Eubanks v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.



In the Supreme Court of Georgia



                                                   Decided: October 24, 2023


                      S23A0519. EUBANKS v. THE STATE.


       PINSON, Justice.

       Jessica Eubanks lived with her boyfriend, Shawn Hughes, and

Shawn’s sister, Amy Hughes, who had severe developmental disa-

bilities. Eubanks used heroin and methamphetamine and kept a

large supply of heroin in the home. One evening when Shawn was

out, Eubanks invited two people to the home to buy heroin. During

the transaction, which she conducted in the main part of the home,

some of the drug spilled “all over the place” and Eubanks tried to

clean it up. Then she went out, leaving Amy home alone. The next

morning Amy was found dead of heroin toxicity. After a jury trial,

Eubanks was convicted of felony murder. 1



       1 Amy died on the night of June 22-23, 2019. On March 9, 2020, a Forsyth
      On appeal, Eubanks contends that (1) the evidence was insuf-

ficient to support her convictions for felony murder because the

predicate felony—possession of a controlled substance with intent to

distribute—was not inherently dangerous and did not proximately

cause Amy’s death; (2) the trial court erred by failing to instruct the

jury about circumstantial evidence, intent, accident, proximate

cause, criminal negligence, and the requirement that a predicate

crime for felony murder be inherently dangerous; (3) the trial court

should have granted her special demurrer because the indictment

lacked enough detail about the manner in which her possession or

distribution of heroin caused Amy’s death; (4) the trial court erred



County grand jury indicted Eubanks for felony murder predicated on posses-
sion of heroin with intent to distribute (Count I), possession of heroin with in-
tent to distribute (Count II), felony murder predicated on possession of heroin
(Count III), possession of heroin (Count IV), and two counts of possession of
drug related objects (Counts V and VI).Eubanks pled not guilty and proceeded
to a jury trial, which was held from August 9 through August 13, 2021. Eu-
banks was convicted on all counts. She was sentenced to life in prison on Count
I and 12 months in prison on each of Counts V and VI, all to be served concur-
rently. The remaining counts merged with Count I or were vacated by opera-
tion of law. Through new counsel, Eubanks filed a timely motion for new trial
on August 13, 2021, which she amended on August 4, 2022. The trial court
denied the motion on October 17, 2022.Eubanks filed a timely notice of appeal
on October 28, 2022. The case was docketed to the April 2023 term of this Court
and orally argued on May 17, 2023.
                                       2
by admitting a hearsay statement in which Amy said that Eubanks

was “mean” to her; and (5) the trial court erred by admitting a col-

lection of videos showing Amy in life.

     Although Eubanks’s conviction tests the limits our felony-mur-

der statute places on that offense, we conclude based on our prece-

dent and the unusual facts of this case that the evidence was suffi-

cient to authorize her conviction. Eubanks’s possession of heroin

with intent to distribute was dangerous to human life under the cir-

cumstances of this case because it was foreseeable that keeping a

large amount of a deadly drug in a home where a highly vulnerable

person lived, and engaging in drug transactions in areas that person

could freely access, could lead to that person being fatally exposed

to the drug. See Williams v. State, 298 Ga. 208 (779 SE2d 304) (2015)

(jury was authorized to find that defendants who kept supply of

crack cocaine “inside a hole in the living room sofa” that their young

child could access created a foreseeable risk of death and thus was

authorized to find defendants guilty of felony murder based on pos-

session of cocaine with intent to distribute after the child ingested

                                  3
the cocaine and died). The evidence authorized the jury to conclude

that just such an exposure, while Amy was left home alone for hours

with access to where Eubanks had spilled the heroin during a drug

transaction, was the proximate cause of her death. And the evidence

also authorized the jury to conclude that Amy’s death was caused in

the commission of the predicate felony, because on the night Amy

was fatally exposed to the heroin, Eubanks still constructively pos-

sessed the drug in the home with the intent to distribute it.

     Eubanks’s remaining claims fail, too. The trial court did not err

by failing to give the jury instructions that Eubanks now urges, be-

cause those instructions either were not warranted in this case or

addressed points of law that were substantially covered by other in-

structions. The indictment was constitutionally sufficient because it

informed Eubanks of the facts she must meet at trial—that she

caused Amy’s death by exposing her to heroin on June 23, 2019, in

the course of either possessing the drug or distributing it—and al-

lowed her to intelligently prepare her defense. Any error in admit-



                                  4
ting Amy’s hearsay statement was harmless because it was cumula-

tive of other evidence and did not support the State’s theory of the

case. Finally, the “in-life” videos of Amy were probative evidence of

her vulnerable state, and their probative value was not substan-

tially outweighed by any danger of unfair prejudice.

     Because Eubanks’s claims of error fail, we affirm her convic-

tions and sentence.

     1. Amy was a 40-year-old woman with Down syndrome and an

IQ of 42. She needed help with certain basic life activities and was

not able to live on her own, so she lived with her brother, Shawn.

Shawn’s girlfriend, Eubanks, also lived in their home.

     On the morning of June 22, 2019, Shawn went to the home of

some friends, the Millers, to help care for their children while they

were away. The plan was for Shawn to stay at the Millers’ house

from 9:00 a.m. on June 22 until around noon on June 23. Eubanks

would stay home with Amy on the morning of June 22, and then in

the afternoon would bring Amy to the Millers’ house, where Amy

would stay the night with Shawn.

                                 5
     But Eubanks never brought Amy to the Millers’ home. Instead,

Eubanks stayed at Shawn’s home with Amy throughout the after-

noon of June 22 and into the evening. In the early evening, Eubanks

invited a couple, Paul and Crystal (whose last names were not

given), to the home to buy some heroin from her. While Paul and

Crystal were in the common area of the home, Eubanks went into

the bathroom to inject some heroin herself. When she came out, Paul

had “the whole bundle” of Eubanks’s heroin in his hand—much more

than he and Crystal had agreed to buy. Eubanks fought with Paul,

and the bag of heroin broke. The drug “went flying all over the

place.” Eubanks tried to clean it up.

     That same evening, a next-door neighbor, Matthew Rogers,

went over to Shawn’s house to let him know that Shawn’s dog was

running loose in the rain. Rogers could see through a glass panel on

the front door that the light was on in the living room and that pa-

pers were spread out on the floor in an unusual pattern. Nobody an-

swered the door when Rogers first knocked, but Rogers saw someone

poke their head out from the hallway, and then the lights went out.

                                  6
Rogers returned to his own home and contacted Shawn, who told

him that he (Shawn) was not home but that Eubanks was. Rogers

then returned to the Hugheses’ home at around 10:30 or 11:00 p.m.,

with his girlfriend, Michelle Clark, to try to return the dog. This

time, Eubanks answered the door. Rogers testified that Eubanks

was speaking in a “soft,” “dreamy” tone and that her eyes were

glassy. He returned the dog and then he and Clark went back to

their own house.

     Later on the night of June 22, Eubanks left to join Shawn at

the Millers’ home. She did not bring Amy with her. When she ar-

rived, she told Shawn that Amy was asleep and that she had not

wanted to wake her. She also told Shawn about the altercation with

Paul and Crystal, and that some drugs had been “spilled on the ta-

ble,” but she had “cleaned it all up.” Shawn told Eubanks she had to

go home to be with Amy. Shawn then fell asleep on the Millers’ couch

while Eubanks was still there.

