CourtListener 10680007

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official text of the opinion.

In the Supreme Court of Georgia

Decided: October 24, 2023

S22G0747. BELL v. THE STATE.

ELLINGTON, Justice.

Following a jury trial, appellant Cortney Bell was found guilty

of murder in the second degree, cruelty to children in the second

degree, and felony contributing to the dependency of a minor in

connection with the death of her infant daughter, Caliyah. The

Court of Appeals reversed Bell’s convictions for second degree

murder and cruelty to children on appeal, concluding that the

evidence was insufficient to support those charges. Bell v. State, 362

Ga. App. 687, 699-703 (1), (2) (870 SE2d 20) (2022). It affirmed her

conviction for felony contributing to the dependency of a minor, and

we granted certiorari to determine whether the Court of Appeals

erred in holding that the evidence was legally sufficient to support

Bell’s conviction on that charge. Because we conclude based on the
facts of this case that the evidence was insufficient to authorize a

jury to conclude that Caliyah’s death was proximately caused by

Bell’s conduct as alleged in the indictment, we reverse the judgment

of the Court of Appeals.1

The evidence presented at trial showed the following. In

October 2017, Bell lived with her boyfriend and co-defendant,

Christopher McNabb, and their two children, C.M., who was two

years old, and the victim, who was born on September 23, 2017. On

the evening of October 6, 2017, Bell and McNabb smoked

methamphetamine and later went to bed in their bedroom while

their children slept. They both got up the next morning at 5:00 a.m.

to change Caliyah’s diaper and feed and dress her in clean pajamas.

Bell then fell asleep on the living room couch until she was

awakened around 9:30 a.m. by the sound of McNabb’s phone when

1 The State’s petition for certiorari, in which the State sought to appeal

the Court of Appeals’ decision reversing Bell’s convictions for murder in the
second degree and cruelty to children in the second degree, was denied by this
Court. Accordingly, our review on certiorari is limited to the merits of the Court
of Appeals’ decision related to Bell’s conviction for felony contributing to the
dependency of a minor.

2
he received a text message.2 Bell went back to sleep until around

10:30 a.m., when C.M. woke her and said that Caliyah was gone.

Bell called 911 after she could not find Caliyah but found her

pajamas on the bathroom floor. Bell told investigators that she had

last been with Caliyah at her 5:00 a.m. feeding and that both

children “were okay” when she was awakened at 9:30 a.m. by the

sound of McNabb’s phone. While being questioned by a sheriff’s

deputy, Bell stated that she did not know of anyone who would take

Caliyah, but that McNabb had been involved in a fight with a friend,

Matthew Lester, about six weeks earlier.3 She also said that

McNabb had never hit her, that she and McNabb “were not on

drugs,” and that she had not smoked marijuana in six weeks and

2 In her statement to police, Bell said that she thought both she and

McNabb went back to sleep on the couch after Caliyah’s 5:00 a.m. feeding.
Other evidence presented at trial showed that McNabb stayed awake for some
period of time after the 5:00 a.m. feeding, and he then either fell asleep on the
couch or was pretending to be asleep on the couch when he received a text at
9:30 a.m.
3 Investigators later learned that Lester and another man had come to

Bell’s home in September 2017, before Caliyah was born, to use drugs. McNabb
became angry with Lester, attacked him with brass knuckles, and threw him
out of the home. Neither Bell nor C.M. were in the home at the time this
incident occurred.
3
had not smoked methamphetamine in at least three years. There

were no signs of any type of trauma in the bedroom where Caliyah

had been sleeping with her sister and no signs of forced entry into

the home.

Caliyah’s body was discovered the next day in a wooded area

close to her home. An autopsy revealed that she died from blunt

impact injuries to her head and that she had numerous fractures to

the top and base of her skull, bruising to her left cheek and left

jawline, a cut underneath one of her eyes, and the upper palate of

her mouth was lacerated from front to back. A medical expert

testified that Caliyah had no healing bruises or evidence of previous

injuries and that her injuries would have resulted in almost

immediate death.

After Caliyah’s body was discovered, Bell admitted to

investigators that she, Bell, had been physically abused by McNabb,

and that the abuse caused bruising on her back, arms, and legs. Bell

explained in later interviews that McNabb had never abused either

of the children. There was no evidence that Caliyah or her sister had

4
been physically abused before Caliyah’s death.

