirmed against only C.C.’s case, not Blackwell’s case. He then submitted a new request to the GBI, and McCullum’s buccal swab DNA was then confirmed against the DNA collected in Blackwell’s case. 6 That code section provides that “[i]n a criminal proceeding in which the

¶145accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” OCGA § 24-4-413 (a). On appeal, McCullum does not challenge the admissibility of the evidence of his assaults against A.J., Theresea Blackwell, or Withers. 9 call from an auto repair shop reporting a rape in progress. When

¶146officers arrived at the shop, they first encountered McCullum and

¶147then heard a woman, A.J., screaming. Officers detained McCullum

¶148and then found A.J. chained to a pipe and bound with duct tape with

¶149her pants around her ankles. McCullum worked at the shop.

¶150 During the investigation of A.J.’s rape, officers in Kentucky

¶151learned that McCullum had lived in Fayetteville, North Carolina in

¶1521995, contacted police in North Carolina, and suggested “it might be

¶153a good idea” for them to check for any unsolved homicides during

¶154that time. North Carolina police located a sexual assault kit with

¶155DNA evidence from the unsolved 1995 rape and murder of Theresa

¶156Blackwell, who had been found dead on the side of the road with her

¶157blouse pulled up, dried blood on her face and in her hair, and liga-

¶158ture marks on her neck, hands, and ankles; a fan belt and bungee

¶159cord were also found near her body. The DNA evidence from Theresa

¶160Blackwell’s case produced a match in CODIS to McCullum. North

¶161Carolina police were able to confirm that in 1995, McCullum worked

¶162at an auto repair shop located less than a mile from where Theresa’s

¶163 10 body was found.

¶164 Withers’s body was found in Fulton County, Georgia on March

¶16515, 1998. The dress she had been wearing was knotted around her

¶166arm, she had blunt-force trauma and lacerations about her head and

¶167face, and her cause of death was blunt-force trauma. Forensic test-

¶168ing revealed the presence of saliva on Withers’s breast, a DNA pro-

¶169file was obtained from the saliva and added to CODIS, and that DNA

¶170was later matched to McCullum.

¶171 2. The Sufficiency of the Evidence of Malice Murder

¶172 McCullum contends that the evidence was insufficient as a

¶173matter of constitutional due process to support his conviction for the

¶174malice murder of Blackwell. He argues that the State failed to prove

¶175beyond a reasonable doubt that he caused Blackwell’s death because

¶176there was no evidence that he gave Blackwell the cocaine that killed

¶177her or that otherwise connected him to the cocaine she took.

¶178 (a) In reviewing the sufficiency of the evidence as a matter of

¶179constitutional due process, “the relevant question is whether, after

¶180viewing the evidence in the light most favorable to the prosecution,

¶181 11 any rational trier of fact could have found the essential elements of

¶182the crime beyond a reasonable doubt.” Cooper v. State, 317 Ga. 676,

¶183682 (1) (895 SE2d 285) (2023) (quoting Jackson v. Virginia, 443 U.S.

¶184307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)).

¶185 “A person commits the offense of murder when he unlawfully

¶186and with malice aforethought, either express or implied, causes the

¶187death of another human being.” OCGA § 16-5-1 (a). In other words,

¶188the essential elements that must be proven to convict someone of

¶189malice murder are (1) malice, (2) causation, and (3) the death of an-

¶190other person. See Taylor v. State, 303 Ga. 624, 626 (1) (814 SE2d

¶191353) (2018). “Whether a killing is intentional and malicious is for the

¶192jury to determine from all the facts and circumstances.” Id. (punctu-

¶193ation and citation omitted). A malicious intent to kill can be shown

¶194by conduct the defendant knows “is substantially certain to cause

¶195the result, whether or not he desires the result to occur.” Id. (citation

¶196and punctuation omitted). “Cause,” for purposes of malice murder,

¶197is “proximate cause.” Id. at 627 (1). An injury proximately causes the

¶198victim’s death when the injury (1) is “the sole proximate cause of the

¶199 12 death,” (2) “directly and materially” contributes to the “happening of

¶200a subsequent accruing immediate cause of the death,” or (3) “mate-

¶201rially accelerated the death, although proximately occasioned by a

¶202pre-existing cause.” Id. (citation and punctuation omitted).

¶203 The evidence at McCullum’s trial, viewed in the light most fa-

¶204vorable to the verdicts, authorized the jury to conclude that McCul-

¶205lum’s conduct caused Blackwell’s death because, at a minimum, he

¶206“materially accelerated” her death by beating and raping her, even

¶207if the death was “proximately occasioned by a pre-existing cause,”

¶208that is, cocaine intoxication. See id. The evidence showed that

¶209McCullum and Blackwell were together before her death, he was the

¶210last person she was seen with when she was alive, semen found in

¶211Blackwell’s vagina produced a DNA profile that matched McCul-

¶212lum’s DNA, the absence of seminal fluid on Blackwell’s shorts was

¶213more consistent with rape than consensual sex, and she had blunt-

¶214force injuries to her head that were consistent with hitting or beat-

¶215ing. Although the medical examiner listed Blackwell’s cause of death

¶216as “acute cocaine intoxication,” he testified that the “combination” of

¶217 13 Blackwell’s head injuries and her cocaine intoxication together

¶218caused her death; he also agreed that a rape would have further

¶219raised Blackwell’s blood pressure and pulse, and so would have also

¶220contributed to her death. Based on this evidence, the jury was au-

¶221thorized to conclude that McCullum beat and raped Blackwell and

¶222left her on the side of the road while she was under the influence of

¶223cocaine. The jury was also authorized, based on the medical evi-

¶224dence, to conclude that the beating and rape caused her death be-

¶225cause, according to the medical examiner’s testimony, those events,

¶226in combination with the cocaine, caused her death.

¶227 As for malice, the evidence authorized the jury to infer malice

¶228from the condition Blackwell was found in—nearly dead by the side

¶229of the road, only partially dressed, with significant head injuries.

¶230This condition was also nearly identical to the conditions in which

¶231McCullum’s other rape and murder victims were found. Like Black-

¶232well, the murder and rape victims from North Carolina and Fulton

¶233County, Georgia were also found by the side of the road, partially

¶234clothed, with head injuries and bodily fluids containing McCullum’s

¶235 14 DNA on them.

¶236 In sum, the evidence was constitutionally sufficient to support

¶237McCullum’s conviction for the malice murder of Blackwell. See, e.g.,

¶238Taylor, 303 Ga. at 626-628 (1) (affirming conviction for malice mur-

¶239der where the evidence authorized the jury to conclude that the de-

¶240fendant intended to hit the victim with his car, which was the prox-

¶241imate cause of the victim’s death from an embolism).

¶242 (b) McCullum points out that the indictment charged that he

¶243“did with malice aforethought cause the death of Monica Blackwell,

¶244a human being, by cocaine intoxication in a manner unknown to the

¶245Grand Jury and dumping her without medical assistance on the side

¶246of the road.” Relying on the indictment’s language, he argues that

¶247the evidence therefore was not constitutionally sufficient because no

¶248evidence connected him to the cocaine Blackwell took, so the State

¶249did not prove that he caused her death “by cocaine intoxication” as

¶250the indictment specified. But in support of this argument, McCullum

¶251cites only the United States Supreme Court’s pathmarking decision

¶252 15 on the due process standard for assessing the sufficiency of the evi-

¶253dence, Jackson v. Virginia, 443 U.S. at 319 (III) (B), and one of our

¶254decisions applying Jackson’s standard. And that standard asks

¶255“whether, after viewing the evidence in the light most favorable to

¶256the prosecution, any rational trier of fact could have found the essen-

¶257tial elements of the crime beyond a reasonable doubt.” Id. (second

¶258emphasis added). In other words, the Supreme Court’s standard ex-

¶259pressly says that evidence is measured against the essential ele-

¶260ments of the crime, with no mention of other factual allegations set

¶261out in the indictment that are not elements of the crime. That is how

¶262we have consistently applied Jackson’s venerable standard since it

¶263was announced more than four decades ago. When our sufficiency

¶264decisions have looked to the indictment, they have done so only to

¶265determine which crime was charged, and whether the evidence was

¶266sufficient to authorize a jury to find the defendant guilty of that

¶267crime beyond a reasonable doubt. See, e.g., Harrington v. State, 300

¶268Ga. 574, 577-578 (2) (a) (797 SE2d 107) (2017) (reversing armed rob-

¶269bery conviction because the evidence did not exclude the reasonable

¶270 16 hypothesis that the property in question, a cell phone, was taken

¶271during the defendant’s earlier entry into the victim’s home and be-

¶272fore the victim interrupted the burglary-in-progress and was shot by

¶273the defendant, which meant there was not sufficient evidence of an

¶274essential element of the crime, i.e., that the phone was taken from

¶275the victim’s person by the use of an offensive weapon); Walker v.

