Montgomery v. State

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official text of the opinion.

In the Supreme Court of Georgia

Decided: December 9, 2025

S25A1017. MONTGOMERY v. THE STATE.

LAGRUA, Justice.

Appellant Sherrod Montgomery appeals his conviction for

felony murder related to the beating death of Ricky Cox. 1 On appeal,

Montgomery argues that his conviction should be reversed based on

the following contentions: (1) the trial court erred by entering a

conviction for felony murder predicated on aggravated battery,

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1 Cox died from his injuries on May 21, 2021. On September 1, 2021, a

Carroll County grand jury indicted Montgomery for the following counts:
malice murder (Count 1); felony murder predicated on aggravated battery
(Count 2); aggravated assault (Count 3); and aggravated battery (Count 4).
Montgomery was tried from January 9 to 13, 2023, and the jury found
Montgomery not guilty of malice murder but guilty on the remaining counts.
The trial court sentenced Montgomery to life with the possibility of parole on
Count 2 (felony murder) and merged the remaining counts with the felony
murder conviction. Montgomery filed a timely motion for new trial, which he
later amended through new counsel on September 15, 2024. After holding an
evidentiary hearing on the motion for new trial, the trial court denied the
motion on September 30, 2024. Montgomery filed a timely notice of appeal to
this Court, and the case was docketed to the August 2025 term and orally
argued on August 26.
which requires malice, after the jury rejected the essential element

of malice by rendering a not guilty verdict on malice murder; and (2)

the trial court plainly erred by instructing the jury that it could find

felony murder predicated on aggravated battery without finding

malice. For the reasons that follow, we affirm Montgomery’s

conviction and sentence.

The evidence presented at trial demonstrates that, around

midnight on May 20, 2021, law enforcement officers were called to a

residence in Carroll County. The residence was owned by Donnie

Green and was “generally known” as “kind of a hangout spot where

people go and drink, play cards, just hang out, socialize.” When law

enforcement officers arrived at Green’s house, they encountered

three people in the living room—brothers Jesse and Charles Dallas

and Lisa Miley, Jesse’s ex-girlfriend.2 A fourth person—later

identified as Ricky Cox—was lying unresponsive on the couch in the

living room with “a swollen left eye” and “swelling of his face.” Law

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2 The record reflects that Jesse lived with Green at this house, but Green

was not at home on the night in question.
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enforcement officers learned from Jesse and Charles that Cox had

been involved in a physical altercation with Montgomery earlier

that night and that Montgomery left Green’s house immediately

after the incident.

According to several witnesses, on the night of May 20,

Montgomery, Cox, Jesse, and Charles were playing a game of cards

in the kitchen of Green’s house. Cox was visibly intoxicated at the

time. During the second hand of the game, Cox refused to play and

accused Montgomery—who was the dealer of that hand—of cheating

by refusing to “show his cards.” Jesse, Charles, and Montgomery

finished playing the hand without Cox, and then, Montgomery “went

across the table and hit [Cox],” who fell to the floor and “didn’t get

up.” 3 Montgomery walked over to Cox and continued hitting and

kicking him while he was “still on the floor.” Jesse tried to stop

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3 At trial, conflicting testimony was given about whether Cox was armed

with a pocketknife at the time of this incident. One witness testified that she
saw Cox reach in his pocket for a pocketknife, and another said he knew Cox
to carry a pocket-knife and saw him with a “folded” pocketknife when he was
laying on the floor. However, several other eyewitnesses said they had never
known Cox to carry a pocketknife, and he did not have a knife on him or
threaten anyone with a knife that night.
3
Montgomery, and after a few minutes, Montgomery stopped striking

Cox and left Green’s house. Cox remained on the floor, “breathing

hard.” Jesse and Charles carried Cox into the living room with the

assistance of Carleton Nunn, who lived in the shed behind Green’s

house, and laid Cox on the couch. Around this time, Miley arrived at

Green’s house, and after noting that Cox was bleeding from his

mouth and seemed to be unconscious, she called 911 and reported

the incident. Law enforcement officers arrived shortly thereafter,

and Cox was transported to the hospital, where he later died from

his injuries. 4 The next morning, Montgomery was arrested for Cox’s

murder.

1. In his first enumeration of error, Montgomery contends that

he is entitled to a new trial because the jury’s verdicts in this case

were repugnant, relying on McElrath v. State, 308 Ga. 104, 111–12

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4 At trial, the medical examiner testified that Cox had areas of bruising

on his face, scalp, and upper body; internal bleeding; 15 fractured ribs; and 4
lacerations of the heart. The medical examiner testified that the cause of death
was “blunt force injuries related to a physical altercation,” and the manner of
death was homicide.