     The next morning, on June 23, Shawn woke up at the Millers’

house to find that Eubanks was there, without Amy. He did not

                                 7
think Eubanks had ever left, but Eubanks said later that she went

home and then came back before Shawn woke up. The two of them

waited for the Millers to come home, and then returned to Shawn’s

house. When they got home, Shawn found Amy lying on the floor of

her room. Her color “wasn’t good,” she was not breathing, and she

was unresponsive. Shawn called 911, but he testified that he knew

Amy was already dead.

     At around 1:00 p.m., Forsyth County Sheriff’s deputies were

dispatched to the Hughes home. They found Amy lying on her back,

unresponsive and with no pulse. There was no evidence of trauma

to Amy’s body and no immediate indication of how she had died.

     One of the deputies interviewed Eubanks. Eubanks seemed

nervous and emotional. She told the deputy that she had last seen

Amy the previous evening, before she went to the Millers’ house, and

then again when she returned later that night (after Shawn fell

asleep) between midnight and 1:00 a.m. Eubanks said that Amy had

been complaining of dizziness. The deputies concluded that Amy had

died of natural causes and left after 15 or 20 minutes. The coroner

                                 8
on the scene, however, requested an autopsy given Amy’s relatively

young age and her sparse medical history.

     About an hour later, the deputies were dispatched back to

Shawn’s house for a domestic disturbance. They found Eubanks and

Shawn arguing in the front yard. On this second call, Eubanks’s de-

meanor was quite different. She seemed paranoid, could not sit still,

and continually brushed her hair out of her face. Deputies believed

she was under the influence of drugs.

     Eubanks consented to a search of her room for drugs or drug

paraphernalia. Deputies found syringes, spoons, and a powdery sub-

stance wrapped in foil. The spoon had a residue on it that was later

identified as heroin. Eubanks acknowledged that she used heroin

and methamphetamine, but she denied using any drugs that day.

The deputies did not make any arrests. However, one of the deputies

made a second request for an autopsy after seeing Eubanks’s

strange behavior and hearing reports that Amy had complained that

Eubanks was “mean” to her.

     That same day, Shawn asked Eubanks to move out of his

                                 9
house. She went to stay with her ex-husband, Kelly Durden, for a

few days. Right after Durden picked her up, Eubanks told him about

the night Amy died. Eubanks told Durden that “she had bought a

large quantity of heroin to resell to make some of Shawn’s money

back that she had been taking out of his account little by little.” She

described the altercation with Paul and Crystal, and she told him

she thought that Amy had eaten some of the heroin that she had

spilled during the struggle—that she had tried to clean it up, but

she “kept insisting that she was pretty sure that’s what happened.”

Durden contacted Shawn and told him that if Amy’s autopsy re-

vealed the presence of any toxins, he “might have some information.”

     About a week after Amy died, Shawn’s next-door neighbors,

Rogers and Clark, along with another friend, went over to Shawn’s

house to help Shawn clean up and remove Eubanks’s belongings.

Among Eubanks’s things, they found a black bag containing needles,

a powder substance, and other drug paraphernalia, and Shawn re-

ported these findings to the police. The powder substance was later

determined to be heroin.

                                  10
     Several weeks later, the toxicology report from Amy’s autopsy

showed that her cause of death was heroin toxicity. It was undeter-

mined from the toxicology report how much heroin Amy took or how

it got into her system. Police told Shawn, who referred them to Kelly

Durden. Durden, in turn, recounted to police Eubanks’s story about

the attempted drug deal with Paul and Crystal and the spilled her-

oin. Eubanks was arrested and charged with Amy’s death.

     2. Eubanks contends that the evidence was insufficient as a

matter of constitutional due process to support her conviction for fel-

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

SCt 2781, 61 LE2d 560) (1979). We evaluate a due process challenge

to the sufficiency of the evidence by viewing the evidence presented

at trial in the light most favorable to the verdicts, and asking

whether any rational trier of fact could have found the defendant

guilty beyond a reasonable doubt of the crimes of which she was con-

victed. See Peacock v. State, 314 Ga. 709, 714 (2) (b) (878 SE2d 247)

(2022). The “resolution of conflicts or inconsistencies in the evidence,

credibility of witnesses, and reasonable inferences to be derived from

                                  11
the facts” are left to the jury. Perkins v. State, 313 Ga. 885, 891 (2)

(a) (873 SE2d 185) (2022) (citation and punctuation omitted).

     Eubanks’s contentions about sufficiency center on certain lim-

itations on felony murder related to causation and foreseeability,

which are grounded in our felony-murder statute and our decisions

construing and applying it. To address her contentions, we first re-

view that law, and then we apply it to her case.

     (a) Legal Principles

     A person commits felony murder when, “in the commission of

a felony, he or she causes the death of another human being irre-

spective of malice.” OCGA § 16-5-1 (c). From this statutory language,

our decisional law has identified certain related prerequisites the

State must establish to convict a defendant of felony murder. Eu-

banks’s sufficiency arguments touch on three of these: First, the

predicate felony the defendant committed must be one from which

it was reasonably foreseeable that death could result. We have de-

scribed this as a requirement that the predicate felony was “inher-

ently dangerous.” Second, the death must have been the probable or

                                  12
natural consequence of the defendant’s conduct, a concept known as

“proximate cause.” Third, in keeping with the statutory language,

the death must have been caused “in the commission of” the predi-

cate felony. Because our decisions have sometimes commingled

these related-but-distinct concepts, we briefly describe each of these

requirements in turn.

     (i) Inherently Dangerous

     The first requirement—that a felony must be “inherently dan-

gerous to human life”—is a “limitation on the type of felony that may

serve as an underlying felony for a felony murder conviction.” Hulme

v. State, 273 Ga. 676, 678 (1) (544 SE2d 138) (2001), overruled in

part on other grounds by State v. Jackson, 287 Ga. 646 (697 SE2d

757) (2010). This Court has reasoned that the “only rational func-

tion” of the felony-murder statute is to “deter the commission of a

dangerous or life-threatening felony.” Ford v. State, 262 Ga. 602, 603

(1) (423 SE2d 255) (1992) (citation and punctuation omitted). In line

with this reasoning, we have held that a felony cannot serve as a



                                 13
predicate for felony murder unless it is “inherently dangerous to hu-

man life.” Wilson v. State, 315 Ga. 728, 733 (4) (883 SE2d 802) (2023)

(citation and punctuation omitted).

     Felonies may be considered inherently dangerous if they either

are “dangerous per se,” or “by [their] circumstances create[ ] a fore-

seeable risk of death.” Wilson, 315 Ga. at 733 (4); see Davis v. State,

290 Ga. 757, 760 (4) (725 SE2d 280) (2012). Some felonies, like ag-

gravated assault, create a foreseeable risk of death under almost any

circumstances. See Sanders v. State, 313 Ga. 191, 198-199 (3) (a) (iv)

(869 SE2d 411) (2022); see also, e.g., Lofton v. State, 309 Ga. 349,

353 (1) (846 SE2d 57) (2020) (armed robbery); State v. Tiraboschi,

269 Ga. 812, 813 (504 SE2d 689) (1998) (felony fleeing). Others may

or may not create a foreseeable risk of death, depending on how they

were committed. See Ford, 262 Ga. at 603 (1) (explaining that pos-

session of a firearm by a previously convicted felon is not dangerous

per se, but that “circumstances may well exist under which such a

felony may be considered dangerous”).