McNabb was arrested on October 7, 2017, and charged with

murder and other crimes related to Caliyah’s death. A jury found

him guilty of all charges, and his convictions were affirmed by this

Court. See McNabb v. State, 313 Ga. 701 (872 SE2d 251) (2020). Bell

was arrested in January 2018, and pertinent to this appeal, she was

charged with and convicted of felony contributing to the dependency

of a minor. The Court of Appeals affirmed Bell’s conviction on that

charge, concluding that 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 [the victim’s] death and that death was a

reasonably probable consequence of that neglect.” Bell, 362 Ga. App.

at 706 (3). In support of its conclusion, the Court of Appeals relied

on evidence showing that Bell used methamphetamine and

marijuana on a regular basis and allowed McNabb and others to do

the same in her house and that McNabb had hit Bell both before and

after Caliyah was born. Id. at 705-706 (3).

5
Bell contends that the Court of Appeals erred by concluding

that the evidence was sufficient to support her conviction for felony

contributing to the dependency of a minor because it failed to

establish that her acts or omissions proximately caused Caliyah’s

death. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt

2781, 61 LE2d 560) (1979). We evaluate a challenge to the

sufficiency of the evidence by viewing the evidence in the light most

favorable to the verdict, and asking whether any rationale trier of

fact could have found the defendant guilty beyond a reasonable

doubt of the crimes of which she was convicted. See id.

In Count 3 of its indictment, the State charged Bell with felony

contributing to the dependency of a minor in violation of OCGA § 16-

12-1 (b) (3) and (d.1) (1). The indictment alleged that Bell caused

Caliyah’s death by failing “to provide proper parental care” and

“supervision necessary for [Caliyah’s] well-being, said act resulting

in [Caliyah] being a deprived child.”4 A person commits the crime of

4 Although the crime occurred and Bell’s indictment issued after the
Juvenile Code was amended to eliminate the term “deprived child” and use,

6
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[.]” OCGA § 16-12-1 (b) (3). A “dependent child” for

purposes of this appeal is defined as a child who has been “abused

or neglected and is in need of the protection of the court.”5 OCGA §

15-11-2 (22) (A).

The misdemeanor offense of contributing to the dependency of

a minor does not require as an element that a particular result come

from the accused’s acts. To sustain a conviction for felony

contributing to the dependency of a minor as charged in this case,

however, the State must prove an additional element, that the act

or omission that created the child’s dependency has produced a

particular result. OCGA § 16-12-1 (d.1) (1). By the plain terms of the

instead, the term “dependent child,” the indictment nonetheless used the old
terminology, referring to the victim in the indictment as a “deprived child.” See
OCGA § 15-11-2 (22).
5 OCGA § 15-11-2 (22) also defines a “dependent child” as a child who

“[h]as been placed for care or adoption in violation of law” or “[i]s without his
or her parent, guardian, or legal custodian.”
7
statute, to be guilty of felony contributing to the dependency of a

minor, the act or omission that created the child’s dependency must

have “resulted in the serious injury or death” of the child. Id.

The phrase “resulted in the serious injury or death of a child”

in OCGA § 16-12-1 (d.1) (1) has not been previously interpreted by

this Court. It is well-established, however, that the “connection that

criminal law requires between the conduct and the result is

proximate cause.” Daddario v. State, 307 Ga. 179, 186 (2) (a) (835

SE2d 181) (2019). See State v. Jackson, 287 Ga. 646, 649 (2) (697

SE2d 757) (2010) (“Cause” in the felony murder statute means

proximate cause.). As we have stated, this is because

Georgia is a proximate cause state. When another
meaning is not indicated by specific definition or context,
the term “cause” is customarily interpreted in almost all
legal contexts to mean “proximate cause” — that which,
in a natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without
which the result would not have occurred.

Id. at 648 (2) (citation and punctuation omitted). See Hall v.

Wheeling, 282 Ga. 86, 86 (1) (646 SE2d 236) (2007) (interpreting

phrase “physically injures” in aggravated child molestation statute

8
to be synonymous with “causing physical injury”); 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, a statute prohibiting the

abandonment of a child that results in death). See also 1 Wayne R.

LaFave, Substantive Criminal Law § 1.2 (b) (3d ed., Oct. 2022

update) (describing as one of the “basic premises which underlie the

whole of the Anglo-American substantive criminal law” the

proposition that “as to those crimes which require not only some

forbidden conduct but also some particular result of that conduct,

the conduct must be the ‘legal cause’ (often called ‘proximate cause’)

of the result”).

