Cortney Bell v. State

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
February 18, 2022
In the Court of Appeals of Georgia
A21A1215. BELL v. THE STATE.
MERCIER, Judge.
A jury found Cortney Bell guilty of murder in the second degree, cruelty to
children in the second degree, and felony contributing to the dependency of a minor,
in the death of her two-week-old daughter.1 The trial court denied Bell’s motion for
new trial, and she now appeals, asserting that the evidence was insufficient to support
the verdicts. For the following reasons, we conclude that the evidence was
insufficient as to second-degree murder and second-degree cruelty to children.
However, we find the evidence sufficient to sustain Bell’s felony conviction for
1
Bell was jointly tried with the victim’s father, Christopher McNabb. The jury
found McNabb guilty of malice murder and other crimes in the death of the victim.
His appeal is currently pending in the Georgia Supreme Court. See Case No.
S22A0031.
contributing to the dependency of a minor. Accordingly, we affirm the judgment in
part and reverse it in part.
The evidence, viewed in support of the jury verdict, showed that Bell lived in
a mobile home park in a trailer rented for her by her father. Approximately three
weeks after Bell moved into the home, her boyfriend Christopher McNabb moved in
with her. On September 23, 2017, Bell gave birth to the victim without any
complications, although the victim was born a few weeks preterm. The victim was
discharged from the hospital four days later. McNabb was the victim’s father and the
father of the victim’s two-year-old sister C. M.
On October 1, 2017, when the victim was eight days old, Bell left the victim
and C. M. at the home of her cousin Megan Sorrells, along with a diaper bag. Sorrells
explained that Bell always had bruises on her and that there was “some violence
going on between” Bell and McNabb. She explained further that Bell knew the
children would be safe with her, “out of the chaos and the argument,” and away from
Bell and McNabb’s drug use.
Two days later, however, on October 3, Sorrells told her mother she was “tired
with all the kids, with her four [children] and [the victim and C. M.],” and her mother
contacted Bell’s father (hereinafter, “the grandfather”). The grandfather went to pick
2
the girls up from Sorrells because Sorrells had four children of her own and did not
need the burden “of trying to look after two more babies.” When he arrived, he put
C. M. in his car and told Sorrells he would be back for the victim. The grandfather
explained that he then went to Bell’s home to retrieve a car he had lent her because
he was told that Bell and McNabb were “doing drugs . . . heavy drugs,” but when he
arrived, McNabb “took off running up the hill,” and Bell took C. M. out of his car.
The grandfather then went back to Sorrells’ home to retrieve the victim.
Bell and McNabb told the grandfather that they were going to have him
arrested for taking the victim. The grandfather called 911 to report that he was taking
the victim and keeping her with him because Bell and McNabb had abandoned the
children. At trial, he explained that he was concerned for the children’s welfare and
that Bell and McNabb were using methamphetamine. The 911 dispatcher told the
grandfather that officers were at Bell’s home.
Bell had also called 911 and reported that the grandfather had taken the
children without her permission. The deputy who arrived at Bell’s home in response
to the call told Bell to allow the grandfather to keep the victim for a while to “let
things cool off,” and that as long as the victim was safe, there was no reason to bring
her back. Bell also complained to the deputy that the grandfather had picked up the
3
car he lent to Bell and would not return it. Both Bell and McNabb asked the
grandfather to return the car in exchange for him having the children. The deputy
noticed that Bell had a fresh black eye, and when he asked Bell about it, she refused
to “tell [him] where she got it from.” At some point, Sorrells’ mother took C. M. back
to her grandfather.
Two days later, on October 5, 2017, the grandfather picked Bell up and took
her to his home so that she could see the children. He took her back home later that
day. The grandfather told Bell “that she needed to clean the house up and get the
house in order before [he] would bring the babies back.” He explained that there were
“clothes here and clothes there and dishes in the sink” at Bell’s home, but that she
“cleaned up the trailer” by Friday afternoon, October 6. The grandfather took the
children back to Bell’s home that day around noon, and he supplied Bell with “milk
and diapers.” He testified that when he returned the children, there were no injuries
to the victim’s body, head, or face, and that he had never seen any signs of abuse on
either the victim or her sister. When the grandfather arrived at Bell’s home, McNabb
was hiding behind a tree. He explained that he and McNabb “never got along much,”
and that McNabb would avoid him when he came to Bell’s home.
4
On October 6, the same day the grandfather returned the children to Bell,
another one of Bell’s cousins, Craig Weatherford, arrived at her home around 8:00
p.m. to smoke methamphetamine with Bell and McNabb. Weatherford stayed only for
about 15 minutes and saw that the victim was in the back bedroom in her bassinet. He
stated that he went into the bedroom to see the victim and that while he was looking
at her, Bell and McNabb came “back there and they [were] being loud and I was like
y’all be quiet and that was it and I left.”
On the morning of October 7, around 9:30 a.m., the grandfather received a call
from Bell telling him that the victim was missing and asking him if he had the victim.
The grandfather told Bell that he did not have the victim and to call 911. Bell also
contacted her friend Melissa Davis around 10:00 a.m., sending her a text message that
“the baby is gone.” Davis went to Bell’s home and found McNabb standing on the
porch. McNabb told Davis “they’re going to think I did this. . . . the baby is gone.”
Davis told McNabb to “calm down” and helped Bell “look[ ] up under clothes and
stuff” for the victim. Davis “asked [Bell] had she called the police yet and she said
no. And I just felt like something wasn’t right . . . and I left.” At 10:38 a.m., as Davis
was leaving, Bell called 911. She told the dispatcher:
5
I just woke up. My daughter woke me up on the couch. Um, I have a
two-year-old and I have a two-week-old, and my two-week-old is not in
her [bassinet]. Her paci is on the floor. . . . She’s not in her [bassinet].