                                  14
     (ii) Proximate Cause

     The second requirement, proximate cause, comes from the stat-

utory requirement that the person “causes the death” in the commis-

sion of a felony, OCGA § 16-5-1 (c) (emphasis added), and focuses on

the causal connection between the criminal conduct and the victim’s

death. Proximate cause is distinct from the requirement that the fel-

ony be inherently dangerous. As just explained, a felony is inher-

ently dangerous if it is committed in such a way that death is a rea-

sonably foreseeable consequence. See Wilson, 315 Ga. at 733 (4).

Proximate cause additionally requires that the death actually hap-

pened in a way that was a reasonably foreseeable result of the crim-

inal conduct—that is, the death must also have been a “probable or

natural consequence[ ]” of the criminal conduct. See Calhoun v.

State, 308 Ga. 146, 149 (2) (a) (839 SE2d 612) (2020) (citation omit-

ted); Jackson, 287 Ga. at 648-652 (2). See also Wayne R. LaFave, 2

Subst. Crim. L. § 14.5 (d) (3d ed.) (“A given category of felony may

be inherently dangerous, but it may still be that the death which

actually occurred has come about in such an extraordinary way that

                                 15
as a matter of causation the defendant should not be held accounta-

ble for the death.”).

     Take armed robbery. Committing armed robbery with a gun is

inherently dangerous because it is reasonably foreseeable that

someone will be shot and killed in the course of the robbery. See

Lofton, 309 Ga. at 353 (1). If the victim was in fact shot and killed

by the defendant in the course of the robbery, proximate cause is

also satisfied, because one could reasonably foresee that a death

could be caused by an armed robbery in just that way. See, e.g., Perez

v. State, 316 Ga. 433, 438 (2) (888 SE2d 526) (2023) (defendant guilty

of felony murder based on armed robbery when he shot the victim

during the robbery). If, on the other hand, someone dies because he

tried to flee from the ongoing robbery by climbing from his third-

floor balcony to the balcony below, slipped, and fell thirty feet to the

ground, proximate cause would be a closer question. See Stafford v.

State, 312 Ga. 811 (865 SE2d 116) (2021) (affirming conviction for

felony murder predicated on burglary under those circumstances

where defendant did not challenge sufficiency of the evidence). In

                                  16
that case, the defendant would be guilty of felony murder only if the

“intervening act”—the victim fleeing from his balcony and falling—

could “reasonably have been anticipated, apprehended, or foreseen

by the original wrong-doer.” Calhoun, 308 Ga. at 149 (2) (a) (citation

omitted).2

      What sorts of intervening acts are reasonably foreseeable?3


      2 A notable treatise explains proximate cause through the lens of arson:



      [I]t is clear that if A sets fire to B’s occupied house it is felony-
      murder if B or a member of his household or a fireman fighting the
      blaze is burned to death. While the chances may be all in favor of
      no one’s death by fire, these deaths are neither unforeseeable nor
      the result of abnormal happenings. Firemen usually put out house
      fires without getting killed, but the death of a fireman fighting
      such a blaze happens often enough that its occurrence does not
      greatly surprise us. So too we would not view it as abnormal if a
      brave stranger were to rush into the house in an attempt to save a
      trapped member of B’s household crying for help at an upstairs
      window, and if the stranger died in the fire this would also be fel-
      ony murder. On the other hand, it seems unlikely that the arsonist
      would be held guilty of felony murder if a looter entered the blazing
      building to steal whatever he could find or if a fireman were to fall
      off the fire truck on its way back to the fire station after putting
      out the conflagration.

Wayne R. LaFave, The “proximate” or “legal” cause limitation, 2 Subst. Crim.
L. § 14.5 (d) (3d ed.).

      3 The idea of an “intervening act,” as we use that term here, is distinct

from that of an “intervening cause,” at least as that term is used in tort law. In
tort law, an intervening cause, by definition, is an event that is not foreseeable

                                       17
Generally, an intervening act is reasonably foreseeable if, among

other things, it “may ensue in the ordinary course of events,” Jack-

son, 287 Ga. at 651 (2) n.4 (quoting Cain v. State, 55 Ga. App. 376,

381-382 (190 SE 371) (1937)), or if it was “set in motion by the orig-

inal wrong-doer,” id. This would include intentional actions by some-

one other than the defendant who could reasonably be expected to

take that action in response to the criminal conduct. It is foreseea-

ble, for example, that in the course of a violent crime, deadly force




and therefore breaks the chain of proximate causation. See, e.g., City of Rich-
mond v. Maia, 301 Ga. 257, 259 (1) (800 SE2d 573) (2017) (“the well-estab-
lished doctrine of intervening causes states that there can be no proximate
cause where there has intervened between the act of the defendant and the
injury to the plaintiff, an independent act or omission of someone other than
the defendant, which was not foreseeable by defendant, was not triggered by
defendant’s act, and which was sufficient of itself to cause the injury”) (citation
and punctuation omitted). We have used the term “intervening cause” that
way in the felony-murder context, too. See, e.g., Menzies v. State, 304 Ga. 156,
161 (II) (816 SE2d 638) (2018) (“Proximate causation imposes liability for the
reasonably foreseeable results of criminal conduct if there is no sufficient, in-
dependent, and unforeseen intervening cause.”) (citation and punctuation
omitted). In contrast to that, here we refer to a causal force that is foreseeable
and does not break the chain of causation, that is not directly part of the de-
fendant’s conduct, and that contributes to the victim’s death. To distinguish
this kind of causal force from an “intervening cause,” we use the term “inter-
vening act.” See Calhoun, 308 Ga. at 149 (2) (a) (discussing “intervening act[s]”
in this way).
                                        18
will be used by an accomplice, see Davis, 290 Ga. at 760 (4) (defend-

ant guilty of felony murder when his brother fatally shot the person

from whom they were buying marijuana), the victim, see Robinson

v. State, 298 Ga. 455, 456, 458-459 (1) (782 SE2d 657) (2016) (de-

fendant guilty of felony murder when his accomplice was fatally shot

by a store owner they were attempting to rob), or law enforcement,

see Calhoun, 308 Ga. at 147, 150 (2) (a) (defendant who fled from

police in high-speed car chase was guilty of felony murder when po-

lice used a “PIT” maneuver to end the pursuit, the defendant

crashed, and his passenger was killed). Other intervening acts are

reasonably foreseeable even though they are not intended by the de-

fendant. Such foreseeable intervening acts can include causal forces

that relate mostly to the victim, like the victim being especially vul-

nerable to harm, see Eberhart v. State, 307 Ga. 254, 260 (1) (b), 261-

262 (2) (a) (835 SE2d 192) (2019) (defendant who repeatedly tased

victim was guilty of felony murder when victim died from “hyperten-

sive cardiovascular disease exacerbated by physical exertion and

‘conducted electrical stimulation’ from the application of the

                                  19
TASERs”); see also Treadaway v. State, 308 Ga. 882, 885 (1) (843

SE2d 784) (2020) (“the offender takes her victim as she finds [her]”

(cleaned up)); or the victim suffering a medical complication as a re-

sult of the defendant’s conduct, see Harris v. State, 313 Ga. 653, 656-

657 (1) (b) (872 SE2d 732) (2022) (defendant who shot victim during

armed robbery was guilty of felony murder when, over a month after

robbery, victim died from blood clots caused by shooting); Franklin

v. State, 295 Ga. 204, 205-206 (2) (a) (758 SE2d 813) (2014) (defend-

ant who assaulted victim and put him in a vegetative state that ne-

cessitated a tracheal breathing tube was guilty of felony murder

when tracheal tube later dislodged and the victim died). And we

have said that accidents are reasonably foreseeable intervening acts

if they are “set in motion” by the original crime. See Skaggs v. State,

278 Ga. 19, 20 (1), 21 (3) (596 SE2d 159) (2004) (defendant who as-

saulted victim and caused him to fall and fatally hit his head on the

ground was guilty of felony murder because “the fall itself was the

direct and immediate result of” the assault and “[t]he only interven-

ing force was gravity”); Scott v. State, 252 Ga. 251, 251 (1) (313 SE2d

                                  20
87) (1984) (defendant guilty of felony murder when he and his ac-

complice were building or transporting an explosive device and it

exploded, killing the accomplice).