¶276State, 296 Ga. 161, 166-167 (1) (c) (766 SE2d 28) (2014) (reversing

¶277conviction for felony murder of a baby because, although the evi-

¶278dence may have been sufficient to show that the defendant smoth-

¶279ered the baby, the indictment only charged him with felony murder

¶280based on predicate felonies—i.e., essential elements of the crime—

¶281of which there was not sufficient evidence). McCullum has not cited

¶282any decision (from Georgia or otherwise) that supports this indict-

¶283ment-allegation-focused approach, which his argument at best im-

¶284plicitly suggests. Nor has he offered any argument in support of de-

¶285parting from our longstanding approach to applying Jackson to the

¶286 17 essential elements of the crime.7 Absent any such showing, we de-

¶287 7 In Musacchio v. United States, 577 U.S. 237 (136 SCt 70, 193 LE2d 639)

¶288(2016), the United States Supreme Court reiterated that, under Jackson v. Virginia, a challenge to the constitutional sufficiency of the evidence looks to “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 577 U.S. at 243 (II) (citation and punctuation omitted) (second emphasis added). The question in Musacchio was whether, in assessing the constitutional sufficiency of the evidence, a jury instruction that “incorrectly adds one more element” to the charged crime requires proof beyond a reasonable doubt of that extra element; the Court concluded that such proof of an extra element was not required. Id. at 243-244 (II). In a footnote, the Court noted that it left “open several matters,” and “express[ed] no view on the question whether sufficiency of the evidence at trial must be judged by reference to the elements charged in the indictment, even if the indictment charges one or more elements not required by statute,” among other questions. Id. at 244 (II) n.2. We must take the Court’s explanation at face value: the Court simply took “no view” on the question whether the sufficiency analysis should measure evidence against not just the elements of the crime, but also extra “elements” added in the indictment that are not part of the crime. The Court offered nothing to suggest that this novel theory of sufficiency finds support in Jackson or any of its past decisions. Nor does the balance of Musacchio hint at such a theory. The dissent suggests that Musacchio is both “consistent with” and may go “further” than Jackson in this way when it explains sufficiency review as ensuring “that a defendant receives . . . a meaningful opportunity to defend against the charges against him,” but that understanding of sufficiency review comes directly from—and indeed, is a quote from—Jackson itself. See Musacchio, 577 U.S. at 243 (II) (quoting Jackson, 443 U.S. at 314-315). We decline to read reasoning derived from Jackson itself as an expansion of that decision’s standard for sufficiency review. Nor do we read Jackson itself to require more than what it says, which is to look at whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” when assessing the constitutional sufficiency of the evidence. Jackson, 443 U.S. at 319 (III) (B) (second emphasis added). 18 cline to expand that settled approach in the way McCullum’s suffi-

¶289ciency argument would require.8 And as we just explained above,

¶290the evidence here was sufficient to authorize the jury to find beyond

¶291a reasonable doubt that each essential element of malice murder

¶292 8 We do not decide a “difficult open question of federal constitutional law”

¶293here, as the dissent suggests. As we noted above, we do not read the Supreme Court’s decision in Musacchio to have “opened” any such question anew about Jackson’s well-settled standard for assessing the constitutional sufficiency of the evidence, and McCullum has raised no argument that we should address and decide any such “open question.” Given this posture, we merely apply Jackson’s established standard and measure the evidence against the essential elements of the charged offense, just like thousands of our decisions assessing the constitutional sufficiency of evidence in the nearly 45 years since Jackson was issued. By contrast, the dissent would expand sufficiency review in a novel way without citing a single decision across the country that has actually adopted that expanded approach. Although the dissent proposes an alternative path to reversal by construing McCullum’s sufficiency argument as a fatal variance claim, the dissent resolves this claim by applying its expanded view of the standard for reviewing the sufficiency of the evidence to reverse the trial court’s denial of McCullum’s motion for a directed verdict on malice murder. So under either the dissent’s novel indictment-based sufficiency review or the construed fatal-variance theory, the dissent necessarily rejects the longstanding approach to sufficiency review that we apply here, under which McCullum’s conviction is affirmed. The dissent expresses concern about the “due process implications” of applying Jackson’s established approach, relying on a hypothetical prosecution for malice murder by shooting that the State proves at trial by evidence of poisoning or stabbing. We agree that scenario sounds unfair, but the defendant’s recourse there is clear: he could raise a fatal variance claim and secure a new trial if the difference between the indictment and the evidence introduced at trial prevented him from preparing his defense, took him by surprise, or failed to adequately protect against another prosecution for the same offense. See, e.g., Roscoe v. State, 288 Ga. 775, 776 (3) (707 SE2d 90) (2011). See also Berger v. United States, 295 U.S. 78, 82 (1) (55 SCt 629, 79 LE2d 1314) (1935). 19 was met. His claim therefore fails. 9

¶294 3. The Sufficiency of the Evidence of the Rape of Blackwell

¶295 McCullum contends that the evidence at trial was not suffi-

¶296cient to convict him of Blackwell’s rape as either a matter of consti-

¶297tutional due process or under OCGA § 24-14-6 (“To warrant a con-

¶298viction on circumstantial evidence, the proved facts shall not only be

¶299consistent with the hypothesis of guilt, but shall exclude every other

¶300 9 McCullum’s only enumeration and argument challenging his malice

¶301murder conviction is that the evidence was insufficient to support that conviction as a matter of constitutional due process. A sufficiency claim is different in kind from a fatal-variance claim, which “merely is concerned with proof introduced in support of allegations and is not concerned with the findings the jury may make after having heard the evidence.” See Oglesby v. State, 243 Ga. 690, 692 (3) (256 SE2d 371) (1979) (emphasis added). See also McCrary v. State, 252 Ga. 521, 522, 524 (314 SE2d 662) (1984) (concluding that the evidence was constitutionally sufficient to support the conviction for felony murder predicated on robbery but reversing that conviction because of a fatal variance where the indictment for malice murder did not “fairly put[] the defendant on notice” that he would have to defend against a charge of robbery or a felony murder predicated thereon). Even to the extent that McCullum’s sufficiency argument notes a difference between an allegation in the indictment and the proof at trial, he has offered no argument that this difference was a fatal variance—that is, that it prevented him from preparing his defense to the charges against him, took him by surprise, or failed to adequately protect him against another prosecution for the same offense. See, e.g., Roscoe, 288 Ga. at 776 (3). So we cannot reasonably construe McCullum’s sufficiency arguments as a fatal-variance claim, and we express no opinion as to whether such a claim could have been successful were it properly before us.

¶302 20 reasonable hypothesis save that of the guilt of the accused.”).

¶303 These claims fail. Viewed in the light most favorable to the ver-

¶304dict, the evidence showed that McCullum was the last person seen

¶305with Blackwell before she was found beaten and left on the side of

¶306the road, half naked, and with his sperm in her vagina, and the ab-

¶307sence of seminal fluid in Blackwell’s shorts was more consistent with

¶308rape than consensual sex. That evidence authorized a jury to find

¶309beyond a reasonable doubt that McCullum raped Blackwell, and to

¶310reject as unreasonable the hypothesis that Blackwell consented to

¶311having sex with McCullum. See OCGA § 16-6-1 (a) (1) (“A person

¶312commits the offense of rape when he has carnal knowledge of: . . . [a]

¶313female forcibly and against her will.”). See also Lewis v. State, 306

¶314Ga. 455, 457, 459 (1) (a) (831 SE2d 771) (2019) (evidence which in-

¶315cluded that the victim’s body was discovered partially undressed,

¶316had defensive wounds, and had defendant’s sperm in her vagina was

¶317sufficient to sustain his convictions for murder and rape, and au-

¶318thorized the jury to reject his alternate hypothesis, that he and the

¶319victim had consensual sex, as unreasonable); Daniels v. State, 298

¶320 21 Ga. 120, 123 (1) (779 SE2d 640) (2015) (evidence, including the state

¶321in which the victim’s body was found, DNA evidence linking the de-

¶322fendant to the victim, and evidence of prior similarly violent sexual

¶323conduct by the defendant, was “sufficient to support the jury’s con-

¶324clusion that [the defendant] assaulted, raped, and murdered [the

¶325victim] as opposed to having engaged in consensual sex with her

¶326prior to her death at the hands of another”); Walker v. State, 282 Ga.