She’s not here. I’ve looked everywhere. I’ve looked under clothes and
everything. . . . My child said – my two-year-old said she’s gone. And
I’ve looked everywhere in the house[.]
The dispatcher asked Bell, “You and the dad both were asleep and/or he just came
back home?,” to which Bell responded,
No, me and him woke up together. [C. M.] woke us up together . . .
[a]nd she was kind of freaked out. I mean, it – I don’t – I don’t know,
because she was just standing there beside the couch in the corner. And
I told her, come here. And I loved on her, and then I told my baby’s dad
to go check on [the victim]. And then he’s talking about she’s not here,
she’s not in here.
Bell explained further that the last time she was with the victim was at 5:00 a.m. and
that McNabb had just left to look for the child.
Deputies arrived at Bell’s home at around 10:58 a.m. The grandfather arrived
soon after and joined others in looking for the victim. Bell told deputies that McNabb
received a text message from his father around 9:30 a.m. and “at that time, the
children were okay.” She explained that around 10:30 a.m., C. M. “woke her up upset
6
and said Sissy gone.” Bell said that she had last seen the victim when she and
McNabb fed her around 5:00 a.m.
One of the deputies noted, and body camera video shows, that Bell would be
“calm, collected, and then as she began describing what happened to the [victim], .
. . she’d start to panic a little bit and then she would go right back down to being calm
and collected.” Bell told the deputy that McNabb “was out looking for the [victim]”
in a wooded area near the home. The deputy and other law enforcement officers who
had arrived on the scene searched both the inside of the home and the surrounding
area outside, and they noted that there were no signs of forced entry into the home.
They also noted that there were no signs of “any type of trauma” in the bedroom
where the victim and C. M. had been sleeping. A neighbor told one of the deputies
that she noticed the door of Bell’s home was open “all morning . . . for at least a
couple of hours,” and that she saw someone come out onto the porch and then go
back inside.
Approximately 20-30 minutes later, McNabb appeared coming from the
direction of a nearby highway. He was “soaking wet” with muddy feet, had “green
stuff” on him from walking in the woods, and was extremely nervous. McNabb told
a deputy that he had gone into the woods to look for the victim. One of the deputies
7
noticed that McNabb was “fidgeting, like going in and out his pockets, looking . . .
left, looking right.” McNabb pulled out a flashlight, indicating that he had used it
while looking for the victim, even though it had been daylight since about 7:40 a.m.
Additional officers and investigators, as well as K-9 units, were called to the
trailer park to help search for the victim, to no avail. Law enforcement officers
remained at the scene until around 9:00 p.m. and then called off the search for the
day.
Bell and McNabb were separately transported to the sheriff’s office and
separately interviewed after being advised of their Miranda rights. They were not
placed under arrest and voluntarily gave statements to police.
Bell told investigators that the night before, the victim and C. M. slept in the
bedroom while she and McNabb slept in the living room on the couch. She stated that
the victim woke up at 5:00 a.m., and that she and McNabb got up and changed the
victim’s diaper, fed her, and then dressed her in a purple “onesie” and orange and
blue pajamas. Bell explained that she went back to the living room while McNabb put
the victim in her bassinet, and that she and McNabb then fell asleep on the living
room couch. Bell stated that while she was still asleep, McNabb woke up around 9:30
a.m. when he received a text message from his father. He then “checked on both
8
babies, and they were there,” went back to sleep, and around 10:15 or 10:20 a.m., C.
M. woke both of them up “acting weird” and “whining.” When she asked C. M.
“where’s [the victim]; [C. M.] said, gone.” McNabb then went to the bedroom and
told Bell that the victim was not there. Bell first thought that C. M. moved the victim
as she had done several times before, “[b]ut after looking, [she] couldn’t find [the
victim] anywhere.” Bell said she noticed that a plastic storage bin containing clothes
had been moved from beside the victim’s bassinet to the bed. She explained further
that the orange and blue pajamas she had dressed the victim in over her purple onesie
were in the bathroom and that she assumed that “maybe [the victim] was hot . . . so
[McNabb] took [the pajamas] off.”
Bell explained to investigators that she had not found the blue blanket that was
inside the victim’s bassinet and that the victim’s pacifier was on the floor. She told
them that she and McNabb looked everywhere in the home for the victim and
McNabb “ran around the trailer. He looked up under the trailer. Then he said he was
going to stroll the neighborhood and see if he could find anything of her or . . .
anything that would give him an idea of where she was.” After looking all over the
home, she called Davis and the grandfather. Bell was uncertain whether the doors to
the home had been locked. She told investigators that she did not know anyone who
9
would have taken the victim, but explained that McNabb “got into a fight with a dude
like a month and a half ago” and that they had someone break into their home through
a window. Bell also explained that about a week prior, she had a physical altercation
with a woman with whom McNabb had been intimate. She claimed that she and
McNabb were “not on drugs,” she had not smoked marijuana in six weeks, and the
“last time [she] did meth was over three years ago.” Bell explained that she left the
victim and C. M. at Sorrells’ home because she “needed a mommy break.”