     In sum, proximate cause is satisfied for purposes of felony mur-

der when the death was a “reasonably foreseeable result[]” of the

criminal conduct at issue. Robinson, 298 Ga. at 458 (1) (citation and

punctuation omitted). This requirement is met even if the death had

an intervening act, so long as that intervening act was itself a rea-

sonably foreseeable consequence of the criminal conduct. See id.

     (iii) “In the Commission of”

     The third requirement—that the victim’s death must be caused

“in the commission of” the predicate felony, OCGA § 16-5-1 (c)—is

closely related to proximate cause in that it concerns the connection

between the felony and the death. But while proximate cause focuses

on whether the death was a reasonably foreseeable result of the

criminal conduct, the in-the-commission-of requirement asks

whether the cause of death was close enough in time and circum-

stances to the felony. See, e.g., Smith v. State, 307 Ga. 106, 113 (4)

                                    21
(834 SE2d 750) (2019). 4

      We have said that a death is caused “in the commission of” a

predicate felony if the cause of death is “within the res gestae” of the

predicate felony. Lee v. State, 270 Ga. 798, 801 (4) (514 SE2d 1)

(1999) (citation and punctuation omitted).5 In plain English, this



      4 Given how similar the “in the commission of” and proximate cause re-

quirements are, a set of facts that meets one of these requirements often will
meet the other. For this reason, our decisions have sometimes conflated these
requirements or addressed them together. See, e.g., Smith, 307 Ga. at 112-113
(4) (reasoning that the defendants’ assault of the victim was “not the immedi-
ate cause” of the victim’s death in part because the assault was “attenuated in
time, in place, and most significantly, in circumstance” from the shooting of
the victim). That said, these requirements arise out of different language in
our felony-murder statute, and as we explain, they focus on slightly different
inquiries. So we do not rule out the possibility that a particular set of facts
could meet one of these requirements while failing to meet the other.

      5 Although we use the term “res gestae” here, we have largely abandoned

that term, and in other contexts we rarely ask whether something occurred
within the res gestae of a crime. For instance, while the old Evidence Code
allowed the State to “present evidence of the entire res gestae of the crime,”
even if that evidence showed the commission of an additional uncharged crime,
see Johnson v. State, 264 Ga. 456, 457 (1) (448 SE2d 177) (1994), the new Evi-
dence Code does not use the term “res gestae,” see Johnson v. State, 292 Ga.
785, 789 (4) n.4 (741 SE2d 627) (2013), and admits evidence of an uncharged
crime only for specific purposes, see OCGA § 24-4-404 (b). Our cases using the
“res gestae” approach to the “in the commission” requirement remain good law,
see Hood v. State, 303 Ga. 420, 422 (1) (b) (811 SE2d 392) (2018) (explaining
that a murder may be committed in perpetration of a felony if it is committed
within the res gestae of the felony), but it is simpler to say, as we do here, that
the “in the commission” requirement means that the cause of death must be
close enough in time and circumstances to the felony.

                                        22
means that the predicate felony must “be at least concurrent with

[the homicide] in part, and be a part of it in an actual or material

sense.” Davis, 290 Ga. at 761 (5) (a).6 The cause of death does not

have to happen precisely during a felony to be “concurrent with [it]

in part.” Lee, 270 Ga. at 801 (4) (homicide “may be committed in the

commission of a felony, although it does not take place until after

the felony itself has been technically completed”) (citation and punc-




      6 The “at least concurrent in part” language was part of the pattern jury

instruction on felony murder at the time of Eubanks’s trial, see Wilson, 315
Ga. at 734-735 (5) & n.2 (noting that this language was included in the felony-
murder pattern jury instruction in 2019), and that instruction was given in
this case. However, the pattern jury instruction on felony murder no longer
includes the “at least concurrent in part” language. The pattern instruction
now states:

      You may find the Defendant guilty of felony murder if you believe
      that he/she caused the death of another person by committing the
      felony of ____, regardless of whether he/she intended the death to
      occur. There must be some causal connection between the felony
      and the death. Felony murder is not established simply because
      the death occurred at the same time as or shortly after the felony
      was attempted or committed. The felony must have directly caused
      the death or played a substantial and necessary part in causing
      the death, regardless of when the death ultimately occurred.

Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.
2007, updated Jan. 2023) § 2.10.30.
                                      23
tuation omitted). But this statutory language limits how “attenu-

ated in time, in place, and most significantly, in circumstance” it can

be. Smith, 307 Ga. at 113 (4). See also Wayne R. LaFave, 2 Subst.

Crim. L. § 14.5 (f) (3d ed.) (noting that in applying the “in the com-

mission of” requirement, which has roots in the “common law felony-

murder rule,” the cases stress that “the homicide and the [predicate

felony] must be ‘closely connected in point of time, place and causal

relation.’”).

      Also like proximate cause, the “in the commission of” inquiry is

fact-specific. Compare Westmoreland v. State, 287 Ga. 688, 689-690

(1) (699 SE2d 13) (2010) (death was caused “in the commission of” a

burglary when the defendant fled from the completed burglary in a

car and fatally struck another car) with Smith, 307 Ga. at 113 (4)

(death was not caused “in the commission of” aggravated assault

when the defendant assaulted the victim inside a nightclub, the

fighting stopped for several minutes, the victim left the club, and

then the defendant’s fellow gang member shot the victim outside).

      (b) Application

                                  24
     Count I of the indictment—the only felony-murder count on

which Eubanks was sentenced—charged Eubanks with felony mur-

der predicated on possession of heroin with intent to distribute. The

indictment alleged that Eubanks caused Amy’s death “while in the

commission of the Possession of Heroin with Intent to distribute . . .

by exposing said person to heroin while in the commission of the

distribution thereof.” Eubanks contends that the evidence was not

sufficient to convict her of felony murder based on this predicate fel-

ony because it did not establish the prerequisites we just discussed

above: that her felony was inherently dangerous; that her conduct

was a proximate cause of Amy’s death, or that Eubanks caused

Amy’s death “in the commission of” the felony. We take these re-

quirements one at a time.

     (i) Inherently Dangerous

     As explained above, a felony may be considered “inherently

dangerous” to life per se, or dangerous to life based on the circum-

stances in a given case. So this requirement is addressed by as-

sessing the risks created by the “actual circumstances in which the

                                  25
felony was committed.” Treadaway, 308 Ga. at 885 (1) (citation and

punctuation omitted). That assessment is particularly needed for

mere possession offenses, which in many cases could be considered

dangerous to life only based on the circumstances of a given case.