Proximate cause is “that which, in a natural and continuous

sequence, unbroken by any efficient intervening cause, produces

injury, and without which the result would not have occurred.”

Jackson, 287 Ga. at 648 (2) (citation and punctuation omitted). In a

criminal case, proximate cause exists if the act of the accused

“directly and materially contributed to the happening of a

9
subsequent accruing immediate cause of death,” id. at 652 (2)

(citation omitted), and it “imposes liability for the reasonably

foreseeable results of criminal (or, in the civil context, tortious)

conduct if there is no sufficient, independent, and unforeseen

intervening cause.” Id. at 654 (3). See also Skaggs v. State, 278 Ga.

19, 19-20 (1) (596 SE2d 159) (2004). As a general rule, an

intervening act is reasonably foreseeable if it ensues “in the ordinary

course of events” or is “set in motion by the original wrong-doer.”

Jackson, 287 Ga. at 651 (2) n.4 (citation omitted). With regard to

when a result or consequence of a criminal or negligent act is

“reasonably foreseeable,” we have stated that a person

is not responsible for a consequence which is merely
possible, according to occasional experience, but only for
a consequence which is probable, according to ordinary
and usual experience. It is important to recognize that
“probable,” in the rule as to causation, does not mean
“more likely than not,” but rather “not unlikely”; or, more
definitely, such a chance of harm as would induce a
prudent man not to run the risk[.]

Johnson v. Avis Rent A Car System, LLC, 311 Ga. at 592 (citations

10
and punctuation omitted).6 In other words, “probable” means “such

a chance of harmful result that a prudent man would foresee” the

risk at issue here, i.e. the risk of serious injury or death. See id.

Applying these principles, we conclude that the evidence was

insufficient to authorize the jury to conclude that Bell’s failure to

provide proper parental care, as alleged by the State, was the

proximate cause of Caliyah’s death. 7 It is important to recognize at

the outset what this case is and what it is not. Based on the language

of the indictment, Bell could be found guilty of felony contributing

6 We note that while civil cases like Johnson v. Avis Rent A Car System,

LLC, can be instructive regarding the concept of proximate cause and the
related issues of foreseeability and probability, see Jackson, 287 Ga. at 654 (3),
they can be less helpful in terms of whether a particular set of facts meets the
standard, given the different burdens of proof involved.
7 With regard to Bell’s charge of felony contributing to the dependency of

a minor, the jury was instructed that “[a] person commits the offense of
contributing to the deprivation or dependency of a minor, or causing a child to
be placed in need of services when such person willfully commits an act or acts,
or willfully fails to act when such act or omission would cause a minor to be a
adjudicated to be a dependent child.” Jurors were also told that “dependent
child” means “a child who has been abused or neglected and is in need of
protection of the court.” There is no evidence, however, that defense counsel
requested, or the trial court gave any instruction to jurors about, what
elements the State needed to prove to sustain a conviction for felony
contributing to the dependency of a minor, i.e., that the defendant’s acts or
omissions that created the dependency “resulted in the serious injury or death
of the child.” Nor were they given any instructions related to the issue of
proximate causation.
11
to the dependency of a minor if the evidence was sufficient for a

rational jury to find that Caliyah’s death was caused by or was the

reasonably foreseeable result of Bell’s failure to provide Caliyah

with proper parental care. The State attempted to show the required

causal connection under two theories.

Under the first theory, the State argued that Bell’s use of drugs

or her tolerance of drug use by others in the home contributed to

Caliyah’s death. But there was no evidence that Caliyah died from

the ingestion of drugs or that Bell’s drug use proximately caused her

death. Compare Williams v. State, 298 Ga. 208, 213 -214 (2) (b) (779

SE2d 304) (2015). Indeed, the State’s medical expert testified that

the immediate cause of Caliyah’s death was blunt force injuries to

her head. Although the evidence showed that Bell and McNabb used

methamphetamine the night before Caliyah’s death, it also showed

that Caliyah was fed and put to bed and that both of her parents

checked on her at 5:00 a.m. There was no evidence that as a

consequence of her drug use, Bell was unable to care for Caliyah or

was unable to wake up.

