Moore v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: August 9, 2022
S22A0583. MOORE v. THE STATE.
COLVIN, Justice.
Nikita Moore appeals her conviction for malice murder arising
out of the 2010 death of her two-year-old son, Ma’Kel Moore-
Tompkins. 1 On appeal, Moore claims that the circumstantial
The death occurred on December 10, 2010. On April 29, 2011, a Fulton
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County grand jury indicted Moore and her boyfriend, Reginald Johnson, on
charges of malice murder (Count 1), felony murder predicated on aggravated
assault (Count 2), felony murder predicated on cruelty to children in the first
degree (Count 3), felony murder predicated on aggravated battery (Count 4),
aggravated assault (Count 5), aggravated battery (Count 6), and two counts of
cruelty to children in the first degree (Counts 7 and 8). Moore was also indicted
for felony murder predicated on cruelty to children in the second degree (Count
9) and cruelty to children in the second degree (Count 10).
Moore and Johnson were jointly tried before a jury from August 13 to 21,
2012. The jury found Moore and Johnson guilty as charged. The trial court
sentenced both defendants to serve life in prison with the possibility of parole
for Count 1 and 15 years concurrent for Count 8. The court merged for
sentencing purposes or vacated by operation of law the remaining counts. See
Malcolm v. State, 263 Ga. 369, 372-374 (4), (5) (434 SE2d 479) (1993). See also
Dixon v. State, 302 Ga. 691, 697-698 (4) (808 SE2d 696) (2017). Moore filed a
motion for new trial on September 20, 2012, and amended the motion on
August 20, 2020. After conducting a hearing on May 17, 2021, the trial court
evidence presented at trial was insufficient to support her murder
conviction because it failed to exclude every reasonable hypothesis
other than her guilt. 2 For the reasons that follow, we affirm.
Construed in the light most favorable to the jury’s verdicts, see
Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013), the evidence
presented at trial showed that, in the latter half of 2010, Moore and
her boyfriend, Reginald Johnson lived together with Ma’Kel. Moore
worked day shifts at a Sonic restaurant, and Johnson worked night
shifts at a McDonald’s. When one adult was at work, the other had
exclusive control over Ma’Kel.
Ma’Kel was in the process of being potty trained, and when he
soiled his diaper, Moore would strike him with a belt or her hand.
Moore allowed Johnson to do the same. On several occasions, the
couple’s disciplinary practices caused Ma’Kel to have bruises and
other visible injuries.
denied the motion for new trial on November 4, 2021. The case was docketed
to this Court’s April 2022 term and submitted for a decision on the briefs.
2 Moore does not raise any challenge to her conviction for cruelty to
children in the first degree.
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Moore testified that on December 8, 2010, Ma’Kel seemed
healthy and ate and drank normally that evening. Moore woke up
to get ready for work at around 4:30 a.m. the next morning, and
Johnson returned home while she was in the shower. Moore dressed
Ma’Kel and placed him in the car so that Johnson could drive her to
work at about 5:30 a.m. After arriving at Sonic, Moore mentioned
to her coworker, Linda Carpenter, that her son was not feeling well
and was having a hard time waking up that morning.
In his statements to police, Johnson said that when he arrived
back at home with Ma’Kel, he noticed that Ma’Kel had wet his
diaper. When he questioned Ma’Kel about the soiled diaper, Ma’Kel
walked over to Johnson to give him a hug, as if to apologize. Johnson
then decided to give Ma’Kel a shower, but he could not let go of
Ma’Kel in the shower because his legs were limp. While trying to
dry Ma’Kel, Johnson noticed that the back of his head was swollen.
Johnson called Moore at work to ask what was wrong with Ma’Kel,
saying that he was acting strangely and was unresponsive. Moore
instructed Johnson to bring Ma’Kel back to Sonic so she could check
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on him.
When Johnson arrived, Moore observed Ma’Kel sleeping in the
car seat with his head to the side. Moore tried waking Ma’Kel by
opening his eyes and “hitting him on his face,” but those attempts
did not work. Johnson prompted her to “feel the back of [Ma’Kel’s]
head,” and she noticed that it “fe[lt] funny.” Carpenter came out of
the restaurant with a wet rag to try to awaken Ma’Kel, but he
remained unresponsive. Moore noticed that Ma’Kel was
“breath[ing] funny,” as if he had asthma. Carpenter encouraged
Moore to take Ma’Kel to the hospital. Before leaving, Moore called
her manager because two people were required to be at the
restaurant at all times. Moore and Johnson waited for the manager
to arrive, and, by the time the manager got there, Ma’Kel had been
sitting in the parking lot for approximately 30 to 40 minutes.
During that period, no one called for an ambulance.
Moore told Johnson to drive her back to their apartment. At
the apartment, Moore got Ma’Kel’s Medicaid card and changed her
shirt because she “didn’t want to walk around in [her] work clothes
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and stuff.” Johnson then drove them to a hospital in south Fulton
County. On the way to the hospital, Moore noticed that Ma’Kel’s
mouth was “foaming,” and his breathing became more labored. They
arrived at the hospital at around 7:30 a.m., and a doctor who
examined Ma’Kel observed multiple bruises on and around Ma’Kel’s
head, which appeared to have been caused within the prior 24 hours.