For example, merely possessing a stolen car, see OCGA § 16-8-7 (“[a]

person commits the offense of theft by receiving stolen property

when he . . . retains stolen property which he knows or should know

was stolen”), may not be a per se danger to human life. But if a per-

son drives that stolen car at a high rate of speed in a residential

neighborhood and crashes it into another car, that particular pos-

session could create a foreseeable risk of death and thus serve as a

predicate for felony murder. See Turner v. State, 281 Ga. 487, 488-

489 (1) (a) (640 SE2d 25) (2007). See also Hines v. State, 276 Ga. 491,

493 (3) (578 SE2d 868) (2003) (defendant guilty of felony murder

based on possession of a firearm by a convicted felon when he used

the firearm to go hunting after drinking, fired at an unidentified

target at dusk through heavy foliage, and fatally shot his friend).

     So too with drug-possession felonies. In the abstract, simple

                                  26
possession of drugs may not be per se dangerous to human life, but

our precedent is clear that a person can possess an illegal substance

under circumstances that create a foreseeable risk of death. That

was the case in Stephens v. State, 303 Ga. 530 (813 SE2d 596) (2018),

and Williams v. State, 298 Ga. 208 (779 SE2d 304) (2015), where we

affirmed the felony-murder convictions of a couple who sold crack

cocaine out of their home after their one-year-old child found their

supply of the drug and ingested a lethal dose. Williams, 298 Ga. at

213-214 (2) (b). Those defendants typically kept their supply of crack

cocaine “inside a hole in the living room sofa,” which their child could

reach, id. at 213 (2) (b), and we reasoned “[t]hat the presence of co-

caine within the reach of a young child creates a risk of death is

highly foreseeable,” id. at 213-214 (2) (b). Thus, the defendants’ pos-

session of crack cocaine with intent to distribute was inherently dan-

gerous to life “[u]nder the circumstances” of that case, and because

the evidence supported the “unmistakable conclusion” that the child

ingested the drug “after finding it in the place where [the defend-

ants] stored it to sell to others,” id. at 214 (2) (b), the evidence was

                                  27
sufficient to support their convictions for felony murder. Id.

     Williams is on all fours with this case, at least in the ways that

matter. The evidence here showed that Eubanks kept heroin, a le-

thal drug, in the home. She regularly used the drug herself and

brought it out of the place she stored it to sell to others on at least

one occasion. Amy, who also lived in and had access to the entire

home, did not know enough to avoid touching, eating, or otherwise

interacting with any heroin that she might find. Yet on the night of

June 22-23, Eubanks left Amy home alone for several hours after

Eubanks had not only carried out a drug deal in a common area of

the home, but spilled a large bag of drugs “all over the place.” Alt-

hough Eubanks was not known to regularly store her heroin any-

where other than her own room and claimed that she cleaned up the

drugs that had spilled, on that same evening, she was also observed

acting strangely, from which the jury could infer that she was under

the influence of drugs and that her ability to clean up or secure the

drugs was impaired. Indeed, soon after Amy was found dead, Eu-

banks told her ex-husband she thought that Amy had “gotten” some

                                  28
of the heroin that she had spilled during the struggle, which could

happen only if the drugs that spilled had not been completely

cleaned up. So, just as in Williams, the evidence authorized the jury

to conclude that the defendant left potentially lethal drugs within

reach of a person who was uniquely vulnerable to the danger that

they would ingest or otherwise come into contact with the drugs, re-

sulting in her death. See Williams, 298 Ga. at 213-214 (2) (b). Under

these specific and unusual circumstances—a highly dangerous drug

left within the reach of an adult with Amy’s serious vulnerabilities,

who was left alone with it for several hours—the evidence supported

the jury’s conclusion that Eubanks’s possession of heroin with intent

to distribute created a foreseeable risk of death. See id.

     Eubanks tries to distinguish Williams on the basis that the de-

fendants there could be said to have acted with “criminal negli-

gence,” while the evidence here supports only a conclusion that Eu-

banks caused Amy’s death either by accident or through ordinary

negligence. And, she points out, a “crime” in Georgia requires a vio-



                                  29
lation of a statute by act or omission with “intention or criminal neg-

ligence.” OCGA § 16-2-1 (a). But our decisions construing and apply-

ing our felony-murder statute have not required separate consider-

ation of whether the defendant caused the death through “criminal

negligence.” Instead, the mens rea requirement of the statute is sat-

isfied when the defendant had “the intent to commit the underlying

felony,” Smith v. State, 301 Ga. 348, 351 (II) (801 SE2d 18) (2017),

and such felony was dangerous to life per se or under the circum-

stances. Together, these related requirements limit liability for fel-

ony murder to those cases in which the defendant intentionally com-

mitted a felony that she reasonably should have known could cause

someone’s death. When the State proves as much beyond a reasona-

ble doubt, a sufficient mens rea for felony murder is present. See

Ware v. State, 303 Ga. 847, 849 (II) (815 SE2d 837) (2018) (“felony

murder requires only that the defendant possessed the requisite

criminal intent to commit the underlying felony”) (citation and punc-

tuation omitted); Ford, 262 Ga. at 603 (1) (“[T]he application of the

[felony murder] rule to felonies not foreseeably dangerous would be

                                  30
unsound analytically because there is no logical basis for imputing

malice from the intent to commit a felony not dangerous to human

life.”).

      (ii) Proximate Cause

      As explained above, under the proximate-cause standard, lia-

bility may be imposed “for the reasonably foreseeable results of crim-

inal conduct if there is no sufficient, independent, and unforeseen

intervening cause.” Robinson, 298 Ga. at 458 (1) (cleaned up). As a

determination that requires “mixed considerations of logic, common

sense, justice, policy, and precedent,” whether proximate cause is

satisfied “is undeniably a jury question and is always to be deter-

mined on the facts of each case.” Id. (citation omitted).

      Here, the evidence authorized the jury to conclude that Eu-

banks’s conduct proximately caused Amy’s death. It was uncon-

tested that Eubanks brought and kept a large amount of a lethal

drug into a home where a severely developmentally disabled person

lived and that Eubanks conducted a transaction for the drug, which



                                  31
led to it spilling “all over the place” in an area to which that vulner-

able person had free access. Amy’s exposure to the heroin was a rea-

sonably foreseeable consequence of this conduct. Keeping a danger-

ous drug in the home and bringing it out in the open risked exposing

a person with Amy’s vulnerabilities, and conducting a drug transac-

tion in the home heightened that risk given the separate danger that

drug transactions will lead to disagreements (and, too often, vio-

lence). Cf. Wilson, 315 Ga. at 733-734 (4) (recognizing that violence

is foreseeable when transacting in illegal drugs); Davis, 290 Ga. at

760-761 (4) (same). That risk of exposure bore out here: Eubanks

and Paul fought over the drugs and spilled them. And although Eu-

banks claimed that she tried to clean up the drugs that had scattered

all over the common area, the jury could have inferred that Eubanks

left some of the heroin behind, especially since there was evidence

that she was likely under the influence herself at the time, and Eu-

banks herself told someone after Amy’s death that she was worried

that Amy had in fact come into contact with the spilled heroin. Fi-



                                  32
nally, even if Amy later finding the heroin and ingesting was an “in-

tervening act,” the jury could have concluded that this was a reason-

ably foreseeable result of conducting a transaction for the drug in a

common area of a house where a person with Amy’s severe vulnera-

bilities lived, spilling the drug all over an area she could freely ac-

cess, and then leaving her home alone for several hours. See Wil-

liams, 298 Ga. at 213-214 (2) (b). See also Eberhart, 307 Ga. at 260

(1) (b), 261-262 (2) (a) (victim’s vulnerability to harm can be foresee-

able); Treadaway, 308 Ga. at 885 (1) (“the offender takes her victim

as she finds [her]” (cleaned up)). In short, the evidence authorized

the jury to conclude that Amy’s death was a reasonably foreseeable

result of Eubanks’s criminal conduct.

