In the Supreme Court of Georgia



                                                   Decided:      September 14, 2015


                         S15A1170. NOEL v. THE STATE.


       THOMPSON, Chief Justice.

       Appellant Rodney Noel appeals from the denial of his motion for new trial

which was filed after a jury found him guilty of charges of felony murder,

aggravated assault, aggravated battery and cruelty to a child in connection with

the death of Terrell Williams, his girlfriend’s nine-month-old child. On appeal,

appellant challenges the sufficiency of the evidence on numerous grounds and

claims that the trial court erred by refusing to charge the jury on the affirmative

defenses of accident and justification.1 For the reasons set forth below, we


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          The crimes occurred on March 26, 2007 and April 1, 2007. Appellant was indicted
on April 6, 2007, by a Fulton County grand jury on charges of malice murder, three counts
of felony murder, aggravated assault, aggravated battery, and cruelty to children. A jury
found him guilty of all counts except malice murder on September 15, 2009. With the
agreement of the parties, the trial court that same day sentenced appellant to concurrent terms
of life in prison on each of the felony murder counts and determined that the underlying
offenses of aggravated assault, aggravated battery, and cruelty to children merged into the
respective felony murder verdicts. Appellant filed a motion for new trial on September 22,
2009, and amended motions for new trial on January 25, 2013, and April 19, 2013. These
motions were denied by the trial court on July 30, 2013, following a hearing. Appellant’s
notice of appeal was filed on August 30, 2013. The case was docketed in this Court for the
affirm the judgments of conviction but remand the case for resentencing.

      The evidence presented at trial authorized the jury to find that a few days

before the crimes, appellant, Terrell, and Terrell’s mother, Crystal Williams,

drove to Atlanta from Chicago so that appellant could renew his prescriptions

for pain medications prescribed for a back injury. Because they arrived late in

Atlanta, appellant missed his Friday doctor’s appointment and they checked into

a hotel for the weekend. Terrell appeared healthy and alert and behaved

normally during the trip to Atlanta and throughout the weekend.

      On Monday morning, Williams played with Terrell in the hotel room

while appellant went to his re-scheduled doctor’s appointment. Laverne Pickett,

a hotel maid who saw Williams and Terrell that morning, testified that Terrell

was alert and happy. When appellant returned from his appointment, Williams

fed Terrell approximately six ounces of formula from a bottle and gave him ice

cream, all of which he ate in a normal manner. Williams then left Terrell with

appellant so that she could do laundry for the trip home. Shortly thereafter,

Brenda Sanders, a hotel maid, heard Terrell crying out loudly. Pickett, who was

cleaning the room next to appellant’s, heard appellant scream at Terrell to “shut

April 2015 term and submitted for decision on the briefs.

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up,” then she heard a thump and Terrell quieted down. Pickett knocked on

appellant’s door to see if everything was alright, and appellant, who cracked

open the door, told her everything was fine. Pickett looked around the door and

saw Terrell in a car seat. A short time later, another witness saw appellant

crouching over Terrell and screaming for help. That individual called 911 and

relayed instructions to appellant so that he could perform CPR. When medical

personnel arrived, Terrell was unresponsive and his eyes were fixed and dilated.

      Terrell died several days later after being removed from life support. An

autopsy revealed the cause of death was a combination of brain injuries that

resulted in swelling of the brain and hemorrhages of the lining and surface of the

brain. The autopsy further revealed that Terrell had bruises consistent with

being grabbed, held, or swung around by the thigh and he had hemorrhaging of

the optic nerve and retinal hemorrhages, too many in number to count. Experts

for both the State and the defense agreed that the blunt impact head injuries

Terrell suffered were unlikely to have been caused by accident as there were

multiple impacts caused by a substantial amount of force. The State’s experts

testified that the only type of force that could have caused the victim’s injuries

was a rapid, repetitive, and violent shaking coupled with impact and that such

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injuries could not have been caused by jostling, choking, the administration of

CPR, or disease. They also testified that the injuries Terrell received would have

rendered him unconscious and unable to eat almost immediately.

      Appellant initially told police that he heard Terrell choking and found him

unresponsive, so he shook him, ran cold water over him in the shower, placed

him over the air conditioner, and tried to perform CPR. At the hospital,

however, appellant denied shaking Terrell and explained that he had merely

“jostled” the car seat with Terrell in it. Appellant testified at trial, where he

consistently denied that he had shaken Terrell or engaged in any conduct

causing his death.

      1. In several enumerations of error, appellant claims the evidence was

insufficient to convict him of the charged crimes, citing to conflicting witness

testimony and expert evidence questioning the validity of “shaken baby

syndrome.” It is, however, the role of the jury “to resolve conflicts in the

evidence and to determine the credibility of the witnesses, and the resolution of

such conflicts adversely to the defendant does not render the evidence

insufficient.” Allen v. State, 288 Ga. 263, 264 (1) (702 SE2d 869) (2010)

(citation and punctuation omitted). Viewed in the light most favorable to the

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verdict, we find the evidence was sufficient to enable a rational jury to find

appellant guilty beyond a reasonable doubt of all the offenses for which he was

convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)

(1979); Walker v. State, 216 Ga. 474 (117 SE2d 156) (1960).