4
(2020). As noted above, Montgomery was charged with malice

murder (Count 1), felony murder predicated on aggravated battery

(Count 2), aggravated assault (Count 3), and aggravated battery

(Count 4) based on Montgomery striking and kicking Cox,

ultimately leading to Cox’s death. The jury found Montgomery not

guilty of malice murder, but guilty of felony murder, aggravated

assault, and aggravated battery. On appeal, Montgomery argues

that, because the jury found him not guilty of malice murder (Count

1), the jury could not legally or logically have found him guilty of

felony murder predicated on aggravated battery (Count 2) because

malice murder and aggravated battery share the same essential

element of malice and Montgomery could not simultaneously have

acted without malice in causing the death of Cox and with malice in

committing the aggravated battery of Cox. We disagree.

“Repugnant verdicts occur when, in order to find the defendant

not guilty on one count and guilty on another, the jury must make

affirmative findings shown on the record that cannot logically or

legally exist at the same time.” Caldwell v. State, 317 Ga. 507, 511

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(2023) (quotation marks omitted). We have held that, when verdicts

are repugnant, the guilty verdict must be vacated. See McElrath v.

State, 319 Ga. 539, 540 (2024) (noting that the United States

Supreme Court’s decision in McElrath v. Georgia, 601 US 87, 96

(2024), requires only vacating the guilty verdict).

Here, the jury’s verdicts are not repugnant because they can

“logically co-exist.” Caldwell, 317 Ga. at 511. We have held that

“[t]here is an important difference between the ‘malice’ required for

malice murder and the ‘malice’ required for aggravated battery.”

Pope v. State, 286 Ga. 1, 2–3 (2009). “The former is the unlawful

intention to kill without justification, excuse or mitigation,” and

“[t]he latter is an actual intent to cause the particular harm

produced (that is, bodily harm) without justification or excuse.” Id.

at 3 (quotation marks omitted). Thus, a defendant “might have had

malice in the form of the intent to cause bodily harm with no malice

in the form of the intent to kill, and yet death might still occur; in

such a case the defendant would be guilty of felony murder but not

malice murder.” Id. So here, the jury could have found that

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Montgomery intended to seriously injure Cox (and thus that the

malice element of aggravated battery was satisfied) but did not

intend to kill him (and thus that the malice element of malice

murder was not satisfied). Because the jury’s verdicts could logically

co-exist in that way, they were not repugnant. See id.

Moreover, as noted above, repugnant verdicts require the jury

to have made—in rendering its guilty and not guilty verdicts—

“affirmative findings shown on the record that cannot logically or

legally exist at the same time.” Caldwell, 317 Ga. at 511. And the

record here does not reflect any affirmative findings by the jury as

to its rationale in returning a not guilty verdict on the malice murder

count and a guilty verdict on the felony murder predicated on

aggravated battery count. Compare Guajardo v. State, 290 Ga. 172,

174 (2011) (holding that repugnant verdicts require reversal “in the

rare instance where, instead of being left to speculate as to the jury’s

deliberations, the appellate record makes transparent the jury’s

rationale”). In the absence of such affirmative findings, determining

the basis for the jury’s not guilty verdict on the malice murder count

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and guilty verdict on the felony murder predicated on aggravated

battery count “would be based on either pure speculation, or would

require inquiries into the jury’s deliberation that the courts

generally will not undertake.” Feder v. State, 319 Ga. 66, 69 (2024)

(quotation marks omitted). See also State v. Owens, 312 Ga. 212,

216–17 (2021) (noting that “inconsistent verdicts”—which occur

“when a jury in a criminal case renders seemingly incompatible

verdicts of guilty on one charge and not guilty on another”—are

permitted to stand “because the jury’s rationale is not apparent from

the record and courts generally are not permitted to make inquiries

into the jury’s deliberation process”). “We cannot know and should

not speculate why a jury acquitted on one offense and convicted on

another offense. The reason could be … compromise or lenity.”

Feder, 319 Ga. at 69 (quotation marks omitted). Likewise, here, we

do not know and will not speculate as to why the jury found

Montgomery not guilty of malice murder, but guilty of felony murder

predicated on aggravated battery. Accordingly, Montgomery’s

repugnant verdict claim fails.

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2. Montgomery next contends that the trial court committed

plain error by instructing the jury that, to prove felony murder, the

State did not have to show that Montgomery acted with malice. In

furtherance of this claim, Montgomery argues that, while such an

instruction is generally correct, it was erroneous here because the

predicate felony of aggravated battery requires proof of malice. We

see no plain error.

During the charge conference in this case, the trial court

advised the parties that it would charge the jury utilizing the

pattern jury instructions, and the parties raised no objection.

Following closing arguments, the trial court so instructed the jury,

specifically charging, in relevant part, the following with respect to

malice murder: “The killing must have been done with malice to be

murder. Malice, as the term is used here, is not necessarily ill will

or hatred. Rather, it is the unlawful intent to kill without

justification.” The trial court then distinguished felony murder from

malice murder, while also incorporating the predicate offense of

aggravated battery, charging the jury, in relevant part, as follows:

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For felony murder, the State must prove that the
Defendant caused the death of another person by
committing a felony. The State does not have to show that
the Defendant acted with malice to prove felony murder.
Aggravated battery is a felony which I will define for you
shortly. You may find the Defendant guilty of felony
murder if you believe that he caused the death of another
person by committing the felony of aggravated battery
regardless of whether he intended … death to occur.