     (iii) “In the Commission of”

     Finally, the evidence authorized the jury to conclude that Eu-

banks caused Amy’s death “in the commission of” the predicate fel-

ony—that is, sufficiently close in time, place, and circumstance to

Eubanks’s possession of heroin with the intent to distribute it. See

Hood v. State, 303 Ga. 420, 423-424 (1) (b) (811 SE2d 392) (2018)

                                    33
(affirming felony-murder conviction when victim’s death was

“closely related temporally and spatially to Appellant’s felony of pos-

session with intent to distribute cocaine”); Wilson, 315 Ga. at 734-

735 (5) & n.2. A person commits the offense of possession with intent

to distribute by possessing a controlled substance with the intent to

distribute it; no actual distribution is necessary. OCGA § 16-13-30

(b). See also Calloway v. State, 303 Ga. 48, 56 (2) (b) (810 SE2d 105)

(2018) (“The proof necessary to establish possession with intent to

distribute is (1) possession of a controlled substance and (2) the in-

tent to distribute it.”). So Eubanks was committing this offense, for

purposes of felony murder, for as long as she possessed heroin and

intended to distribute it. The evidence authorized the jury, which

was instructed about constructive possession, to conclude that she

possessed heroin the entire time she kept some in her room and in-

side a black bag. See Lebis v. State, 302 Ga. 750, 753 (II) (808 SE2d

724) (2017) (“if a person has both the power and the intention at a

given time to exercise dominion or control over a thing, then the per-

son is in constructive possession of that thing”) (cleaned up). The

                                  34
evidence also supported a conclusion that Eubanks’s intent to dis-

tribute heroin continued through and beyond her transaction with

Paul and Crystal on the night of June 22-23: she bought the heroin

to resell it, and she did not intend to sell all of it to Paul and Crystal

(she was angry that Paul had grabbed her entire supply, that is,

more than she wanted to sell them at the time). And as discussed

above, the evidence supported a conclusion that Amy’s death was

caused during that same timeframe, in the home where Eubanks

possessed the heroin, by being exposed to the heroin in that home.

Given this evidence, the jury was authorized to conclude that Eu-

banks caused Amy’s death on the night of June 22-23 “in the com-

mission” of possession with intent to distribute.

     Eubanks contends that she did not cause Amy’s death “in the

commission” of her felony because her death did not happen ‘“within

the res gestae’ of the sale to Paul and Crystal.” Eubanks points out

that the indictment alleged that Eubanks caused Amy’s death spe-

cifically by “exposing” Amy to heroin “while in the commission of the

distribution thereof.” But the State did not have to prove that Amy

                                   35
died precisely during Eubanks’s distribution of heroin to meet the

“in the commission of” requirement: it had to prove only that the

cause of death was sufficiently connected in time, place, and circum-

stance with Eubanks’s possession with intent to distribute. See

Hood, 303 Ga. at 423-424 (1) (b); Cooper v. State, 286 Ga. 66, 67 (2)

(685 SE2d 285) (2009) (“There is no requirement that the victim

must die during the commission of the underlying felony under a

felony-murder indictment. OCGA § 16-5-1 (c), defining felony mur-

der, requires that the death need only be caused by an injury which

occurred during the res gestae of the felony.”) (citation omitted). And

as we just explained, the evidence authorized that conclusion. See,

e.g., Skaggs, 278 Ga. at 20 (1) (defendant guilty of felony murder for

striking the victim, even though the victim actually died not from

the defendant’s blows but from injuries sustained when he fell to the

ground as a result of being struck).



     (c) In reaching the conclusion here that the evidence was suffi-

cient to support Eubanks’s conviction for felony murder, we are

                                  36
mindful that reasonable people may disagree about whether some-

one should be charged with and punished for murder when the evi-

dence does not show an intent to harm (much less kill) the victim,

but only that someone sold drugs out of her home. But that norma-

tive question is not one that a court has the power to resolve. Our

limited role in considering the sufficiency of the evidence as a matter

of due process is to determine whether the evidence, viewed in the

light most favorable to the verdict, authorized the jury to find the

defendant guilty of the statutory offense she was charged with. See

Peacock, 314 Ga. at 714-715 (2) (b). Although the conviction here

tests the limits put in place by our felony-murder statute, we are

constrained to conclude that the evidence authorized Eubanks’s con-

viction for felony murder as that statutory offense has been con-

strued and applied.

     That said, we reiterate here the longstanding limitations on

felony murder that are grounded in the felony-murder statute. As

relevant to Eubanks’s arguments here, a conviction for felony mur-

der must be predicated on the defendant having committed a felony

                                  37
that is dangerous to life, either per se or under the circumstances of

that case. See Wilson, 315 Ga. at 733 (4). The defendant’s conduct

must have been the proximate cause of the death that resulted. See

Calhoun, 308 Ga. at 149 (2) (a). And the defendant must have caused

that death “in the commission of”—sufficiently close in time, place

and circumstance to—the felony. See Wilson, 315 Ga. at 734-735 (5)

& n.2; Hood, 303 Ga. at 423-424 (1) (b). If the evidence in a given

case does not support the conclusion that the State proved any one

of these requirements beyond a reasonable doubt, a conviction for

felony murder is not authorized.

     3. Eubanks next raises a number of contentions about the trial

court’s jury instructions. Some of those contentions were raised be-

low and others were not. Because different standards of review ap-

ply, we address those that were not raised below followed by those

that were.

     (a) Eubanks contends that the trial court erred by failing to

specifically instruct the jury that a predicate felony for felony mur-

der must be inherently dangerous. She also contends the court

                                   38
should have given instructions on criminal negligence and accident,

and an additional instruction on circumstantial evidence. She did

not ask for any of these instructions below, so we review this claim

only for plain error. See OCGA § 17-8-58 (b); Ash v. State, 312 Ga.

771, 791 (5) (a) (865 SE2d 150) (2021). “To show plain error, an ap-

pellant must show that (1) the alleged error was not affirmatively

waived, (2) it was obvious beyond reasonable dispute, and (3) it af-

fected the appellant’s substantial rights, which ordinarily means

showing that it affected the outcome of the trial.” Johnson v. State,

316 Ga. 672, 686 (6) (889 SE2d 914) (2023) (citation and punctuation

omitted). If those three requirements are satisfied, the appellate

court “has the discretion to remedy the error only if the error seri-

ously affected the fairness, integrity, or public reputation of judicial

proceedings.” Moore v. State, 315 Ga. 263, 273 (4) (882 SE2d 227)

(2022) (cleaned up).




                                  39
      Eubanks has not established that the trial court committed ob-

vious error in failing to give any of these instructions. 7 The trial

court did not specifically instruct the jury that a predicate felony

must be inherently dangerous, but “such an instruction is not re-

quired, even when requested.” Id. See also State v. Kelly, 290 Ga. 29,




      7 The court properly defined felony murder for the jury, explaining that

“[a] person also commits the crime of murder when, in the commission of a
felony, that person causes the death of another human being, with or without
malice.” The court also defined the alleged predicate drug-possession felonies.
Then it gave the following instructions:

      If you find and believe beyond a reasonable doubt that the defend-
      ant committed the homicide alleged in this bill of indictment at the
      time the defendant was engaged in the commission of the felony of
      possession of heroin, then you would be authorized to find the de-
      fendant guilty of murder, whether the homicide was intended or
      not.