¶327406, 408 (1) (651 SE2d 12) (2007) (evidence, which included the state

¶328in which the victim’s body was discovered and DNA evidence linking

¶329the defendant to the victim, was sufficient to support the jury’s con-

¶330clusion that the defendant raped and murdered the victim, and au-

¶331thorized the jury to reject the defendant’s alternate hypotheses, in-

¶332cluding that he and the victim had consensual sex).

¶333 4. The Speedy Trial Motion

¶334 McCullum contends that the trial court abused its discretion in

¶335 22 denying his motion to dismiss Count 5 (rape of C.C.) on constitu-

¶336tional speedy trial grounds. 10

¶337 McCullum was initially indicted for C.C.’s rape in 2007. In

¶3382011, he filed a motion to dismiss the indictment for violations of his

¶339right to a speedy trial under the federal and state constitutions. A

¶340month later, the case was dead-docketed because McCullum was

¶341transferred to Kentucky to stand trial for the rape of A.J. In 2017,

¶342he was reindicted for C.C.’s rape in a superseding indictment that

¶343also included charges for the rape and murder of Blackwell. On June

¶34422, 2017, McCullum filed a “Motion to Adopt and Conform Applica-

¶345ble Motions Filed under [the] Previous Indictment,” which encom-

¶346passed the 2011 motion to dismiss on speedy trial grounds. The trial

¶347court held a hearing on the speedy trial motion, orally denied the

¶348motion, and then entered a written order of denial on July 13, 2017.

¶349 On June 24, 2019, McCullum renewed his speedy trial motion.

¶350 10 McCullum does not contend that the speedy trial provision found in

¶351Article I, Section I, Paragraph XI (a) of the Georgia Constitution offers greater protection than the analogous provision found in the Sixth Amendment to the United States Constitution, so we assess his claim under only the United States Constitution. 23 The trial court held another evidentiary hearing and again denied

¶352the motion. The court’s July 25, 2019, order incorporated the factual

¶353findings and rulings from the July 2017 order and included addi-

¶354tional findings with respect to the evidence that McCullum pre-

¶355sented at the 2019 hearing.

¶356 Constitutional speedy trial claims are analyzed under the two-

¶357part framework set out in Barker v. Wingo, 407 U.S. 514, 530-533

¶358(IV) (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United States,

¶359505 U.S. 647, 651 (II) (112 SCt 2686, 120 LE2d 520) (1992). Courts

¶360must first consider whether the length of time between the defend-

¶361ant’s arrest and trial is “presumptively prejudicial,” and a delay

¶362greater than one year is “typically presumed to be prejudicial.” Go-

¶363ins v. State, 306 Ga. 55, 57 (2) (b) (829 SE2d 89) (2019) (citation and

¶364punctuation omitted). The State concedes that the decade-plus delay

¶365between McCullum’s indictment and trial for C.C.’s rape was pre-

¶366sumptively prejudicial, and we agree. See id.

¶367 If a court concludes the delay is presumptively prejudicial, as

¶368the trial court correctly did here, it must then apply a balancing test

¶369 24 that considers the length and reasons for the delay, the defendant’s

¶370assertion of his speedy-trial right, and the prejudice to the defend-

¶371ant. See Johnson v. State, 300 Ga. 252, 257 (3) (794 SE2d 60) (2016).

¶372These factors are to be considered collectively along with the rele-

¶373vant circumstances, see Leonard v. State, 316 Ga. 827, 839 (6) (889

¶374SE2d 837) (2023), and no one element is determinative of whether

¶375the right to a speedy trial has been violated, see Sweatman v. State,

¶376287 Ga. 872, 873 (2) (700 SE2d 579) (2010). Because trial courts are

¶377generally better situated to apply this “ad hoc” approach, we “accept

¶378the factual findings of the trial court unless they are clearly errone-

¶379ous” and we accept the trial court’s conclusion “unless it amounts to

¶380an abuse of discretion.” See Henderson v. State, 310 Ga. 231, 235 (2)

¶381(850 SE2d 152) (2020) (citation omitted). We next address each of

¶382the Barker-Doggett factors in turn.

¶383 (a) The Length of the Delay

¶384 As stated above, we agree with the trial court that the 10-plus-

¶385year delay between McCullum’s indictment and trial for C.C.’s rape

¶386was presumptively prejudicial. See Goins, 305 Ga. at 57 (2) (b). The

¶387 25 trial court found that McCullum had been incarcerated out of state

¶388for eight of the ten-plus years that comprised the delay, thus miti-

¶389gating the weight the delay’s length had against the State, and ruled

¶390that “[w]eighing the length of the delay under the unique facts and

¶391circumstances of this case, the delay should be weighed against the

¶392State but not heavily.” We agree that the delay was uncommonly

¶393long, yet under the circumstances of this case, we see no abuse of the

¶394trial court’s discretion in weighing that factor against the State but

¶395not heavily given that a presumptively prejudicial length of delay

¶396does not “automatically trump the other Barker factors” and must

¶397instead be considered as part of the “case-by-case balancing required

¶398by Barker and this Court’s precedent.” See State v. Pickett, 288 Ga.

¶399674, 678 (2) (d) n.1 (706 SE2d 561) (2011) (“[A] bright-line rule al-

¶400lowing the presumption of prejudice after any period of delay to au-

¶401tomatically trump the other Barker factors would be contrary to the

¶402case-by-case balancing required by Barker and this Court’s prece-

¶403dent.”).

¶404 26  (b) The Reasons for the Delay

¶405 The trial court found that from 2007 to 2009, McCullum was

¶406incarcerated in North Carolina and Kentucky, so his incarceration

¶407during that period was not attributable to the pending rape charge

¶408in Georgia. From 2009 to 2011, the trial court found, McCullum was

¶409incarcerated in Georgia while awaiting trial for C.C.’s rape but, at

¶410the same time, was also serving his sentence for his North Carolina

¶411conviction. The trial court also found that from September 2011 to

¶412February 2017, the case was dead docketed at the State’s request to

¶413permit Kentucky’s prosecution of McCullum for the rape of A.J.

¶414McCullum was extradited back to Georgia in February 2017, and

¶415since February 2017, McCullum had been arraigned and motions

¶416had been heard. The trial court also considered the complexity of the

¶417case and the State’s difficulty in locating an out-of-state witness,

¶418noted that the case appeared on “several trial calendars” during this

¶419period but did not go forward, and concluded that this factor “should

¶420weigh against the State, but not heavily,” in part because McCullum

¶421bore “some moderate responsibility for the delay,” as he represented

¶422 27 at one point that he was not ready to proceed.

¶423 The record supports the trial court’s findings regarding the rea-

¶424sons for the delay, and under the circumstances of this case, we see

¶425no abuse in the trial court’s discretion in ruling that those reasons

¶426should be weighed against the State, but not heavily so. See Barker,

¶427407 U.S. at 531 (IV) (“A deliberate attempt to delay the trial in order

¶428to hamper the defense should be weighted heavily against the gov-

¶429ernment,” while an unintentional delay, such as that caused by the

¶430mere negligence of the prosecuting attorneys or the overcrowded

¶431docket of the trial court, “should be weighted less heavily.”). Accord

¶432Wilkie v. State, 290 Ga. 450, 452 (721 SE2d 830) (2012); Sweatman,

¶433287 Ga. at 875 (4); Hassel v. State, 284 Ga. 861, 862 (b) (672 SE2d

¶434627) (2009).

¶435 (c) The Assertion of the Right to a Speedy Trial

¶436 The trial court found that McCullum failed to raise the speedy

¶437trial issue until more than two years after his indictment and

¶438weighed this factor “against Defendant, but not heavily.” Neither

¶439party asserts that the trial court abused its discretion in so ruling,

¶440 28 and we see no abuse of discretion either. See Pickett, 288 Ga. at 676

¶441(2) (c) (3) (“[A] defendant may assert his constitutional right to a

¶442speedy trial at any time after he is arrested. . . . However, once his

¶443constitutional right accrues, the defendant has the responsibility to

¶444assert it, and delay in doing so normally will be weighed against

¶445him.”) (citations omitted).