12
Nor was any evidence offered, either anecdotal or through

expert testimony, demonstrating that it was not merely possible, but

probable, that Bell’s tolerance of McNabb’s drug use would lead to

his violent conduct toward Caliyah. Compare Martin v Six Flags

Over Georgia II, L.P., 301 Ga. 323, 332 (II) (A) (801 SE2d 24) (2017)

(Gang attack at amusement park bus stop was reasonably

foreseeable where the evidence showed there had been multiple

incidents of gang disturbances in the amusement park and the

attack on the victim started in the amusement park.). And there was

no evidence presented that drug use, by itself, foretells violent acts

against children. Given the dearth of evidence presented at trial to

support the State’s first theory of Bell’s criminal responsibility, we

cannot say that the evidence was sufficient as a matter of

constitutional due process to authorize the jury to conclude that

Caliyah’s death by blunt force injuries was a reasonably foreseeable

consequence of either Bell’s or McNabb’s drug use. See Jackson v.

Virginia, 443 U. S. at 319 (III) (B). Compare Virger v. State, 305 Ga.

281, 289 (3) (824 SE2d 346) (2019) (Evidence that defendant failed

13
to seek medical attention for child after her co-defendant injured the

child was sufficient to authorize jury to find that defendant’s failure

to seek medical aid was a proximate cause of the child’s death.);

Johnson v. State, 292 Ga. 856, 857-858 (1) (742 SE2d 460) (2013)

(The jury could reasonably conclude the defendant’s criminal

negligence proximately caused the child victim’s death from

ingestion of methadone where the evidence showed the victim had

fallen ill for several hours before the defendant sought medical

attention and the defendant had previously given the victim crushed

prescription Xanax in his milk.).

The second basis for the State’s theory of Bell’s guilt was that

Caliyah’s death, even though directly caused by McNabb’s criminal

actions, was foreseeable because Bell failed “to provide proper

parental care” by choosing to live with McNabb, who had been

violent towards Bell. The question to be decided under this theory is

whether there was sufficient evidence to authorize the jury to

conclude that Caliyah’s death was a reasonably foreseeable

consequence of Bell’s decision to live with McNabb.

14
As stated above, proximate cause imposes liability for an act or

omission if there is no sufficient, independent, and unforeseen

intervening cause. And the doctrine of intervening cause provides

that there can be no proximate cause where an independent act or

omission of someone other than the defendant, which is

unforeseeable by the defendant and is itself sufficient to cause an

injury, intervenes between the defendant’s act or omission and the

injury. City of Richmond, v. Maia, 301 Ga. 257, 259 (1) (800 SE2d

573) (2017). See also Menzies v. State, 304 Ga. 156, 161 (II) (816

SE2d 638) (2018) (applying the concept of “intervening cause” in a

criminal case). Here, although it was undisputed that McNabb’s acts

were sufficient, by themselves, to cause Caliyah’s death, the State

attempted to show that his violent acts were not an intervening

cause of the victim’s death because they were foreseeable, and thus,

they did not break the chain of causation between Bell’s decision to

live with McNabb and Caliyah’s death. In support of this theory, the

State relied on evidence that McNabb had previously hit Bell and

Lester. There was, however, no evidence presented that McNabb

15
had ever physically abused or threatened to physically abuse his

children, and while evidence that McNabb had previously hit Bell

and Lester may have made McNabb’s violent act of crushing his

daughter’s skull possible, this evidence alone did not make the

occurrence of such abuse reasonably foreseeable. That is not to say

that knowledge of previous violence by another caregiver can never

make violence against another person foreseeable, only that, under

the unique facts of this case, the evidence presented to the jury was

insufficient to meet the standard of reasonable probability. To hold

otherwise would lead to the result that every parent who knows

their child’s other parent or caregiver had previously hit an adult

could be exposed to potential felony criminal liability for the

intervening criminal acts of the other person. In the absence of

evidence showing that McNabb’s violent conduct toward Caliyah

was reasonably foreseeable to Bell, we cannot say that the evidence

presented to the jury was sufficient to establish the required

proximate cause between Bell’s decision to live with McNabb and

the specific injuries that resulted in Caliyah’s death. See Morris v.