      In order for the homicide to have been done in the commission of
      this particular felony, there must be some connection between the
      felony and the homicide. The homicide must have been done in car-
      rying out the unlawful act and not collateral to it. It is not enough
      that the homicide occurred soon or presently after the felony was
      attempted or committed. There must be such a legal relationship
      between the homicide and the felony so as to cause you to find that
      the homicide occurred before the felony was at end or before any
      attempt to avoid conviction or arrest for the felony. The felony
      must have a legal relationship to the homicide, be at least concur-
      rent with it in part, and be a part of it in an actual and material
      sense. A homicide is committed in the carrying out of a felony when
      it is committed by the accused while engaged in the performance
      of any act required for the full execution of a felony.
                                       40
34 (2) (b) (718 SE2d 232) (2011) (explaining that “our case law runs

contrary to” the notion that a trial court must “instruct the jury ex-

plicitly that it must find as an element of the felony murder that the

underlying felony . . . was committed in a manner that created a

foreseeable risk of death”). As for the instructions on accident and

criminal negligence, Eubanks grounds her arguments for those in-

structions in her assertion that the State must separately prove that

Eubanks caused Amy’s death intentionally or through “criminal

negligence” to convict her for felony murder. But as we explained

above, proof of the intent to commit an underlying felony that was

inherently dangerous to life under the circumstances is enough to

establish the mens rea for felony murder. See Wilson, 315 Ga. at 733

(4); Ware, 303 Ga. at 849 (II). Eubanks makes no argument here that

the evidence would have supported a finding that she accidentally

or through criminal negligence possessed heroin with the intent to

distribute it.

     Finally, Eubanks contends that the trial court’s instruction on

circumstantial evidence was incomplete. The trial court gave the

                                 41
pattern instruction on direct and circumstantial evidence, which in-

forms jurors that “[y]ou would be authorized to convict only if the

evidence, whether direct, circumstantial, or both, excludes all rea-

sonable theories of innocence and proves the guilt of the accused be-

yond a reasonable doubt.” See Georgia Suggested Pattern Jury In-

structions, Vol. II: Criminal Cases (4th ed. 2007, updated Jan. 2023)

§ 1.30.20. Eubanks says the court also should have told the jury that

the State had to disprove any theory of innocence supported by the

evidence. See OCGA § 24-14-6 (“To warrant a conviction on circum-

stantial evidence, the proved facts shall not only be consistent with

the hypothesis of guilt, but shall exclude every other reasonable hy-

pothesis save that of the guilt of the accused.”).

     Not including an instruction about “disproving” theories of in-

nocence was not error. The jury was already told that it could convict

only if the evidence “excludes all reasonable theories of innocence,”

and it was told that the State must prove Eubanks’s guilt beyond a

reasonable doubt. Those instructions effectively conveyed the point

that the State was required to disprove reasonable hypotheses of

                                  42
Eubanks’s innocence. When a requested jury instruction adds no es-

sential point of law to the existing instructions, it is not error for the

trial court to decline to give it. See Wilson, 315 Ga. at 737-738 (7);

Francis v. State, 296 Ga. 190, 194 (2) (766 SE2d 52) (2014) (“A trial

court does not abuse its discretion in refusing to give a jury charge

in the exact language requested when the charge given substantially

covers the correct principles of law.” (citation and punctuation omit-

ted)).

     (b) Eubanks contends that the trial court erred by declining to

give her requested jury instructions on the definition of a crime. “We

review de novo a properly preserved claim that a trial court erred in

refusing to instruct the jury on an applicable principle of law.” Wil-

son, 315 Ga. at 734 (5).

     Eubanks asked for the pattern jury instruction on the defini-

tion of a crime. The pattern instruction explains that “[a] crime is a

violation of a statute of this state in which there is a joint operation

of an act (or omission to act) and intention (or criminal negligence).”

See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal

                                   43
Cases (4th ed. 2007, updated Jan. 2023) § 1.40.10. The trial court’s

actual instruction tracked the pattern instruction exactly, except

that it omitted the parentheticals, “(or omission to act)” and “(or

criminal negligence).” Eubanks argues that because those parenthe-

ticals were omitted, the jury instruction did not conform to the evi-

dence, because the only way Eubanks could be guilty of felony mur-

der charge was through criminal negligence. But again, that is not

so. As we explained above, the intent to commit an underlying felony

that was inherently dangerous to life under the circumstances suf-

fices as the mens rea for felony murder, see Wilson, 315 Ga. at 733

(4); Ware, 303 Ga. at 849 (II), and Eubanks makes no argument that

the evidence would have supported a finding that she committed her

predicate felonies through criminal negligence. This claim of error

fails.

         4. Eubanks contends that the trial court erred by denying her

special demurrer to the indictment because the indictment did not

adequately inform her of the time and manner in which she was al-



                                   44
leged to have exposed Amy to heroin. 8 “We review a ruling on a spe-

cial demurrer de novo to determine the legal sufficiency of the alle-

gations in the indictment.” Wilson, 315 Ga. at 732 (3) (citation and

punctuation omitted).

     Count I of the indictment charged Eubanks with felony murder

for causing Amy’s death on June 23, 2019 “while in the commission

of the Possession of Heroin with Intent to Distribute . . . by exposing

said person to heroin while in the commission of the distribution

thereof.” Count III charged her with felony murder for causing

Amy’s death on June 23, 2019 “while in the commission of the Pos-

session of Heroin . . . by exposing said person to heroin while in the

possession thereof.” Counts II and IV charged her with, respectively,

possessing heroin with intent to distribute and possessing heroin,

all on June 23, 2019.


     8 Eubanks also challenges the indictment on grounds that she did not

raise below, including that Count I was duplicitous and that the indictment
did not allege that she knowingly possessed heroin. Those arguments are not
preserved for appeal. See Hinkson v. State, 310 Ga. 388, 395 (3) (850 SE2d 41)
(2020) (special demurrer claims must be brought before trial or they are
waived); id. at 397-398 (4) (general demurrer claims that are not timely as-
serted through an appropriate vehicle in the trial court are not preserved for
review).
                                     45
     The purpose of an indictment is to “allow the defendant to pre-

pare his defense intelligently and to protect him from double jeop-

ardy.” Sanders, 313 Ga. at 195 (3) (citation and punctuation omit-

ted). To satisfy due process, an indictment must “contain all the es-

sential elements of the crime” and must “notify the accused of what

factual allegations he must defend in court.” Jackson v. State, 301

Ga. 137, 139-140 (1) (800 SE2d 356) (2017) (citation and punctuation

omitted). So the test for whether an indictment is constitutionally

sufficient is not whether it might be made more definite and certain,

but only whether it “sufficiently apprises the defendant of what he

must be prepared to meet, and, in case any other proceedings are

taken against him for a similar offense, whether the record shows

with accuracy to what extent he may plead a former acquittal or

conviction.” Sanders, 313 Ga. at 195 (3) (citation and punctuation

omitted). The State need not allege all the details of the crime in an

indictment so long as the allegations contain enough detail to “allow

a defendant to prepare his defense intelligently.” Bullard v. State,

307 Ga. 482, 486-487 (2) (837 SE2d 348) (2019) (cleaned up).

                                 46
     Eubanks’s indictment met that standard. The State charged

Eubanks in the predicate counts with possessing heroin and intend-

ing to distribute it on June 23, 2019, and it charged her in the felony-

murder counts with “exposing” Amy to heroin on that date, either

while distributing the drug (Count I) or while she possessed it

(Count III). The State did not allege precisely how or when Amy was

“exposed,” but doing so was not required to satisfy due process. See

Bullard, 307 Ga. at 486-487 (2). Read as a whole, as it must be, see

Sanders, 313 Ga. at 196 (3) (a) (ii), the indictment charged Eubanks

with causing Amy’s death by exposing her to the drug on June 23,

while Eubanks possessed or distributed it. Those allegations were

specific enough to allow Eubanks to prepare an intelligent defense.