The doctor ordered a battery of tests and found a significant
skull fracture, bleeding beneath the scalp and skull, and bruising in
the brain. Moore told the doctor that Ma’Kel had hit his head the
previous day “after falling due to potty-training concerns” but that
he seemed normal afterward. Because this account did not explain
the extent of Ma’Kel’s injuries, the doctor grew concerned about
potential abuse and called the police. The doctor also informed
Moore and Johnson that Ma’Kel would need to be flown to Children’s
Healthcare of Atlanta, Egleston Hospital. The doctor said that
Moore seemed “nonchalant” and Johnson appeared “indifferent”
when they heard this news.
At Egleston Hospital, Ma’Kel was observed to have multiple
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bruises on his head and torso, as well as an indentation on the back
of his skull line. His temperature was 91 degrees, and he was taking
seven to eight breaths per minute instead of the normal 25 to 30. A
social worker from the hospital concluded that Ma’Kel’s injuries
were consistent with “non-accidental trauma.” At around 11:00
a.m., a doctor evaluated Ma’Kel and found him to be “nearly brain
dead” from head trauma, which he concluded was likely inflicted “at
least 12 hours” before he received a CT scan at the previous hospital.
The doctor said that the amount of force used to cause the injury was
equivalent to a fall onto concrete from a one-to-two story height and
that a child would not have been able to act normally after such an
injury.
Moore told police officers at Egleston Hospital that Ma’Kel may
have fallen two days prior but then suggested a few minutes later
that he may have fallen that morning. Johnson offered that the
injuries may have occurred while Ma’Kel did somersaults, and
Moore added that Ma’Kel may have scraped his head on a wall while
sleeping. Moore later admitted that, on December 7 or 8, Ma’Kel fell
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while she was spanking him with a belt and the buckle hit his head,
causing a mark. She also stated that, a week or so earlier, Ma’Kel
had fallen off a chair in the kitchen, hitting his head as he fell into
the wall and a table.
Ma’Kel died on December 10, and when Moore saw Ma’Kel’s
biological father, Maricus Tompkins, at the hospital, she told him,
“Don’t worry about [Ma’Kel’s death], move on, life will be ok.”
Tompkins testified that Moore also began posting on her social
media about wanting to go out to clubs and move on with her life.
The medical examiner concluded that the cause of death was
blunt-force trauma. The medical examiner also found multiple
bruises internal to the scalp, including a square bruise similar in
shape to a belt-buckle-shaped injury found on Ma’Kel’s buttocks.
The combined testimony from the doctors who treated Ma’Kel
established an approximate timeframe for the injury as being
between about 7:30 a.m. and 7:30 p.m. on December 8. On that day,
Johnson was alone with Ma’Kel until Moore finished her shift
sometime between noon and 2:00 p.m., and Moore was alone with
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Ma’Kel after 2:00 or 2:30 p.m., when Johnson went to work.
On appeal, Moore argues that the circumstantial evidence
presented at trial failed to exclude the reasonable hypothesis that
Johnson was solely responsible for Ma’Kel’s death. Accordingly, she
contends that the evidence was insufficient to support the
requirement of former OCGA § 24-4-6 that circumstantial evidence
“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.”3 We disagree.
“The fact that the evidence of guilt was circumstantial does not
render it insufficient.” Anglin v. State, 312 Ga. 503, 506-507 (1) (863
SE2d 148) (2021) (citation and punctuation omitted). Although
circumstantial evidence must “exclude every other reasonable
hypothesis save that of the guilt of the accused,” “[n]ot every
hypothesis is reasonable.” Id. (citations and punctuation omitted).
“[I]t is for the jury to determine whether an alternative hypothesis
3 Moore was tried under the former Evidence Code. A provision identical
to former OCGA § 24-4-6 appears in OCGA § 24-14-6 of the current Evidence
Code. See Tyler v. State, 311 Ga. 727, 731 n.3 (2) (859 SE2d 73) (2021).
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passes muster,” and we will not disturb a jury’s finding that an
alternative hypothesis was not reasonable “unless it is
insupportable as a matter of law.” Id. Further, “[i]t is the role of the
jury to resolve conflicts in the evidence and to determine the
credibility of witnesses.” Graham v. State, 301 Ga. 675, 677 (1) (804
SE2d 113) (2017) (citation and punctuation omitted). Accordingly,
“the resolution of such conflicts adversely to the defendant does not
render the evidence insufficient.” Id. (citation and punctuation
omitted).
Here, the evidence was sufficient to enable the jury to reject as
unreasonable the alternative hypothesis that Johnson alone was
responsible for inflicting the blunt force trauma that led to Ma’Kel’s
death. By Moore’s own admissions, Ma’Kel suffered several head
injuries either as a result of her own discipline or when he was under
her exclusive supervision. Although Moore downplayed the injuries
Ma’Kel received while in her care, the jury was entitled to discredit
her testimony and statements about the timing, extent, and cause
of those injuries and find that Moore inflicted the fatal injury during
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the window of time in which medical experts estimated the blunt-
force trauma occurred. See Wilkerson v. State, 307 Ga. 574, 574 (837
SE2d 300) (2019) (noting that we defer to the jury’s resolution of
conflicting evidence, the credibility of witnesses, and the weight of
the evidence). This is particularly true given Moore’s apparent
indifference to Ma’Kel’s health, as exhibited by her multiple delays
in getting him to the hospital, apparent “nonchalan[ce]” when told
Ma’Kel’s serious medical condition required his transfer to another
hospital, and inconsistent accounts of how Ma’Kel might have been
injured. Because the jury was authorized to find that it was
unreasonable to believe that Moore played no role in causing
Ma’Kel’s death, former OCGA § 24-4-6’s requirement that
circumstantial evidence exclude every reasonable hypothesis except
that of Moore’s guilt was satisfied.
Judgment affirmed. All the Justices concur.
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