In his interview with investigators, McNabb stated that around 9:30 a.m. that
morning, he woke up because he received a text message from his father concerning
money to pay rent. He explained that he then went back to check on the children and
they were both asleep. McNabb stated that he went back to sleep and then woke to
Bell asking C. M. “what’s wrong, baby, what’s wrong.” He explained that Bell told
him to go check on the victim, and that when he “got halfway down the hallway” he
realized that the victim was not in her bassinet. He first thought C. M. had picked the
victim up because C. M. had a “bad habit of picking her up and . . . trying to carry her
around,” but then he realized that the victim was not in the room. McNabb explained
further that he and Bell then “started tearing the house up . . . looking for [the
victim].” He went outside while still in his underwear to look around and under the
10
trailer. At some point, McNabb put on clothes and continued to search the home for
the victim. He stated that he told Bell that he was going out to look for her because
he “figured . . . if somebody would have got her walking, they would have [gone]
through the woods.” McNabb stated that he did not know anyone who would take the
victim, but that someone named Mathew Lester was the only person who would feel
any ill will toward him because he had an altercation with Lester in September, the
same altercation Bell mentioned in her statement to investigators.2 McNabb also
noticed that the plastic storage bin that was next to the victim’s bassinet had been
moved to the bed. When asked when was the last time he and Bell has used drugs,
McNabb stated that Bell had not used drugs in almost three years and that he smoked
marijuana two weeks prior.
At the end of their interviews, Bell and McNabb were placed in a room
together, and the following colloquy took place:
McNabb: I love you.
Bell: . . . She’s no where in the house.
2
The State admitted evidence that Lester was in jail from October 2 to October
17, 2017.
11
...
Bell: They searched the house with dogs and she’s never there. They got
cadaver dogs in the woods, and they still can’t find her.
McNabb: Shhhhhh. I love you.
Bell: I love you too.
McNabb: It’s ok.
Bell: It’s not ok.
McNabb: We’re gonna to find her. We’re gonna find her.
...
McNabb: He asked me – He was asking if you asked me anytime this
morning . . . did I have anything to do with it. I told him you asked me.
Bell: I told him I asked you, because they were asking me if you had
something to do with it. I told them you didn’t.
McNabb: . . . He was trying to make it some kind of accident like when
it happened like one of the[ ] [bins] falling on her or something. And he
asked me if I thought that you would, if I thought you had some kind of
accident or whatever; and I said if she did have an accident, if she would
12
have had an accident, she would have never hid it. She would have
known.
...
McNabb: She would have known it was an accident.
...
Bell: I just don’t know what to think right now. She’s gone. She just
f[***]ing disappeared.
McNabb: . . . I didn’t do anything and I know you didn’t do anything. I
can’t afford to be charged with murder. . . .
Bell: You just went outside.
McNabb: Hmm?
Bell: . . . I love you baby. I just want her to come home. . . .
McNabb: You got to keep you head up. . . . You just gotta be strong.
Bell: I can’t be strong anymore.
...
Bell: I didn’t do sh[**]. I was asleep, and I woke up and she was gone.
13
McNabb: I know.
...
McNabb: They gonna try and play us against each other.
...
Bell: . . . [S]he’s gone. I moved that [bin], and it was on the bed.
...
Bell: [Where] did she go?
...
McNabb: I loved - I love her. She was my baby.
Bell: Calm down. Why did you just do that?
McNabb: Do what?
Bell:
Why did you just do that?
McNabb: Why did I just do what?
14
Bell: You just said loved.
McNabb: I don’t know . . . . Where is she? . . . You think I had
something to do with this sh[**]?
Bell: In my heart, no. I just hope you haven’t. My heart tells me no.
...
Bell: I just want my baby.
McNabb: I know. I love you so much.
Bell: I love you.
...
Bell: Who would come in a house and take our baby?
McNabb: . . . I don’t know. That’s all I can say is, I just don’t know.
Following their interviews with police, Bell and McNabb spent the night at
Weatherford’s home. Weatherford asked Bell and McNabb to make a list of the
people who had been in their home. Before they went to bed, Bell, McNabb, and
15
Weatherford went out to look for the victim and to speak with some of the people
Bell and McNabb named.
The next day, several citizens joined in the search. At some point, a citizen in
the search party found a jacket, a “drug bong,” and an empty wallet.3 Another citizen
in the search party was walking the wood line near the trailer park when she came to
a clearing and noticed a log that looked out of place. The log was sitting over a big
open hole. She noticed that the log was unusual in “the way it was sitting, and under
the log was a pile of sticks and twigs up underneath it. I had picked up one of the
sticks and began to move away some of the leaves, and that’s when I saw the black
string.” The citizen pulled the string up with a stick to find that it was attached to a
blue and red drawstring bag with a Michael Jordan logo on it. Law enforcement
officials were informed of the discovery and an investigator was called to the area.
A deputy noted that the bag, which was found about 856 feet from Bell’s home, was
3
Some of these items were disposed of by McNabb after the altercation with
Lester. Lester came to Bell’s home to use drugs with McNabb, Shane Kidd and
another man in September 2017, several days before the victim was born. At some
point, McNabb became angry with Lester, attacked him with brass knuckles, and
threw him out of the home. Bell and C. M. were sitting in the car when this occurred.
McNabb admitted to later taking Lester’s belongings to the woods along with his own
drug paraphernalia he wrapped in a jacket he found, for fear that Lester would call the
police. Both Bell and McNabb mentioned this altercation in their statements to
investigators.
16
wet and that it had rained the night before. Inside of the bag was a “Varsity”
restaurant t-shirt, a pair of blue and black “camouflage-type” men’s boxers, a small
child-size light blue t-shirt, and the body of the victim wrapped tightly in a blue
blanket. Certain that the victim was deceased, the investigator called the coroner.
The coroner arrived and transported the bag to the medical examiner’s office.