¶446 (d) Prejudice

¶447 In assessing the prejudice of the delay to McCullum, the trial

¶448court considered the “oppressive pretrial incarceration, anxiety and

¶449concern of the accused, and the possibility that the accused’s defense

¶450will be impaired by dimming memories and loss of exculpatory evi-

¶451dence.” See Doggett, 505 U.S. at 654 (III) (A) (quoting Barker, 407

¶452U.S. at 532 (IV)) (punctuation omitted)). The trial court noted that

¶453this Court has recognized a “minimal possibility of oppressive pre-

¶454trial incarceration” when a defendant was incarcerated for a sepa-

¶455rate offense, see Williams v. State, 279 Ga. 106, 109 (1) (d) (610 SE2d

¶456 29 32) (2005) (punctuation omitted);11 that McCullum had presented no

¶457evidence that he experienced oppressive pretrial incarceration or

¶458undue stress or anxiety due to the pending Georgia rape charge; and

¶459that “[m]ost critically . . . the record contains no evidence nor any

¶460articulated prejudice to Defendant’s prospective defense likely to oc-

¶461cur at trial.” 12 Therefore, the court ruled that “[u]nder the unique

¶462 11 On this point, McCullum relies on Redding v. State, 313 Ga. 730 (873

¶463SE2d 158) (2022) (“Redding II”) to argue that the trial court abused its discretion in relying on McCullum’s incarceration on the North Carolina charges in finding no prejudice. But in Redding II, we held that the trial court erred in ruling that the defendant’s probation hold on other charges, which prevented him from making bond, precluded the need to assess prejudice associated with pretrial incarceration. See Redding II, 313 Ga. at 735-736 (2). Redding II did not overrule Williams or its recognition that the possibility of oppressive pretrial incarceration is generally minimal when a defendant is already incarcerated for unrelated offenses, so we see no abuse of the trial court’s discretion here, where the trial court plainly assessed this factor and whether McCullum provided any evidence thereon as part of its prejudice analysis. 12 In its 2019 order, which incorporated the factual findings and rulings

¶464of the 2017 order, the trial court noted that at the more recent hearing McCullum was permitted to provide additional evidence on prejudice. McCullum called an investigator from the public defender’s office who testified that he was able to locate a witness who was familiar with McCullum and C.C. but that the witness was hostile and did not wish to speak with him further. Our review shows that the witness whom the investigator referred to was Meeks, the owner and operator of the mechanic shop where McCullum worked and where he raped C.C. The investigator testified that “to my knowledge she was supposed to be able to testify or give me a statement about her seeing [McCullum] with the alleged victim two or three days after the alleged incident was supposed to have happened,” but that when he spoke with her in 2019, “she couldn’t recall specifically seeing him with her after the incident because she

¶465 30 circumstances of this case . . . this final factor is weighed heavily

¶466against Defendant.”

¶467 The record supports the trial court’s findings that McCullum

¶468failed to present sufficient evidence—and that the record otherwise

¶469lacked sufficient evidence—of prejudice under the fourth Barker-

¶470Doggett factor. Although we recognize that extraordinarily long pre-

¶471trial delays “simultaneously increase the degree of prejudice pre-

¶472sumed and decrease the expectation that the defendant can demon-

¶473strate tangible prejudice,” it remains true that “the passage of time

¶474is not alone sufficient to sustain a speedy trial claim.” Williams v.

¶475State, 277 Ga. 598, 601 (1) (d) (592 SE2d 848) (2004). Under the cir-

¶476cumstances of this case, the trial court did not abuse its discretion

¶477in weighing this factor against McCullum. See Williams v. State, 314

¶478Ga. 671, 680 (4) (d) (878 SE2d 553) (2022) (“[W]hile a presumption

¶479couldn’t recall the incident time with any specificity.” He added, “she seemed hostile. She didn’t want to be involved in any form or fashion, and so she was really short with me.” We see no abuse of discretion in the trial court’s conclusion that even in light of this evidence, “there is still no showing of specific prejudice by the defense.” 31 of prejudice always exists once the threshold of presumptive preju-

¶480dice is satisfied, the prejudice prong may be weighed against the de-

¶481fendant even in cases of excessive delay.” (citation and punctuation

¶482omitted)). See also Burney v. State, 309 Ga. 273, 286 (4) (a), 290-291

¶483(4) (d) (845 SE2d 625) (2020) (holding that the defendant failed to

¶484make the requisite showing of prejudice under the fourth Barker-

¶485Doggett factor despite presumptively prejudicial six-and-a-half-year

¶486delay). Cf. Williams, 279 Ga. at 109-110 (1) (d) (“We agree with the

¶487trial court that while the prejudice factor must not be weighed heav-

¶488ily against Williams, he has been unable to show any specific im-

¶489pairment to his defense attributable to the delay.”).

¶490 (e) Balancing the Factors

¶491 After making the above findings and conclusions, the trial

¶492court balanced the factors and denied the motion, noting that the

¶493length and reason for the delay weighed against the State, but not

¶494heavily; McCullum’s two-year delay in asserting his speedy-trial

¶495right weighed “slightly” against him; and the absence of prejudice

¶496 32 weighed “heavily” against McCullum, so on balance and in the ab-

¶497sence of any evidence “that the State delayed the case to hamper the

¶498defense or gain a tactical advantage,” the lengthy delay was “rea-

¶499sonable under the circumstances and in light of the complexity of

¶500the case.” The trial court’s detailed and reasoned denial orders show

¶501that it fulfilled its duty to weigh all four Barker-Doggett factors in

¶502the context of the particular circumstances of this case. See Jenkins

¶503v. State, 294 Ga. 506, 513 (2) (c) (755 SE2d 138) (2014). And under

¶504the circumstances of this case, we see no abuse in the trial court’s

¶505discretion in applying the Barker-Doggett framework and denying

¶506McCullum’s motions to dismiss Count 5 of the indictment for the

¶507violation of his constitutional right to a speedy trial. See id.

¶508 5. The Motion to Sever

¶509 McCullum finally contends that the trial court abused its dis-

¶510cretion by not severing Count 5 (rape of C.C.) from Counts 1-4 (rape

¶511and murder of Blackwell) because he had an “absolute right to sever”

¶512and the crimes against each woman were so dissimilar.

¶513 McCullum filed a pretrial motion to sever, which the trial court

¶514 33 denied after a hearing. As relevant here, the trial court ruled that

¶515“under OCGA § 24-4-413, the sexual assault of [C.C.] would clearly

¶516be admissible during the trial of the sexual assault and murder of

¶517Monica Blackwell.”

¶518 A defendant has an “absolute right” to severance when charges

¶519are joined together “solely because they are of the same or similar

¶520character,” while severance lies within the trial court’s discretion

¶521when joinder is based on “the same conduct or on a series of acts

¶522connected together or constituting parts of a single scheme or plan.”

¶523See Harris v. State, 314 Ga. 238, 281 (4) (875 SE2d 659) (2022) (ci-

¶524tations and punctuation omitted). But multiple offenses are not

¶525joined together “solely because they are the same or similar charac-

¶526ter” if evidence of one offense would be admissible at a separate trial

¶527for the other. See Carson v. State, 308 Ga. 761, 765 (2) (a) (843 SE2d

¶528421) (2020) (quoting Green v. State, 291 Ga. 287, 289 (2) (728 SE2d

¶529668) (2012)). Typically, a trial court does not abuse its discretion in

¶530denying a motion to sever where evidence of one charge would be

¶531admissible in the trial of the other and there is no evidence that the

¶532 34 joinder confused or misled the jury. See Carson, 308 Ga. at 765-766

¶533(2) (a); Heard v. State, 287 Ga. 554, 558-559 (4) (697 SE2d 811)

¶534(2010). Cf. Harris, 314 Ga. at 282 (4) (concluding the trial court

¶535abused its discretion in denying defendant’s motion to sever the

¶536counts charging the defendant with a sex crime against a minor from

¶537charges related to the death of the defendant’s son where the of-

¶538fenses were “of an entirely different character”).