16
Baxter, 225 Ga. App. 186, 186-188 (483 SE2d 650) (1997) (affirming

grant of summary judgment to defendant in wrongful death case

because victim’s death, which resulted from a self-inflicted gunshot,

was not a foreseeable consequence of the defendant’s act of leaving

the rifle in his home where victim could access it, despite evidence

that the defendant knew the victim was depressed, knew she

suffered from diminished mental health, and knew the victim had

indicated that she was “bored with life”). Compare Brown v. State,

297 Ga. 685, 687-688 (2) (777 SE2d 466) (2015) (Evidence of

defendant’s acts of depriving victim of sustenance was found to be a

proximate cause of the victim’s death where the evidence showed

that the victim’s starvation severely affected his ability to heal from

the physical abuse he suffered at the hands of the defendant and

another); Bagby v. State, 274 Ga. 222 (552 SE2d 807) (2001)

(Evidence that the defendant left her boyfriend at home alone with

the victim and the victim died shortly after defendant’s return was

sufficient to support defendant’s conviction of contributing to the

delinquency of a minor where the evidence showed that the

17
defendant and her boyfriend used methamphetamine before the

defendant left home and the defendant knew that drug use “tended

to exacerbate” her boyfriend’s violent behavior, that her boyfriend

had previously threatened to harm the victim, and that her

boyfriend had previously hit and bitten the victim and beat the

victim about the face one week before her death.); Melancon v. State,

368 Ga. App. 340, 344-345 (1) (890 SE2d 113) (2023) (Evidence of

proximate cause in case involving the death of a child was found to

be sufficient where the evidence showed the defendant, the father of

the victim, knew the victim’s mother was abusing her, he interfered

to prevent the State’s investigation into the mother’s abuse of the

victim, and the victim later died from an intentionally inflicted

massive head trauma inflicted by her mother.).

The Court of Appeals cited three cases for its opposite

conclusion, but these cases, in fact, highlight the lack of evidence

establishing the causal connection between Bell’s conduct and

Caliyah’s death. The first case, Williams v. State, 298 Ga. 208,

involved a defendant who hid cocaine in a couch, within the reach of

18
a child who found the cocaine, ingested it, and died. In the second

case, B. L. M., 228 Ga. App. at 665 (1), the defendant abandoned a

child, leaving the child exposed to the elements and causing the

child’s death. In both of these cases, there was no intervening cause

of the victims’ deaths. The third case, Skaggs v. State, 278 Ga. at 19-

20 (1), is factually more similar to this one in that it involved an

intervening cause that produced injury to the victim. The victim in

Skaggs died after the defendant kicked him in the head with steel-

toed boots, causing the victim to fall to the ground, where he hit his

head on the concrete. We upheld Skaggs’ conviction for felony

murder predicated on the commission of an aggravated assault

because, even though the immediate cause of the victim’s death was

the injuries he suffered in the fall, “the fall itself was the direct and

immediate result of the blows administered by Skaggs” and “[t]he

only intervening force was gravity.” Id. at 20 (1). In each of these

cases, the victims’ deaths were caused by the defendants’ acts and

the consequence of death or injury was not just merely possible from

the defendants’ acts, but such consequence was probable. The risk

19
of the specific harm to Caliyah that resulted in her death as the

result of McNabb’s acts, was, in comparison, far less appreciable.

In summary, the evidence here showed that Bell went to sleep

one night, checked on Caliyah early the next morning, and went

back to sleep for four and one-half hours. The evidence further

showed that while Bell slept, McNabb committed a violent crime

that the State conceded was the direct and immediate cause of

Caliyah’s death. There was no evidence that Caliyah’s death was a

reasonably foreseeable consequence of Bell’s drug use or drug use in

the home by McNabb or others or that it was reasonably foreseeable

that McNabb would commit the horrific crimes that resulted in

Caliyah’s death. And there was no evidence presented that showed

Bell was a party to McNabb’s crimes, that she heard McNabb

striking Caliyah and did nothing to stop him, or that she refused to

provide Caliyah with potentially life-saving medical treatment.8 In

8 In fact, the prosecutor told jurors during closing argument that “[i]f

[Bell] had seen, if she had woken up and heard or seen McNabb beating on her
child, I bet you she would have run in there and got into it and tried to fight
off McNabb. I don’t think she would ever just sit and watch that happen.”
20
the absence of evidence from which a reasonable jury could infer that

that Bell’s conduct proximately caused Caliyah’s death, compare

Williams, 298 Ga. at 213, the evidence presented to the jury was

simply insufficient as a matter of constitutional due process to

support her conviction for felony contributing to the dependency of

a minor. Accordingly, the decision of the Court of Appeals is

reversed.

Judgment reversed. All the Justices concur, except Pinson, J.,
disqualified.

317 Ga. 519
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