The blue blanket the victim was wrapped in had “blood-type stains” on it and under
the blanket was a gray sleeveless adult t-shirt with “one of the arm holes . . . wrapped
around [the victim’s] neck and covering her head.” She was wearing a purple onesie
and a diaper. An autopsy revealed that the victim died of “blunt impact injury” to her
head. She had numerous fractures to the top and base of her skull, bruising to her left
cheek and left jawline, and the upper palate of her mouth was lacerated from front to
back. She also had a cut underneath one of her eyes that looked like it was made by
a sharp object. The victim’s “deciduous teeth” – teeth that had not yet erupted from
her gums – “had come out because of the laceration to the upper gums” and could be
seen from her mouth. The pathologist concluded that the victim’s injuries were
17
“contemporaneous” and that she “sustained this extensive head trauma and then died
. . . rapidly.”4
Bell was riding in a car with her mother, McNabb, and two others, en route to
Bell’s home when Bell’s aunt called Bell and told her that the victim’s body had been
found.5 Bell’s mother explained that when the call came, everyone in the car “just
freaked out, kind of started screaming,” and that she told McNabb “to get out of the
car because [she] was afraid that guns were going to be put on the car” and a child
was in the vehicle with them. They stopped at a red light, McNabb said “they are
going to think it’s me” and jumped out of the vehicle. Bell asked the driver to stop in
a neighborhood that is known for methamphetamine, but the driver took Bell to her
home.
4
A pediatrician noted from victim’s visit several days before her body was
found that her right foot was slightly turned in and that she had a “small patch of
bluish discoloration on [her left] cheek.” But the pathologist testified that neither of
these caused her death. She testified further that the victim had no preexisting
injuries, i.e., no healing bruises or healing broken bones. There was no evidence
presented that either the victim or her sister had been physically abused before the
victim’s death.
5
Weatherford had also texted Bell to inform her that the victim’s body had
been found.
18
Meanwhile, a law enforcement officer went to Bell’s home to locate Bell and
McNabb to inform them that the victim’s body had been found. No one was at the
home, but Bell arrived about 3:15 p.m. She was crying and upset. The officer asked
Bell if she had heard that the victim’s body had been found, describing the exchange
as follows:
I said are you aware and she said yeah, I got a text that they found --
found the baby in the woods. And so I said are y’all missing a backpack
or anything? And she said yeah, my husband has one, hasn’t seen it in
a couple of days. And I said describe it to me and she said it’s a
drawstring type backpack and it’s a Nike, it’s blue on one side with a red
emblem and red on one side with [a] blue emblem on it. And she said he
keeps -- my husband, McNabb keeps it with him all the time, he carries
his clothes in it, but she hasn’t seen it in a couple of days. And I said
well, where is he? And she said well, we [were] in the car and when I
got the text that they found baby in the woods, he jumped out of the car
and said they are going to blame [him] for it and took off running, so we
drove on here.
Bell was again transported to the sheriff’s department where she waived her
Miranda rights and gave a statement. The corporal described Bell as “cooperative .
. . she wasn’t evasive,” and that she went willingly. In this second interview, Bell
recounted the same series of events she did in her first interview. But she admitted for
19
the first time that she used “weed and meth,” and that McNabb had physically abused
her: “I lied to y’all yesterday when I said he hadn’t hit me. I have had bruises on my
back and my sides. I have bruises everywhere, all over my arms and legs . . . [h]e hits
me all the time.” Bell stated that she believed someone had come into her home and
taken the victim with “all of the people [McNabb] had in and out of there.” When
asked what McNabb was wearing the morning of October 7 around 5:00 a.m. (when
she and McNabb fed the victim and changed her), Bell stated that he was wearing
“blue camo boxers” and that he might have changed into green boxers at some point
later that morning before getting dressed to go look for the victim. Bell was unaware
at the time she made this statement that blue camouflage boxers were found in the bag
with the victim’s body.
Later in the evening, McNabb went into a convenience store and told the clerk
that he had been running “because the cops [were] on [his] trail.” When the clerk
asked him why, McNabb told her “that was my baby.” The clerk, who remembered
seeing McNabb in the store the day before and had heard about the missing victim,
called 911. McNabb purchased a drink and told the clerk, “I didn’t do it. I didn’t do
it. I swear I didn’t do it,” as he turned to leave the store. According to the clerk: “I
said well, then you need to tell them. He said y’all are going to be surprised. I said,
20
I am not going to be surprised, but if you didn’t do it and you know who did, you
need to tell it.” She explained that McNabb was wet and dirty, as if he had been in the
woods, and “[k]ind of hyper.” A customer who was in the store at the same time
testified that McNabb said he had been in the woods for two days.
A corporal with the sheriff’s department responded to the 911 call from the
convenience store. He was told that McNabb had gone in the direction of an
automated car wash. The corporal found McNabb hiding on the back side of the car
wash and placed him under arrest without incident.6 McNabb was “[s]oaking wet . .
. from head to toe” and had grass and leaves on his clothing and shoes. McNabb had
been “on the run for approximately eight hours” when he was arrested.
In his second statement to law enforcement officers, McNabb told investigators
that he jumped out of the vehicle when he was told the victim’s body was discovered
because he “got scared” and “felt like [he] was being accused anyway.” And contrary
to his statement the day before that he had only used marijuana two weeks prior,
McNabb stated that he used methamphetamine every day, including the night before
the victim disappeared from the home. He also stated that Bell smoked a “[p]iece of
6
McNabb was not arrested for the victim’s death at this time, but was arrested
for a probation violation.
21
a joint” that night, but denied that she smoked methamphetamine with him. McNabb
admitted that he had hit Bell before, most recently a few weeks prior. And, he stated
for the first time that as he fed the victim around 5:00 a.m., he took her outside on the
front porch for a while and then brought her back inside, finished feeding her, put her
in her bassinet, and put her pacifier on top of her.