¶539 McCullum concedes that, under OCGA § 24-4-413, the evidence

¶540of C.C.’s rape “might be admissible” during the trial of Blackwell’s

¶541rape and murder, and we agree with the trial court that the evidence

¶542of C.C.’s rape would have been admissible under Rule 413 at a trial

¶543for Blackwell’s rape and murder. See OCGA § 24-4-413 (a) (in any

¶544criminal proceeding where the defendant is accused of sexual as-

¶545sault, evidence that the defendant committed other sexual assaults

¶546is admissible for any relevant purpose). He also has not offered any

¶547evidence that the failure to sever his trial for C.C.’s rape from his

¶548 35 trial for Blackwell’s rape and murder confused or misled the jury.13

¶549See, e.g., Simmons v. State, 282 Ga. 183, 185-186 (4) (646 SE2d 55)

¶550(2007). Accordingly, we conclude that the trial court did not abuse

¶551its discretion in refusing to sever Count 5 (rape of C.C.) from Counts

¶5521-4 (rape and murder of Blackwell). See Carson, 308 Ga. at 765-766

¶553(2) (a); Heard, 287 Ga. at 558-559 (4).

¶554 Judgment affirmed. All the Justices concur, except Peterson, P.J., Bethel, and McMillian, JJ., who dissent in part.

¶555 13 McCullum concedes that the evidence of C.C.’s rape “might be admis-

¶556sible” under Rule 413 but contends that it should have been excluded under OCGA § 24-4-403 (Rule 403) because the probative value of the evidence of the sexual assault of C.C. did not substantially outweigh the prejudicial effect of McCullum “having to defend multiple trials within a trial.” But he has not pointed on appeal to any unfair prejudice that resulted from the introduction of this evidence. At most, he argues that evidence of C.C.’s rape should have been excluded because it tended to support the State’s theory that the presence of his semen in Blackwell’s vagina resulted from rape rather than his contention that he and Balckwell had consensual sex. But although “inculpatory evidence is inherently prejudicial in a criminal case,” the risk of some prejudice does not require exclusion. “[I]t is only when unfair prejudice substantially outweighs probative value that the rule permits exclusion.” See Harris v. State, 313 Ga. 225, 232 (3) (869 SE2d 461) (2022). Because McCullum has not made this showing, we conclude that the trial court did not abuse its discretion by failing to rule that evidence of C.C.’s rape should be excluded under Rule 403 and granting the motion to sever on that basis. See McWilliams v. State, 304 Ga. 502, 509-511 (3) (2018) (reviewing for an abuse of discretion the defendant’s claim that the admission of extrinsic evidence under OCGA §§ 24-4-404 (b) and 24-4-413 violated Rule 403 and concluding the probative value of the prior sexual assaults, which tended to disprove the defendant’s claim that the murder victim’s injuries were accidental, was not outweighed by the risk of unfair prejudice). See also Carson, 308 Ga. at 765-766 (2) (a); Heard, 287 Ga. at 558-559 (4). 36  MCMILLIAN, Justice, dissenting in part.

¶557 Under the well-established standard of Jackson v. Virginia,

¶558443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), this Court deter-

¶559mines whether evidence is sufficient as a matter of constitutional

¶560due process by examining whether “any rational trier of fact could

¶561have found the essential elements of the crime beyond a reasonable

¶562doubt.” Id. at 319 (III) (A) (emphasis in original). The United States

¶563Supreme Court has also recently indicated that, consistent with

¶564Jackson, sufficiency review under this legal standard may include

¶565something more than only looking at the elements of the crime:

¶566 Sufficiency review essentially addresses whether the government’s case was so lacking that it should not have even been submitted to the jury. On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a “meaningful opportunity to defend against the charge against him and a jury finding of guilt beyond a reasonable doubt.”

¶567Musacchio v. United States, 577 U.S. 237, 243 (II) (136 SCt 709, 193

¶568LE2d 639) (2016) (quoting Jackson, 443 U.S. at 314-15; other cita-

¶569tion and punctuation omitted).

¶570 37  Here, the State elected to allege in Count 1 of the indictment

¶571that in violation of OCGA § 16-5-1 (a), McCullum “did with malice

¶572aforethought cause the death of Monica Blackwell, a human being,

¶573by cocaine intoxication in a manner unknown to the Grand Jury and

¶574dumping her without medical assistance on the side of the road.”

¶575McCullum defended against this charge at trial by moving for a di-

¶576rected verdict of acquittal on the grounds that the State had failed

¶577to present any evidence to support the causation element alleged in

¶578the indictment—that McCullum had anything to do with drugging

¶579Blackwell. It is now clear from the record that the motion should

¶580have been granted. However, despite the lack of evidence supporting

¶581this causation allegation, the Court has now affirmed the malice

¶582murder conviction on sufficiency grounds on a different theory—that

¶583McCullum beat and raped Blackwell and left her by the side of the

¶584road to die—and has concluded that these facts sufficiently sup-

¶585ported the statutory elements of the crime of malice murder.

¶586 I have serious concerns about the due process implications of

¶587 38 such an approach. 14 Moreover, in addressing a different question re-

¶588lated to sufficiency analysis, the Musacchio Court left open several

¶589matters, including whether sufficiency should be evaluated based on

¶590what has been alleged in the indictment: “we express no view on the

¶591question whether sufficiency of the evidence at trial must be judged

¶592by reference to the elements charged in the indictment, even if the

¶593indictment charges one or more elements not required by statute.”

¶594Id. at 244, n.2. The Court has now decided to answer this difficult

¶595open question without analysis, relying on the “elements” language

¶596in the Jackson test. However, I would follow two lines of authority

¶597from our Court that have addressed similar sufficiency arguments

¶598but without deciding which line controls. Under either, I would re-

¶599verse the malice murder conviction and remand the case to the trial

¶600court to resentence on one of the felony murder convictions, which

¶601 14 Under the Court’s reasoning, the State could prosecute someone for

¶602malice murder by shooting and prove the case by any other means such as poisoning or stabbing, and the evidence would be sufficient as a matter of constitutional due process because the statutory elements of malice murder would be satisfied, notwithstanding that the defendant may have a separate claim based on a fatal variance theory. 39 had previously been vacated as a matter of law, and potentially on

¶603the rape conviction pertaining to Blackwell. For these reasons, I re-

¶604spectfully dissent in part to the Court’s opinion. 15

¶605 1. Count 1: Malice Murder

¶606 Relying on how the State alleged malice murder in the indict-

¶607ment, McCullum contends that the evidence was insufficient be-

¶608cause the State failed to produce any evidence that McCullum sup-

¶609plied or was in any way involved in Blackwell’s ingestion of the co-

¶610caine.16 The State argues that the other-acts evidence of McCullum’s

¶611attacks of women showed that McCullum would beat, restrain, or

¶612incapacitate his victims, 17 and since McCullum was seen with Black-

¶613well two days before she was found, the jury could have inferred that

¶614he used cocaine to incapacitate Blackwell. My review of the record

¶615shows that the only evidence presented at trial on this issue was Dr.

¶616 15 I fully concur in the remainder of the Court’s opinion. 16 The Court has rejected this argument, describing it as a “novel theory

¶617of sufficiency.” (Maj. Op. at 19 n.7.) However, as explained below, this type of sufficiency argument relying on the allegations of the indictment has been considered by our Court and federal appellate courts in multiple cases. 17 It does not appear from our record that McCullum drugged any of the

¶618other women he attacked. 40 Gowitt’s testimony that he did not have “any idea how the cocaine

¶619got in [Blackwell’s] system,” speculating that it could have been ei-

¶620ther voluntary or involuntary and that there was simply no way for

¶621him to know.18 And I would reject the State’s argument that a jury

¶622is authorized to infer from the other-acts evidence that McCullum

¶623used cocaine to incapacitate Blackwell, because that evidence,

¶624though bearing many similarities to Blackwell’s attack, did not in-

¶625volve drugging the victims. Thus, McCullum is correct that the evi-

¶626dence at trial did not show that he caused Blackwell’s cocaine intox-

¶627ication.

¶628 Although the Court asserts that such an approach to McCul-

¶629lum’s sufficiency claim is “novel” and an extension of Jackson, we

¶630have held in cases before and after Mussachio was issued that when

¶631the State elects to charge a crime under a particular theory of pros-

¶632ecution, “we cannot affirm a conviction based upon a legal theory of

¶633 18 I note that even if there was evidence that Blackwell’s cocaine intoxi-

¶634cation was involuntary, which would permit the jury to infer that she was murdered by involuntary or forced intoxication, that still would not authorize the jury to infer that McCullum was the person who intoxicated her, absent some evidence showing that it was him. 41 the crime with which the defendant was never charged.” Walker v.