      2. Although we conclude the evidence was sufficient to support the jury’s

verdicts, in reviewing the record we note an error in the trial court’s sentence.

The jury found appellant guilty of the three charges of felony murder as well as

of the three underlying felonies of aggravated assault, aggravated battery, and

cruelty to children. In imposing its sentence, the trial court merged the verdicts

on the underlying offenses into their respective felony murder verdicts and

sentenced appellant to a concurrent term of life in prison for each of the jury’s

felony murder verdicts. What the trial court and the parties failed to recognize,

however, is that a defendant found guilty of the felony murder of the same

victim through the commission of more than one felony may only be sentenced

on one felony murder charge and the remaining felony murder charges stand

vacated by operation of law. See Leeks v. State, 296 Ga. 515, 524 (7) (769

SE2d 296) (2015) (second felony murder count vacated by operation of law

because felony murder convictions involved the same victim); Malcolm v. State,

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263 Ga. 369, 372 (4) (434 SE2d 479) (1993). In addition, because in this case

two of the jury’s felony murder verdicts stood vacated by operation of law, there

was nothing into which two of the separately charged non-murder counts could

merge. See Hulett v. State, 296 Ga. 49, 53 (2) (766 SE2d 1) (2014). See also

Malcolm, supra, 263 Ga. 373 (5) (holding that once a felony murder count is

vacated, underlying felony cannot merge into the felony murder count). These

oversights resulted in appellant being sentenced improperly to three life terms

in prison for the murder of one victim and left unresolved sentences for two of

the non-murder felonies of which appellant was legally convicted. See Hulett,

supra at 53 (2).

      Accordingly, appellant’s sentences are void and we remand for

resentencing. See Cowart v. State, 294 Ga. 333, 336 (2) (751 SE2d 399) (2013)

(holding that decision regarding which felony murder verdicts shall be deemed

vacated, which may affect other sentencing decisions, is left to the discretion of

the trial court on remand). In doing so, we remind the trial court and the parties

that on resentencing, a legal conviction may be entered on only one felony

murder verdict, the underlying felony charged in that count will merge into the

felony murder conviction as a matter of law, the remaining felony murder

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verdicts will stand vacated by operation of law, and a determination whether the

remaining non-murder felonies merge as a matter of fact into the felony murder

conviction will need to be made.

       3. Appellant contends the trial court erred by failing to give the jury

requested instructions on the defenses of accident and justification which he

contends were authorized by evidence of his statement at the scene of the crimes

that he shook Terrell after he heard him choking.2 See OCGA § 16-2-2; OCGA

§ 16-3-20 (6).

       Assuming, without deciding, that appellant’s pre-trial statement was

sufficient to support the giving of the requested charges, see Booker v. State,

247 Ga. 74, 74 (274 SE2d 334) (1981), we conclude the trial court’s decision

not to give these charges does not require reversal. See O’Connell v. State,

2015 Ga. LEXIS 491. The indictment in this case charged appellant with

various crimes based on his commission of acts against Terrell sufficiently



       2
          Although appellant argues that these charges should have been given because each
represented his sole defense, his arguments on appeal and the trial transcript demonstrate that
his strategy at trial was to defend against the charges by denying that he committed any act
that caused Terrell’s injuries. In fact, the transcript is replete with instances where defense
counsel made it clear to the court, and ultimately to the jury in closing argument, that
appellant’s sole defense at trial was one of lack of causation.

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severe to injure Terrell’s brain, causing his death. At trial, appellant defended

against these charges by denying any involvement in Terrell’s death and

testifying that he never shook Terrell. Instead, appellant presented evidence and

argument suggesting that Williams inflicted the fatal injuries while appellant

was at his doctor’s appointment. Although appellant told an officer that he

shook Terrell, appellant immediately disavowed this statement when at the

hospital he denied shaking Terrell and explained to police that he had merely

“jostled” his car seat. Appellant then persistently denied at trial that he had

shaken Terrell or engaged in any conduct, culpable or otherwise, that could have

caused his injuries. Appellant’s own trial testimony, therefore, undermined the

affirmative defenses of homicide by accident or justification as those defenses

are legally defined by statute. Moreover, even assuming the jury believed

appellant’s pre-trial statement and not his subsequent denials, given the

undisputed expert evidence regarding the number and severity of Terrell’s

injuries, the amount of force required to inflict those injuries, and that such

injuries could not have been inflicted by accident, we find it unlikely that the

jury would have found in his favor on either affirmative defense. See Davis v.

State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998) (accident is an affirmative

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defense whereby a defendant must show that she acted without criminal intent,

was not engaged in a criminal scheme, and that her action did not show an utter

disregard for the safety of others); Mills v. State, 287 Ga. 828, 832 (4) (700

SE2d 544) (2010) (death caused by criminal negligence is not an accident).

Considering the record as a whole and weighing the evidence and defenses

raised by appellant at trial as we believe reasonable jurors would, we conclude

that it is highly probable the trial court’s decision not to charge the jury on

accident and justification did not contribute to the jury’s verdict. Accordingly,

any possible error was harmless.

      Judgment of conviction affirmed and case remanded for resentencing. All

the Justices concur.




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