On October 11, 2017, McNabb, still in jail for a probation violation, was
charged with murder and other crimes related to the death of the victim. Two months
later, an investigator received a message from McNabb that he wanted to speak with
him. McNabb was brought to an interview room for yet a third interview after
waiving his Miranda rights. He admitted taking Lester’s belongings to the woods and
stated that the drug paraphernalia found belonged to him. McNabb claimed that he
heard a rumor that his friend Shane Kidd killed the victim, asserted that the killer had
to be someone who had been to his home, and began naming some of those
individuals. He suggested that law enforcement officers question citizens who were
in the search party and that someone must have taken the victim from the home and
then later placed her body in the woods after officers initially searched the area; and,
he questioned why the K-9s did not locate the victim earlier in the search. McNabb
told the investigator that “supposedly somebody very important put a hit out on
22
[him].” He stated that he had been informed that the victim was found in a “Jordan”
bag and admitted that the bag was his. McNabb explained that he often carried drug
paraphernalia and clothes in the bag, and that the bag and the “Varsity” restaurant t-
shirt would have been in the plastic storage bin containing his clothes next to the
victim’s bassinet (which had been moved to the bed when the victim was discovered
missing), but that the last time he had the bag, he emptied it. McNabb claimed that
he had nothing to do with the victim’s disappearance and death. He explained:
I know deep down inside that when it’s all said and done, that
methamphetamine is going to be the reason why my child ended up
dead. Because it was somebody that was coming around, and everybody
that was coming around was coming around because of
methamphetamine. In the end, I feel like it’s all going to come around
in a big circle and be methamphetamine as the root of the problem.
That’s what I feel. Whoever did it is a meth head.
When asked if Bell killed the victim, McNabb replied, “No.”
Bell was subsequently arrested on January 7, 2018, and charged with second
degree murder, second-degree cruelty to children, and contributing to the dependency
of minor. She waived her Miranda rights and was again interviewed by investigators.
In this third interview, Bell again insisted that she had nothing to do with the victim’s
disappearance and death. After the investigator explained the charges against her,
23
Bell stated that she should only be charged with “improper care and the things that
had been going on in the household” and admitted that she was “guilty of somewhat
neglect because [she] did drugs.” But she was adamant that she “was a good momma
. . . trying the best that [she] could,” and that she “loved [her] babies.” Bell asserted,
as she did in her two prior interviews, that she was asleep and when she awoke, the
victim was gone. She again admitted that she was not initially truthful about her and
McNabb’s drug use and the fact that McNabb physically abused her. But she
explained further that McNabb had never abused the children.
Kidd testified that McNabb sent him a message around 7:41 a.m. telling Kidd
that he was “wigging and tripping and needed to get out of there for a little while,”
and that less than an hour later McNabb sent him a message that “he couldn’t find the
baby.” However, investigators were unable to locate a record of these messages.
On October 20 and December 11, 2017, McNabb made phone calls to Bell
from the county jail. In those calls, Bell accused McNabb of killing the victim.
McNabb repeatedly denied any wrongdoing and suggested that someone took the
victim from their home and was trying to blame him.
Following the presentation of evidence, the jury found Bell guilty on all three
counts of the indictment. The trial court merged the second-degree cruelty to children
24
count into the second-degree murder count and sentenced her to 30 years, with 15
years to serve in prison and 15 years on probation. For contributing to the dependency
of a minor, the court sentenced Bell to another 10 years of confinement to run
concurrently with the sentence for second-degree murder. The trial court denied
Bell’s motion for new trial, and this appeal followed.
In her sole claim of error, Bell asserts that the evidence was insufficient to
support the guilty verdicts. When this Court reviews the sufficiency of the evidence
the relevant question is 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.
This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.
Landell v. State, 357 Ga. App. 207, 208-209 (1) (850 SE2d 419) (2020) (citation,
punctuation, and emphasis omitted); see Jackson v. Virginia, 443 U. S. 307 (99 SCt
2781, 61 LE2d 560) (1979). The evidence presented here was circumstantial. And
“[t]o 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.” OCGA § 24-14-6. Further, “[e]very
25
person concerned in the commission of a crime is a party thereto and may be charged
with and convicted of commission of the crime.” OCGA § 16-2-20 (a).
A person is concerned in the commission of a crime only if he: (1)
Directly commits the crime; (2) Intentionally causes some other person
to commit the crime under such circumstances that the other person is
not guilty of any crime either in fact or because of legal incapacity; (3)
Intentionally aids or abets in the commission of the crime; or (4)
Intentionally advises, encourages, hires, counsels, or procures another
to commit the crime.
OCGA § 16-2-20 (b). And “[w]hether a person is a party to a crime may be inferred
from that person’s presence, companionship, and conduct before, during, and after
the crime.” Cisneros v. State, 299 Ga. 841, 847 (2) (792 SE2d 326) (2016) (citation
and punctuation omitted).
1. Murder in the second degree. Bell argues that the evidence was insufficient
to establish that she “caused the massive trauma to [the victim’s] head,” either
directly or as a party to the crime. We agree.
OCGA § 16-5-1 (d) provides: “A person commits the offense of murder in the
second degree when, in the commission of cruelty to children in the second degree,
he or she causes the death of another human being irrespective of malice.” And a
person commits cruelty to children in the second degree “when such person with
26
criminal negligence causes a child under the age of 18 cruel or excessive physical or
mental pain.” OCGA § 16-5-70 (c). “Criminal negligence is an act or failure to act
which demonstrates a willful, wanton, or reckless disregard for the safety of others
who might reasonably be expected to be injured thereby.” OCGA § 16-2-1 (b).