¶635State, 296 Ga. 161, 167 n.12 (1) (c) (766 SE2d 28) (2014) (evidence

¶636not sufficient to support felony murder of child predicated on murder

¶637of mother when the State theorized that the murder of the mother

¶638caused the death of the child by being unable to come to the aid of

¶639the child when the defendant asphyxiated the child with his hand);

¶640see Harrington v. State, 300 Ga. 574, 577-78 (2) (a) (797 SE2d 107)

¶641(2017) (where indictment alleged that defendant committed armed

¶642robbery by “unlawfully taking a cell phone from the immediate pres-

¶643ence of [the victim], by use of a handgun,” the State was required to

¶644prove beyond a reasonable doubt that defendant used the handgun

¶645to take the cell phone prior to or contemporaneously with the taking

¶646(punctuation omitted)).19 Because the State presented no evidence

¶647 19 The Court distinguishes Harrington and Walker as sufficiency deci-

¶648sions that have looked to the indictment, “only to determine which crime was charged.” (Maj. Op. at 17.) While it is true that these cases looked at the indictment to determine which crime was charged, the analysis did not end there. Both cases looked at the specific allegations of the indictment and the manner in which essential elements of the crime were charged in order to evaluate sufficiency of the evidence. See Harrington, 300 Ga. at 577 (concluding that State failed to support that cell phone was taken from the "immediate presence" of the victim "by the use of a handgun" as alleged in the indictment); Walker, 296

¶649 42 linking McCullum to cocaine whatsoever, much less to the cocaine

¶650in Blackwell’s system, under this line of cases, the evidence is legally

¶651insufficient as a matter of constitutional due process to sustain

¶652McCullum’s conviction on Count 1, the malice murder of Blackwell,

¶653as charged in the indictment.

¶654 However, in other cases, this Court has reviewed similar chal-

¶655lenges, including a challenge to the sufficiency of the evidence, as in

¶656actuality a claim that the evidence at trial fatally varied from the

¶657allegations of the indictment. For example, in Lebis v. State, 302 Ga.

¶658750, 759-60 (II) (B) (808 SE2d 724) (2017), we noted that “Lebis

¶659raised sufficiency of the evidence rather than a ‘fatal variance’ be-

¶660tween the language of the indictment, which charged joint posses-

¶661sion, and the proof at trial,” yet the Court went on to analyze the

¶662claim as a fatal variance issue. Also, in Mathews v. State, 314 Ga.

¶663360, 365 (2) (877 SE2d 188) (2022), we summarized the appellant’s

¶664Ga. at 166 (holding that State failed to prove felony murder predicated on the felony alleged in the indictment even though the evidence supported a felonious assault on the victim that caused his death).

¶665 43 arguments “that the trial court erred in allowing the prosecution to

¶666deviate from the allegation in the indictment and offer proof that he

¶667committed the crimes in an uncharged manner” and “that the evi-

¶668dence at trial and the court’s instructions to the jury on party to a

¶669crime allowed him to be convicted for merely helping co-defendant

¶670Jackson, while the indictment specifically charged him with directly

¶671committing the crimes,” and then stated “[w]e interpret [his] argu-

¶672ment as raising [a] fatal variance [claim].” Id; see Brown v. State,

¶673307 Ga. 24, 27-28 (1) (834 SE2d 40) (2019) (summarizing test for

¶674fatal variance claim).

¶675 One difference between a fatal variance claim and a claim for

¶676insufficiency of the evidence is that a fatal variance claim is an error

¶677that must be asserted at trial and ruled upon to be preserved for

¶678appellate review. See Hughes v. State, 310 Ga. 453, 456 (2) n.5 (851

¶679SE2d 580) (2020); Eberhart v. State, 307 Ga. 254, 262 n.7 (2) (a) (835

¶680SE2d 192) (2019); Davis v. State, 301 Ga. 397, 402 (4) (801 SE2d 897)

¶681(2017). Compare Jeffries v. State, 272 Ga. 510, 512 (5) (530 SE2d

¶682714) (2000) (citing OCGA § 5-6-36 (a) to support that the defendant

¶683 44 “is simply incorrect that the failure to move for a directed verdict at

¶684the close of the evidence precludes [the defendant] from contending

¶685on appellate review that the evidence is insufficient to support the

¶686verdict”). Here, after the State rested, McCullum “move[d] for a di-

¶687rected verdict of acquittal as to Counts 1 through 4. That is the Mal-

¶688ice Murder, Count 1, of Monica Blackwell did cause the death by

¶689malice aforethought by cocaine intoxication and by dumping her

¶690without medical assistance. . . .” In making that argument, he never

¶691explicitly raised or argued the term “fatal variance,” but his argu-

¶692ment included, inter alia, that “[w]e have no evidence or testimony

¶693that Mr. McCullum in any way caused [Blackwell] or forced her, di-

¶694rected her to ingest cocaine. That was the cause of death.”20 The trial

¶695court ruled “I believe there is sufficient evidence to go to the jury. I

¶696would deny the motion to dismiss at this time, or a motion for direct

¶697verdict.”

¶698 Thus, if I were to analyze this claim as one asserting a fatal

¶699 20 McCullum’s primary argument for a directed verdict was that “there

¶700is essentially no evidence that he caused the death and raped her in Count 1 through 4.” 45 variance, the procedural posture of this claim would require consid-

¶701eration of whether the trial court erred in denying the motion for a

¶702directed verdict of acquittal on the malice murder count, even

¶703though McCullum did not enumerate as error the denial of his mo-

¶704tion for a directed verdict. See Adams v. State, 288 Ga. 695, 699 (2)

¶705(707 SE2d 359) (2011) (rejecting claim that trial court erred in deny-

¶706ing motion for directed verdict asserting that the State failed to

¶707prove that the offenses occurred within the dates alleged in the in-

¶708dictment); Felder v. State, 270 Ga. 641, 643 (2) (514 SE2d 416) (1999)

¶709(holding that trial court correctly denied motion for a directed ver-

¶710dict of acquittal when “the evidence is sufficient to show that the

¶711cigarettes were taken from the person of the victim as alleged in the

¶712indictment”). As explained above, the State failed to produce any ev-

¶713idence supporting that McCullum supplied or otherwise caused

¶714Blackwell’s cocaine intoxication. Accordingly, I would conclude that

¶715the trial court erred in denying the motion for a directed verdict. See

¶716Ellington v. State, 314 Ga. 335, 339 (2) (877 SE2d 221) (2022) (“The

¶717standard of review for the denial of a motion for a directed verdict of

¶718 46 acquittal is the same as for determining the sufficiency of the evi-

¶719dence to support the conviction.”) (citation omitted); Fitts v. State,

¶720312 Ga. 134, 141 (3) (859 SE2d 79) (2021) (explaining that “‘[t]he

¶721standard of review for the denial of a motion for a directed verdict of

¶722acquittal is the same as for determining the sufficiency of the evi-

¶723dence to support a conviction’”) (citation omitted).

¶724 Because McCullum moved for a directed verdict of acquittal on

¶725the malice murder charge on the same grounds that he now asserts

¶726on appeal and, as a result, under either line of cases, the malice mur-

¶727der conviction must be reversed, I would conclude that it is unnec-

¶728essary for this Court to determine whether his claim should be ana-

¶729lyzed as a challenge to the sufficiency of the evidence as a matter of

¶730constitutional due process or whether his claim is in actuality that

¶731the evidence at trial fatally varied from the allegation that McCul-

¶732lum caused Blackwell’s death by cocaine intoxication.

¶733 This approach is preferable for several reasons. First, it recog-

¶734nizes that although Mussachio referenced the familiar Jackson test

¶735 47 relying on the elements of the crime, it also went further and ex-

¶736plained what minimum due process requires in this context—“that

¶737a defendant receives . . . a meaningful opportunity to defend against

¶738the charge against him.” Musacchio, 577 U.S. at 243 (II). It is un-

¶739clear how this language is applied because Mussachio explicitly left

¶740open the question of whether the allegations of the indictment factor

¶741into the analysis, but it is difficult to discern how to evaluate “a

¶742meaningful opportunity to defend against the charge” without some

¶743reference to the allegations of the indictment.