Thereafter, the trial court instructed the jury on the material

elements of aggravated battery, charging, in relevant part, as

follows:

For aggravated battery, the State must prove that the
Defendant one, maliciously caused bodily harm to
another person, two, by rendering a part of that person’s
body useless.… In deciding whether or not the Defendant
acted maliciously … understand that malice is not ill will
or hatred. Malice, in this context, means an intent to
cause the resulting bodily harm without justification or
excuse. Malice also means willfully doing an act while
aware of a strong likelihood that that particular bodily
harm may result.

On appeal, Montgomery concedes that he did not object to the

jury instructions at trial, so we review this alleged instructional error

for plain error only. See State v. Kelly, 290 Ga. 29, 32 (2011)

(“[U]nder OCGA § 17-8-58(b), appellate review for plain error is

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required whenever an appealing party properly asserts an error in

jury instructions.”).

“To prevail on plain-error review, an appellant must show that

the alleged instructional error was not affirmatively waived; was

clear and obvious, rather than subject to reasonable dispute; likely

affected the outcome of the trial; and seriously affected the fairness,

integrity, or public reputation of judicial proceedings.” Bowdery v.

State, 321 Ga. 890, 898 (2025) (quotation marks omitted). “If one

prong of the plain error test is not satisfied, we need not address the

other prongs of the test.” Baker v. State, 319 Ga. 456, 462 (2024).

“Satisfying this high standard is difficult, as it should be.” Id.

(quotation marks omitted).

To that end, it is not enough in the plain-error context for
an appellant to demonstrate that a trial court committed
actual legal error in charging the jury; rather, the jury
instruction in question must have an obvious defect rather
than a merely arguable defect. This means that, to show
clear and obvious error, an appellant must cite to
controlling authority or to the unequivocally clear words of
a statute or rule that plainly establish that the trial court
erred.

Bowdery, 321 Ga. at 898–99 (quotation marks omitted).

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On appeal, Montgomery argues that the trial court charged the

jury that it did not have to find malice for felony murder, but because

the underlying felony of aggravated battery required proof of

“malice,” it effectively instructed the jury that the felony murder

charge did not require proof of the requisite criminal intent to commit

the underlying felony. He contends that this instructional error was

clear and obvious because, to obtain a conviction, the State is

required to prove every element of the crimes charged beyond a

reasonable doubt, and proving the offense of felony murder requires

proof of the elements of the predicate felony. While the trial court’s

jury instruction may have been somewhat confusing in this case and

a better instruction would have explicitly explained the differences in

the malice standards, we disagree that the trial court clearly or

obviously erred in giving the jury instructions here.

To evaluate whether a trial court plainly erred in giving the jury

instructions, “we read and consider the instructions as a whole.”

Holloway v. State, 320 Ga. 653, 659 (2025) (quotation marks omitted).

And, after considering the trial court’s jury instructions as a whole,

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we conclude that the trial court (1) properly instructed the jury as to

the different meanings of “malice” in the contexts of malice murder

and aggravated battery, see Pope, 286 Ga. at 2–3; (2) properly

instructed the jury that felony murder does not require proof of

malice as that term is defined for malice murder, but does require

proof of the elements of the predicate offense, aggravated battery, see

Burley v. State, 316 Ga. 796, 803 (2023) (“As this Court has explained,

the main difference between felony murder and malice murder is that

felony murder does not require proof of malice or intent to kill.”); (3)

properly instructed the jury that it was required to consider the

predicate offense of aggravated battery and then properly defined

that offense, see OCGA § 16-5-24(a)5; and (4) properly instructed the

jury as to the State’s burden of proof in order to find Montgomery

guilty of aggravated battery, see Burley, 316 Ga. at 804 (holding that

the State was required to prove beyond a reasonable doubt that the

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5 OCGA § 16-5-24(a) provides that “[a] person commits the offense of

aggravated battery when he or she maliciously causes bodily harm to another
by depriving him or her of a member of his or her body, by rendering a member
of his or her body useless, or by seriously disfiguring his or her body or a
member thereof.”
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appellant committed the predicate offense charged in the

indictment).

Having evaluated the disputed felony murder charge in the

context of the jury instructions as a whole, we conclude that

Montgomery has failed to show that the trial court committed clear

or obvious error in charging the jury in this case. See Sauder v. State,

318 Ga. 791, 804 (2024) (concluding that, “when evaluated in the

context of the jury charge as a whole, the trial court’s failure to

expressly instruct” using the language the appellant suggests “was

not a clear and obvious error beyond reasonable dispute”). And, thus,

we need not analyze the remaining prongs of the plain-error

standard. See Walton v. State, ___ Ga. ___ (2025), S25A0794, slip op.

at 18 (Ga. Aug. 26, 2025) (“[T]his Court need not analyze all prongs

of the plain error standard where the appellant fails to establish any

one of them.”). Therefore, this final claim also fails.

Judgment affirmed. All the Justices concur.

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