The indictment charged Bell with second-degree murder for “caus[ing] the
death of [the victim] . . . while in the commission of cruelty to children in the second
degree, by causing said [victim] . . . cruel and excessive physical pain through the
infliction upon her of blunt force trauma to her head, in violation of OCGA § 16-5-1
(d).” (emphasis supplied). The State argues that, with regard to each crime, Bell’s acts
of leaving the victim at her cousin’s home for two days; using methamphetamine (that
would interfere with her ability to care for the child); and allowing the victim to
remain in a home with an “extremely volatile” McNabb who also used
methamphetamine, assaulted Bell on multiple occasions, and “beat up Mathew Lester
with brass knuckles” were sufficient to support the guilty verdicts. But none of these
acts show that Bell caused cruel and excessive pain to the victim by inflicting blunt
force trauma to her head, as alleged in the indictment, or that she aided and abetted
in the crime.
27
The facts here are similar to the facts in Glenn v. State, 278 Ga. 291 (602 SE2d
577) (2004). In Glenn, a three-week-old child lived with her mother and the mother’s
boyfriend, and “appeared normal” late one night when the mother’s sister visited. Id.
at 292 (1). Around 3:00 a.m. the next morning, the boyfriend woke the mother and
told her that the child was having trouble breathing. Id. at 293 (1). The child was
taken to a hospital where she later died. Id. In support of the charges against the
mother for felony murder, cruelty to children, and aggravated battery, the State
presented evidence that the mother allowed the boyfriend to care for the child even
though she had been told that he may have been responsible for an earlier injury to
the child’s leg and may have been abusive toward other babies. Id. at 294 (1) (b). The
State also pointed to evidence that the mother failed to participate in the emergency
room discussion. Id. The Georgia Supreme Court reversed the mother’s convictions,
finding that the State was required to prove beyond a reasonable doubt that the
mother
intentionally assisted, aided, abetted, encouraged, or otherwise
concerned herself in the abuse of [the child], not that she did so
inadvertently . . . There was absolutely no evidence showing that [the
mother] intentionally assisted [the boyfriend’s] abuse of [the child] in
any way. Further, the State failed to exclude the reasonable hypothesis
that [the boyfriend] injured the baby while [the mother] slept unaware
28
in another room in the house, and that [the mother] failed to participate
in the emergency room discussion because she did not know what had
caused [the child] to stop breathing.
Glenn, supra at 294-295 (1) (b).
Similarly, in Johnson v. State, 269 Ga. 840 (506 SE2d 374) (1998), the Georgia
Supreme Court reversed the felony murder conviction (predicated on cruelty to
children) of an uncle who was present in the house the night his infant nephew was
beaten and killed. Id. at 840-841. The uncle was sleeping downstairs and the child
was in the same bedroom with the parents when a neighbor heard crying and a
“thump” around 3:00 a.m. Id. at 841. An hour later the neighbor heard the uncle
saying “I didn’t do it,” and two hours later the uncle called the police and told them
the child was not breathing. Id. On appeal, the Supreme Court concluded that
although the evidence showed that the uncle had witnessed the father’s prior abuse
toward the child and was uncooperative in the investigation, there was no evidence
the uncle abused the child, and the State’s case against him was based entirely on
circumstantial evidence. Id. at 842-843. The court concluded that the State failed to
exclude the reasonable hypothesis that the uncle was sleeping downstairs and
unbeknownst to him, the parents beat and killed the child. Johnson, supra at 842-843.
29
Here, the evidence showed only that Bell last saw the victim when she and
McNabb changed her diaper and fed her around 5:00 a.m., that she went back to the
living room and left McNabb to put the victim to bed in her bassinet, and that when
C. M. woke her up around 10:30 a.m., the victim was missing. The victim’s body was
found a day later in the woods near the home in McNabb’s gym bag with some of his
clothing, and it was determined that she died from blunt force trauma to her head.
Although Bell initially told investigators that she did not use drugs and that McNabb
did not physically abuse her, her several statements regarding what occurred the day
the victim was taken from her home were consistent, and she was cooperative with
investigators. Just as in Glenn and Johnson, the State “offered nothing to discount the
reasonable possibility that [Bell] did not contribute to the [victim’s] death” other than
her presence in the home. Johnson, supra at 843. And, unlike in Glenn and Johnson,
there was no evidence here of prior abuse of the victim.
There was no evidence presented that Bell directly caused the victim cruel and
excessive pain by inflicting blunt force trauma to her head; caused someone else to
commit the act; aided or abetted in the act; or that she advised, encouraged, hired,
counseled or procured someone to commit the act. There was nothing to exclude the
reasonable possibility that she was asleep when the victim was taken from the home
30
and/or killed, and there was nothing in her actions before, during, or after the victim’s
disappearance and death from which the jury could make such an inference. See
James v. State, 260 Ga. App. 350, 352-353 (1) (579 SE2d 750) (2003) (defendant’s
conduct before and after crimes did not support inference that he knew of plan for
home invasion or that he shared the criminal intent of parties who committed the
crimes). Under these circumstances, we must reverse Bell’s conviction for second
degree murder. See Glenn, supra; Johnson, supra; compare Virger v. State, 305 Ga.
281, 288-289 (3) (824 SE2d 346) (2019) (evidence showed that husband fathered
child while he and wife were estranged, witnesses observed bruises on the child after
the child began living with husband and wife, wife resented the child and observed
husband seriously injure child and failed to seek medical attention, and wife was
caught on video acknowledging some culpability in child’s death; evidence was
sufficient for jury to conclude that wife was a party to felony murder based on
second-degree child cruelty and, in particular, to find that her and the husband’s
failure to seek medical aid for the child was the proximate cause of her death).