¶744 Second, although this issue remains an open question that the

¶745United States Supreme Court has recognized but not decided, this

¶746Court has gone ahead and decided it. Yet, federal appellate courts

¶747who have considered the issue have declined to decide it, indicating

¶748that the answer is not as straightforward as the Court thinks it is.21

¶749Instead, in almost every one of those cases, the federal court has

¶750 21 Although not binding on us, the decisions of federal appellate courts

¶751are persuasive, particularly on matters of federal constitutional law. See Elliott v. State, 305 Ga. 179, 187 (II) (B) (824 SE2d 265) (2019) (“The construction of similar federal constitutional provisions, though persuasive authority, is not binding on this state’s construction of its own Constitution.”) (cleaned up). 48 assumed without deciding that the allegations of the indictment

¶752were essential in evaluating sufficiency.22 See United States v. Nau-

¶753shad, 68 F4th 380, 384 (II) (8th Cir. 2023) (recognizing that Musac-

¶754chio left open the question of whether sufficiency of the evidence

¶755must be judged by reference to non-statutory elements of the indict-

¶756ment and doubting that sufficiency review includes the non-statu-

¶757tory elements, but concluding that even assuming that the non-stat-

¶758utory element was essential, the government proved its case);

¶759United States v. Said, 2023 WL 167213, at *4 (V) (A) (1) (5th Cir.

¶760Jan. 12, 2023) (declining to resolve issue of “whether an erroneously

¶761heightened indictment obligates the government to prove additional

¶762elements,” but concluding that assuming that the government was

¶763required to prove the additional elements alleged, the government

¶764 22 The Tenth Circuit has noted that the question of whether sufficiency

¶765as a matter of constitutional due process should be evaluated with respect to the allegations in the indictment remains open, but in that case, the defendant had failed to preserve the error for ordinary appellate review, and the court concluded that the defendant failed to show plain error. See United States v. Brown, 654 Fed. Appx. 896, 907 (II) (2) (B) (1) (10th Cir. 2016) (noting that Musacchio left open the question of whether indictment’s reference to “cruel and unusual punishment” required the government to prove that the defendants were convicted inmates but concluding that defendants failed to show clear and obvious error under plain error review). 49 produced sufficient evidence) (citation and punctuation omitted);

¶766United States v. Bedoy, 827 F3d 495, 509 (II) (B) (1) (5th Cir. 2016)

¶767(Musacchio leaves open the question of “whether an indictment can

¶768add an element”; “assuming—without deciding—the Government

¶769had to prove this additional element,” the evidence was sufficient).

¶770 In addition, my review of decisions of state courts of last resort

¶771since Musacchio shows that this Court would be the first state su-

¶772preme court to recognize that Musacchio left open the question of

¶773whether sufficiency of the evidence at trial must be judged by refer-

¶774ence to the manner in which essential elements of the crime are

¶775charged in the indictment—in this case, causation by cocaine intox-

¶776ication—and go ahead and decide it. 23

¶777 23 One state court of last resort has considered a closely related issue.

¶778The Texas Criminal Court of Appeals has held that “[i]f a jury instruction includes the elements of the charged crime but incorrectly adds an extra, madeup element, a sufficiency challenge is still assessed against the elements of the charged crime, regardless of the source of the extra element.” Ramjattansingh v. State, 548 S.W.3d 540, 552 (IV) (2018). In so holding, the Texas court distinguished Musacchio as involving “actual statutory elements” and not “a madeup element” in the indictment. See id. at 546 n.13 (II) (A). Here, all Justices agree that causation is an essential element of malice murder although there is disagreement on whether the manner in which causation is alleged is part of the essential elements of the crime. 50  For these reasons, I conclude that it is unnecessary to decide

¶779this difficult open question of federal constitutional law. Instead, I

¶780would rely on the ample authority from our Court in evaluating

¶781McCullum’s sufficiency argument while finding it unnecessary to de-

¶782cide which line of authority controls and reverse McCullum’s convic-

¶783tion for malice murder.

¶784 2. Counts 2 and 3: Felony Murder

¶785 Because I would reverse the malice murder conviction, McCul-

¶786lum’s felony murder convictions would no longer stand vacated as a

¶787matter of law. See Clough v. State, 298 Ga. 594, 597-98 (2) (783 SE2d

¶788637) (2016); Wallace v. State, 275 Ga. 879, 881 (2) (572 SE2d 579)

¶789(2002), disapproved on other grounds by Willis v. State, 304 Ga. 686,

¶790706 (11) (a) n.3 (820 SE2d 640) (2018). Thus, I will also address his

¶791challenges to the sufficiency of the evidence to support those convic-

¶792tions as well. 24

¶793 24 In so doing, I note that in addition to arguing that the evidence to

¶794support these convictions was constitutionally insufficient, McCullum also cites OCGA § 24-14-6 and argues that the evidence was wholly circumstantial and does not exclude what he characterizes as the reasonable hypothesis that

¶795 51  Count 2 of the indictment alleges that McCullum caused the

¶796death of Blackwell “in the commission of the offense of rape, a fel-

¶797ony,” and Count 3 of the indictment alleges that he caused her death

¶798“in the commission of the offense of Aggravated Assault with the

¶799intent to Rape, a felony.” “A person commits the offense of murder,

¶800when, in the commission of a felony, he or she causes the death of

¶801another human being irrespective of malice.” OCGA § 16-5-1 (c). “A

¶802person commits the offense of rape when he has carnal knowledge

¶803of: . . . [a] female forcibly and against her will.” OCGA § 16-6-1 (a).

¶804And “[a] person commits the offense of aggravated assault when he

¶805. . . assaults: 25 [w]ith intent . . . to rape.”

¶806OCGA § 16-5-21 (a) (1).

¶807 Here, for felony murder predicated on rape, the State was re-

¶808quired to prove beyond a reasonable doubt that McCullum caused

¶809McCullum had consensual sex with Blackwell. See OCGA § 24-14-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). 25 An assault consists of the “[a]ttempt[] to commit a violent injury to the

¶810person of another” or the commission of “an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16- 5-20 (a). 52 Blackwell’s death in the commission of raping her and that the rape

¶811proximately caused Blackwell’s death. See Eubanks v. State, 317 Ga.

¶812563, 567-78 (2) (894 SE2d 27) (2023); State v. Jackson, 287 Ga. 646,

¶813660 (6) (697 SE2d 757) (2010). The State was likewise required to

¶814prove the same elements with respect to the felony murder predi-

¶815cated on aggravated assault with the intent to rape. Id. Proximate

¶816cause requires “that the death actually happened in a way that was

¶817a reasonably foreseeable result of the criminal conduct—that is, the

¶818death must also have been a probable or natural consequence of the

¶819criminal conduct.” Eubanks, 317 Ga. at 569 (2) (a) (ii) (cleaned up;

¶820emphasis in original). See also Jackson, 287 Ga. at 652 (2), 654 (3)

¶821(“Proximate causation imposes liability for the reasonably foreseea-

¶822ble results of criminal . . . conduct if there is no sufficient, independ-

¶823ent, and unforeseen intervening cause,” and proximate cause exists

¶824if the predicate felonious conduct “directly and materially contrib-

¶825uted to the happening of a subsequent accruing immediate cause of

¶826the death,” or if “the homicide was committed within the res gestae

¶827of the felony and is one of the incidental, probable consequences of

¶828 53 the execution of the design to commit” the predicate felony (citations

¶829and punctuation omitted)).