We note that the State seemingly acknowledged that the evidence was not
sufficient to support Bell’s conviction for causing the victim’s death by inflicting
blunt force trauma to her head. Unlike the arguments in the State’s brief on appeal,
31
in closing statements at trial, the prosecutor argued that Bell gave law enforcement
officers incriminating information about McNabb, “cared about getting her child
back,” and “was consistent about the events that happened.” The prosecutor argued
further, “we know that [Bell] is not involved. She is not trying to protect [McNabb].”
Nevertheless, the prosecutor explained that Bell was being charged with second
degree murder and second degree cruelty to children for inflicting blunt force trauma
to the victim’s head. Then, immediately after explaining that Bell was being charged
for the cruelty of inflicting blunt force trauma, the prosecutor stated that the cruelty
was “neglect. It would be drugs. It would be violence. She is accountable for her
decision. She chose to bring this child into this environment.”
2. Cruelty to children in the second degree. Because we reverse Bell’s
conviction for second-degree murder, her “guilty verdict for second degree cruelty
to children is ‘unmerged’ from her conviction for second degree murder.” Castro-
Moran v. State, 356 Ga. App. 248, 252 (1) (b) (845 SE2d 708) (2020). We are
therefore authorized to consider her challenge to the sufficiency of the evidence with
regard to the verdict on the charge of second degree cruelty to children. See id. (“[I]f
a defendant raises an issue on appeal that, on remand, would bar entry of a conviction
32
on a verdict that was merged or vacated, it is appropriate to address that issue.”)
(citation and punctuation omitted).
The indictment alleged that Bell committed cruelty to children in the second
degree by “caus[ing] [the victim] . . . cruel and excessive physical pain through the
infliction upon her of blunt force trauma to her head, in violation of OCGA § 16-5-70
(c).” But as we held in Division 1, the evidence was insufficient to show that Bell
caused the victim cruel and excessive physical pain by inflicting blunt force trauma
to her head, either directly or as a party to the crime. Therefore, the evidence was also
insufficient to sustain the guilty verdict for cruelty to children in the second degree.
3. Contributing to the dependency of a minor. With regard to Bell’s conviction
for felony contributing to the dependency of a minor, we find the evidence to be
sufficient. Bell was charged with a violation of OCGA § 16-12-1 (b) (3), which
provides that a person commits the offense of contributing to the dependency of a
minor when such person “[w]illfully commits an act or acts or willfully fails to act
when such act or omission would cause a minor to be adjudicated to be a dependent
child as such term is defined in Code Section 15-11-2.” Under OCGA § 15-11-2 (22)
(A), a dependent child is one who has been neglected or abused and is in need of
protection from the court. As explained in OCGA § 16-12-1 (c), it shall not be a
33
defense to the offense of contributing to the dependency of a minor “that the minor
. . . has not been adjudged to be a dependent child or a child in need of services.”
The indictment charged Bell with the “willfully fail[ing] to provide proper
parental care or control for [the victim] . . . and fail[ing] to provide said child with
adequate supervision necessary for such child’s well-being, said act resulting in [the
victim] being a deprived child, in accordance with the provisions of Code section 15-
11-2 . . . and said act[s] resulted in the death of said child, in violation of OCGA § 16-
12-l (b) (3).” Here, the evidence showed that Bell used methamphetamine and
marijuana on a regular basis including the night before the victim was taken from the
home; left the eight-day-old victim along with her sister for two days with a family
member who had four children of her own; told the grandfather that he could keep her
children in exchange for him returning the car she was using; regularly had others in
her home to use methamphetamine; and resided with McNabb, who also used
methamphetamine daily, was physically violent toward her, and had recently
assaulted another individual with brass knuckles. Bell herself admitted that she did
not properly care for the victim and that there was drug use in the home, stating
further that she was “guilty of . . . neglect because [she] did drugs.” There was
therefore some evidence for the jury to conclude that Bell committed acts that caused
34
the victim to be neglected7 and in need of protection from the court. See In the
Interest of C. R., 292 Ga. App. 346, 349-350 (1) (a) (665 SE2d 39) (2008) (court did
not err in finding child dependent where mother abused drugs before and after child
was born and often left child in care of others when she went to use drugs); In the
Interest of K. W., 279 Ga. App. 319, 321 (631 SE2d 110) (2006) (“juvenile court is
entitled to infer an adverse effect on the children when there is evidence of chronic
alcohol or drug abuse by the parent”); see also Walker v. State, 104 Ga. App. 595, 595
(2) (122 SE2d 486) (1961) (neglect includes placing child in unfit surroundings or
exposing child to immoral and depraved influences not conducive to the child’s
health morals or well-being).8
7
OCGA § 15-11-2 (48) defines neglect as
(A) The failure to provide proper parental care or control, subsistence,
education as required by law, or other care or control necessary for a
child’s physical, mental, or emotional health or morals; (B) The failure
to provide a child with adequate supervision necessary for such child’s
well-being; or (C) The abandonment of a child by his or her parent,
guardian, or legal custodian.
8
We note that there was no expert testimony presented in this case regarding
the effects of using methamphetamine or marijuana. But in In the Interest of K. W.,
supra at 322, we held that the inference of an adverse affect on minor children from
a parent’s chronic drug use,
was particularly warranted . . . where the [parent’s] drug of choice was
35
However, because the indictment charged that Bell’s “act[s] resulted in the
death of [the victim],” resulting in a felony charge of contributing to the dependency
of a minor, see OCGA § 16-12-1 (d.1) (1),9 we must also consider whether her
conduct carried with it the foreseeable risk of death. See, e.g., Williams v. State, 299
methamphetamine, a Schedule II controlled substance involving dangers
to adults and children that have been well documented. See, e.g., Sharon
G. Elstein, Children Exposed to Parental Substance Abuse: The Impact,
34 Colo. Law. 29, 32 (2005) (children exposed to methamphetamine use
are at increased risk of victimization because the drug increases
“paranoia and rage”); Zachary R. Gates, Obeying the “Speed” Limit:
Framing the Appropriate Role of EPA Criminal Enforcement Actions
Against Clandestine Drug Laboratory Operators, 13 Penn. St. Envtl. L.
Rev. 173, 175-176 (2005) (long-term methamphetamine use is
associated with “violent behavior, confusion, and insomnia, … auditory
hallucinations (‘the voices’), mood swings, and delusions or paranoia”).
9
A person convicted under OCGA § 16-12-1 (b) (3) shall be guilty of a felony
when a violation of the statute results “in the serious injury or death of a child.”
OCGA § 16-12-1 (d.1) (1). We note that while the indictment alleged that Bell’s acts
resulted in the victim’s death, it did not specifically mention OCGA § 16-12-1 (d.1)
(1). Subsection (d.1) provides the level of the crime and punishment for a conviction
under OCGA § 16-12-1 (b) (3) based upon whether “serious injury or death of a
child” occurred and whether it is a first or subsequent offense. But the language of
the indictment clearly refers to felony contributing to the dependency of a minor
under OCGA § 16-12-1 (d.1) (1). And it appears that Bell was convicted of and
sentenced for a felony pursuant to subsection (e) (1) as required by subsection (d.1)
(1).
36
Ga. 632, 634-635 (791 SE2d 55) (2016) (noting that the General Assembly addressed
the “foreseeable risk of death” in the contributing to the dependency of a minor
statute).
We have never before analyzed foreseeable risk of death under the contributing
to the dependency or delinquency of a minor statute. Indeed, in the criminal context,
a foreseeability and proximate cause analysis appears most often in murder cases. See
State v. Jackson, 287 Ga. 646, 649 (2) (697 SE2d 757) (2010) (noting that “proximate
cause is the standard for homicide cases in general”); see also, e.g., Martin v. State,
310 Ga. 658, 661-662 (1) (852 SE2d 834) (2020) (malice murder case; foreseeability
of death during armed robbery); Treadaway v. State, 308 Ga. 882, 884-885 (1) (843
SE2d 784) (2020) (felony murder case; foreseeability of death from assault of highly
intoxicated, disabled person). But these principles may apply for any crime where it
is alleged that a criminal act resulted in a death. See Jackson, supra at 648 (2)
(explaining that “proximate cause is the standard for criminal cases in general”); see
also In the Interest of B. L. M., 228 Ga. App. 664, 664-665 (1) (492 SE2d 700) (1997)
(applying proximate cause analysis to charge of reckless abandonment under OCGA
§ 16-5-72 (abandonment of child that results in death)). “In a criminal case, proximate
cause exists when the accused’s act or omission played a substantial part in bringing
37
about or actually causing the victim’s injury or damage and the injury or damage was
either a direct result or a reasonably probable consequence of the act or omission.”
Skaggs v. State, 278 Ga. 19, 19-20 (1) (596 SE2d 159) (2004) (citations and
punctuation omitted). It “imposes liability for the reasonably foreseeable results of
criminal . . . conduct if there is no sufficient, independent, and unforeseen intervening
cause.” Jackson, supra at 654 (3).
However, “proximate cause is a jury question.” Dunagan v. State, 283 Ga. 501,
505 (661 SE2d 525) (2008). And there was some evidence here for the jury to
conclude that there was a “foreseeable risk of death” to the victim from Bell’s neglect
that included placing the victim in an environment of methamphetamine and violence.
There was evidence of violence in the home before and after the victim was born, and
Bell herself admitted that McNabb had people “in and out” of the house. Bell used
methamphetamine and marijuana on a regular basis and allowed McNabb and others
to do the same in her house, including the night before the victim disappeared.
Although Bell’s acts of neglect were not the sole proximate cause of the victim’s
death, the evidence was sufficient for the jury to conclude that those acts played a
substantial part in her death and that death was a reasonably probable consequence
of that neglect. See Williams v. State, 298 Ga. 208, 213-214 (2) (b) (779 SE2d 304)
38
(2015) (child victim died from cocaine ingestion; felony murder predicated on
possession of cocaine with intent to distribute affirmed where defendant hid cocaine
in a hole in living room sofa within the reach of his young children, creating a
foreseeable risk of death); Skaggs, supra (proximate cause includes when the
accused’s act played a substantial part in bringing about the victim’s injury and the
injury was a reasonably probable consequence of the act); In the Interest of B. L. M.,
supra (finder of fact authorized to find that although child’s exposure to the elements
was not the sole proximate cause of death, mother’s act of abandonment materially
contributed to or accelerated child’s death). We therefore affirm Bell’s felony
conviction for contributing to the dependency of a minor under OCGA § 16-12-1
(d.1) (1).10
Judgment affirmed in part and reversed in part. Dillard, P. J., and Pinson, J.,
concur.
10
Bell also asserts that there was a fatal variance between the indictment and
the proof at trial. However, the particular fatal variance argument she asserts is
duplicative of her challenge to the sufficiency of the evidence. In any event, a fatal
variance claim would be waived as Bell did not raise it in the trial court. See Hughes
v. State, 310 Ga. 453, 456 (2) n.5 (851 SE2d 580) (2020).
39