¶830 Viewed in the light most favorable to the jury’s verdict, the ev-

¶831idence presented at trial was constitutionally sufficient to authorize

¶832a jury to find beyond a reasonable doubt that McCullum assaulted

¶833and raped Blackwell and sufficient under Georgia statutory law to

¶834reject as unreasonable the hypothesis that Blackwell consented to

¶835having sex with McCullum. That evidence included that McCullum

¶836was the last person seen with Blackwell before she was found beaten

¶837up and dumped on the side of the road, half naked, and with his

¶838sperm in her vagina. See Johnson v. State, 307 Ga. 44, 48 (2) (a) (834

¶839SE2d 83) (2019) (circumstantial evidence, including that defendant

¶840was the last person seen with the victim before his death, was suffi-

¶841cient to support murder conviction); Lewis v. State, 306 Ga. 455, 457,

¶842459 (1) (a) (831 SE2d 771) (2019) (evidence which included that vic-

¶843tim’s body was discovered partially undressed, had defensive

¶844wounds, and had defendant’s sperm in her vagina was sufficient to

¶845sustain his convictions for murder and rape, and authorized jury to

¶846 54 reject his alternate hypothesis as unreasonable); Daniels v. State,

¶847298 Ga. 120, 123 (1) (779 SE2d 640) (2015) (evidence including the

¶848state in which victim’s body was discovered, DNA evidence linking

¶849defendant to victim, and evidence of prior similarly violent sexual

¶850conduct by defendant “were sufficient to support the jury’s conclu-

¶851sion that [defendant] assaulted, raped, and murdered [victim]”);

¶852Walker v. State, 282 Ga. 406, 408 (1) (651 SE2d 12) (2007) (evidence,

¶853which included the state in which victim’s body was discovered and

¶854DNA evidence linking defendant to victim, was sufficient to support

¶855jury’s conclusion that defendant raped and murdered victim, and

¶856authorized jury to reject defendant’s alternate hypotheses).

¶857 Moreover, the evidence was sufficient to authorize the jury to

¶858find beyond a reasonable doubt that the aggravated assault and/or

¶859rape proximately caused Blackwell’s death. Because there is nothing

¶860improbable or unnatural about a death occurring as the result of a

¶861violent beating and sexual assault that ended with the victim being

¶862left for dead, Blackwell’s death was a reasonably foreseeable result

¶863of the aggravated assault and rape. To that end, Dr. Gowitt testified

¶864 55 that any beating and rape sustained by Blackwell “absolutely” con-

¶865tributed to her death. That Dr. Gowitt listed Blackwell’s ultimate

¶866cause of death as acute cocaine intoxication does not change the con-

¶867clusion that McCullum’s assault and rape of Blackwell proximately

¶868caused her death because evidence was presented that showed that

¶869the beating and rape by McCullum, along with his dumping of her

¶870on the roadside without medical assistance, materially contributed

¶871to and accelerated her death, which is sufficient to show that McCul-

¶872lum’s felonious conduct caused her death. See Stribling v. State, 304

¶873Ga. 250, 253-54 (1) (818 SE2d 563) (2018); see also Virger v. State,

¶874305 Ga. 281, 289 (3) (824 SE2d 346) (2019) (evidence sufficient for

¶875jury to find that by allowing victim to suffer rather than promptly

¶876seeking medical aid, defendant proximately caused victim’s death).

¶877 In sum, I would conclude that the evidence presented at trial

¶878was constitutionally sufficient to authorize the jury to find beyond a

¶879reasonable doubt that McCullum caused Blackwell’s death in the

¶880commission of his assault and rape of her and was therefore guilty

¶881of Count 2, felony murder predicated on rape, and Count 3, felony

¶882 56 murder predicated on aggravated assault with intent to rape. Be-

¶883cause, as discussed above, Counts 2 and 3 would no longer be va-

¶884cated by operation of law and the evidence would be constitutionally

¶885sufficient to support those charges, I would vacate that portion of

¶886the trial court’s final disposition that had vacated Counts 2 and 3 as

¶887a matter of law and remand this case for sentencing in accordance

¶888with the law. In so doing, I would remind the trial court that alt-

¶889hough McCullum was found guilty on both counts of felony murder,

¶890one predicated on his rape of Blackwell and the other on his aggra-

¶891vated assault of her, he cannot be sentenced on both those counts

¶892because there was only one victim. See Noel v. State, 297 Ga. 698,

¶893700 (2) (777 SE2d 449) (2015) (“[A] defendant found guilty of the

¶894felony murder of the same victim through the commission of more

¶895than one felony may only be sentenced on one felony murder charge

¶896and the remaining felony murder charges stand vacated by opera-

¶897tion of law.”); Warren v. State, 283 Ga. 42, 44 (4) n.2 (656 SE2d 803)

¶898(2008) (same). Moreover, “[i]n cases like this one, where a defendant

¶899is found guilty on multiple counts of felony murder against the same

¶900 57 victim, the decision as to which of the felony murder verdicts should

¶901be deemed vacated—a decision that may affect which other verdicts

¶902merge and thus what other sentences may be imposed–is left to the

¶903discretion of the trial court.” Hinton v. State, 304 Ga. 605, 608 (3)

¶904(820 SE2d 712) (2018) (citation and punctuation omitted); see also

¶905Cowart v. State, 294 Ga. 333, 336 (2) (751 SE2d 399) (2013).

¶906 3. Count 4: Rape of Blackwell.

¶907 As the above discussion makes clear, the evidence presented at

¶908trial authorized the jury to find McCullum guilty beyond a reasona-

¶909ble doubt of raping Blackwell. Nonetheless, the trial court would

¶910have the discretion to decide which felony murder verdict it would

¶911enter a conviction and sentence upon and which one would be va-

¶912cated by operation of law, and that decision “may affect which other

¶913verdicts merge and thus what other sentences may be imposed.”

¶914Hinton, 304 Ga. at 608 (3) (citation and punctuation omitted).

¶915 [I]f, in exercising that discretion, the trial court elects to sentence the defendant on a felony murder count predicated on one crime, then it must also sentence him on any remaining crime that served as a predicate to a vacated felony murder count when the other crime does not merge

¶916 58  with the felony murder conviction on which a sentence was entered.

¶917Id. at 608-09 (3); see also Davis v. State, 301 Ga. 397, 404 (5) n.7 (801

¶918SE2d 897) (2017); Stewart v. State, 299 Ga. 622, 627-28 (3) (791

¶919SE2d 61) (2016); Leeks v. State, 296 Ga. 515, 523-24 (7) (769 SE2d

¶920296) (2015). Cf. Steele v. State, 317 Ga. 411, 414 (2) (893 SE2d 721)

¶921(2023) (“When the only murder conviction is for felony murder and

¶922a defendant is convicted of both felony murder and the predicate fel-

¶923ony of the felony murder charge, the conviction for the predicate fel-

¶924ony merges into the felony murder conviction.” (citation and punc-

¶925tuation omitted)). See also OCGA § 16-1-7 (a) (1) (“When the same

¶926conduct of an accused may establish the commission of more than

¶927one crime,” the accused may not “be convicted of more than one

¶928crime if . . . [o]ne crime is included in the other[.]”).

¶929 Because the trial court would have the discretion to decide

¶930whether to enter a conviction and sentence on Count 2 (felony mur-

¶931der predicated on rape) or on Count 3 (felony murder predicated on

¶932aggravated assault with intent to rape), and because that decision

¶933 59 will impact the merger analysis on Count 4 (rape), I would also va-

¶934cate the conviction and sentence on Count 4 for the trial court to

¶935consider on remand the proper final disposition of Count 4 in light

¶936of its sentencing decision on the felony murder counts. 26 See Parrott

¶937v. State, 312 Ga. 580, 583 n.4 (3) (864 SE2d 80) (2021) (explaining

¶938that in similar cases, we have declined to establish “a policy of ap-

¶939pellate sentencing” and that we instead remand them for trial courts

¶940“to exercise [their] discretion in resentencing” (citation and punctu-

¶941ation omitted)); Noel, 297 Ga. at 700 (2) (remanding for resentenc-

¶942ing, and reminding the trial court that “on resentencing, a legal con-

¶943viction may be entered on only one felony murder verdict, [that] the

¶944underlying felony charged in that count will merge into the felony

¶945murder conviction as a matter of law” depending on which felony

¶946murder conviction was entered, that “the remaining felony murder

¶947 26 The law is clear that if the trial court were to elect to enter a conviction

¶948and sentence on felony murder predicated on rape, the rape conviction would merge. However, if the trial court were to elect to sentence McCullum on felony murder based on aggravated assault with the intent to rape, the trial court would need to consider whether the rape count would merge into that felony murder conviction. 60 verdicts will stand vacated by operation of law, and [that] a deter-

¶949mination whether the remaining non-murder felonies merge as a

¶950matter of fact into the felony murder conviction will need to be

¶951made”).

¶952 In summary, therefore, I would reverse McCullum’s malice

¶953murder conviction (Count 1), and, as a result, vacate the trial court’s

¶954judgment on Counts 2, 3, and 4, for which the evidence was consti-

¶955tutionally sufficient to support convictions, and remand the case for

¶956resentencing on those counts.

¶957 I am authorized to state that Presiding Justice Peterson and

¶958Justice Bethel join in this dissent.

¶959 61