Indeed, that conclusion is supported by the defenses that Eubanks

asserted: among other things, she elicited on cross-examination that

neither Shawn nor the deputies saw any drugs in the house on the

day Amy’s body was found, which could support a defense that the

drugs were not in Amy’s reach, and she elicited from the medical

examiner that it was not clear how heroin got into Amy’s system or

                                  47
exactly when she died.

     The indictment also protected Eubanks against the dangers of

double jeopardy in a possible future proceeding. The indictment in-

formed her that the charges arose out of conduct that resulted in

Amy’s death, stated the nature of that conduct, and set out the date

on which the conduct took place. Given all that, “it cannot reasona-

bly be argued that [she] is not protected from the dangers of double

jeopardy.” State v. Grube, 293 Ga. 257, 262 (2) (744 SE2d 1) (2013)

(indictment sufficient to protect against double jeopardy when it

specified the conduct being charged, identified the victim, and

named the date on which the conduct took place).

     In sum, Eubanks’s indictment, although not very detailed, was

constitutionally sufficient, and so this claim of error fails. See, e.g.,

Funck v. State, 296 Ga. 371, 373 (1) & n.3 (768 SE2d 468) (2015)

(indictment that charged defendant with felony murder for causing

the victim’s death while in the commission of attempt to possess co-

caine “by striking him with a vehicle” was constitutionally suffi-

cient); State v. Wyatt, 295 Ga. 257, 261 (2) (a) - 266 (3) (759 SE2d

                                   48
500) (2014) (indictment that charged defendant with aggravated as-

sault by assaulting victim “with an object the exact nature of which

is unknown to the members of the Grand Jury, which when used

offensively against another person is likely to result in serious bodily

injury” was constitutionally sufficient). Compare Kimbrough v.

State, 300 Ga. 878, 882-883 (3) (799 SE2d 229) (2017) (indictment

not constitutionally sufficient when it did not allege how the defend-

ants were associated with an enterprise, whether the enterprise was

licit or illicit, or how the defendants’ alleged racketeering activities

related to the enterprise).

     5. Eubanks next contends that the trial court abused its discre-

tion by admitting a hearsay statement from Amy that Eubanks was

“mean” to her. The statement was admitted over objection through

the testimony of Lisa Bennett, the director of an adult educational

program for adults with mental disabilities that Amy attended. Ben-

nett was asked about Amy’s ability to express emotions. Bennett tes-

tified that Amy once told her, “Jessica mean,” and when she asked

what Amy meant, Amy replied, “I not know.”

                                  49
     Assuming without deciding that it was an abuse of discretion

to admit Amy’s statement through Bennett, any error was harmless.

A non-constitutional error is harmless if it was “highly probable that

the alleged error did not contribute to the verdict.” Head v. State,

316 Ga. 406, 416 (3) (888 SE2d 473) (2023). Under this standard,

admitting inadmissible evidence can be harmless if “substantial, cu-

mulative, legally admissible evidence of the same fact is introduced.”

Id. at 417 (3) (citation and punctuation omitted). In determining

whether an error was harmless, “we review the record de novo, and

we weigh the evidence as we would expect reasonable jurors to have

done so.” Middlebrooks v. State, 315 Ga. 671, 684 (1) (884 SE2d 318)

(2023) (citation and punctuation omitted).

     The admission of Amy’s remark that Eubanks was “mean” to

her was harmless because it did not relate to the State’s theory of

the case and because it was cumulative of other evidence that Amy

and Eubanks did not have a warm relationship. The State never ar-

gued that Eubanks intended to harm Amy or that she caused her

death out of antipathy towards her, nor did it need to: the only intent

                                  50
the State had to prove was Eubanks’s intent to possess heroin and

that she intended to distribute it. And even if Amy’s remark might

have colored the jury’s view of Eubanks, it was largely cumulative

of other evidence that she and Eubanks did not get along. Shawn

described their relationship as “cool” and indifferent, and said that

when Eubanks was around, Amy would usually be in her room. And

one of Amy’s former caretakers testified that after Eubanks moved

into the house, Amy was more timid and reserved and less happy-

go-lucky, at least when she was at home. Given that other evidence

and that the State’s theory of the case did not involve showing that

Eubanks intended to harm Amy, it is highly probable that Amy’s

comment about Eubanks being “mean” to her did not affect the ver-

dict. See Head, 316 Ga. at 416 (3).

     6. Finally, Eubanks contends that the trial court abused its dis-

cretion by admitting four videos of Amy during life. The videos,

which were shown at trial, lasted a total of two minutes and twenty

seconds and depicted Amy learning the pledge of allegiance, visiting

a pet store, playing softball, and hugging a new purse. The State

                                 51
argued that the videos would show Amy’s level of cognitive skill and

hand-eye coordination. But in Eubanks’s view, the videos were not

relevant and were introduced only to play on the jury’s sympathies.

We review a trial court’s evidentiary rulings for abuse of discretion.

See Jones v. State, 305 Ga. 653, 655 (2) (827 SE2d 254) (2019).

     Relevant evidence is “evidence having any tendency to make

the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without

the evidence.” OCGA § 24-4-401. Relevant evidence is generally ad-

missible, see OCGA § 24-4-402, but it may be excluded “if its proba-

tive value is substantially outweighed by the danger of unfair prej-

udice,” OCGA § 24-4-403 (“Rule 403”). Evidence carries a danger of

“unfair prejudice” if it has a tendency to “lure the factfinder into de-

claring guilt on a ground different from proof specific to the offense

charged,” or to “suggest decision on an improper basis.” Old Chief v.

United States, 519 U.S. 172, 180 (II) (B) (1) (117 SCt 644, 136 LE2d

574) (1997) (citation and punctuation omitted). See also Wilson, 315

Ga. at 738 (8). But the exclusion of evidence under Rule 403 is “an

                                  52
extraordinary remedy that should be used only sparingly.” Id. (cita-

tion and punctuation omitted). The “major function” of the rule is to

“exclude matter of scant or cumulative probative force, dragged in

by the heels for the sake of its prejudicial effect.” Hood v. State, 299

Ga. 95, 103 (4) (786 SE2d 648) (2016) (cleaned up).

     Here, the videos of Amy were relevant to show her limited cog-

nitive development. That was an important fact because, as we ex-

plained above, the State needed to show how Eubanks’s possession

of heroin could proximately cause Amy’s death. See Wilson, 315 Ga.

at 733 (4). The “in-life” videos helped the State do that, because

Amy’s vulnerability was a major reason it was possible for her to

come in contact with and ingest a lethal dose of heroin without

knowing any better. To be sure, the videos also likely played on the

jury’s sympathies, and they may have carried a danger of prejudice.

But they were not very prejudicial: they showed Amy doing very nor-

mal activities, and they took up less than two and a half minutes of

trial time. And they had clear probative value, and so were not

“dragged in by the heels for the sake of [their] prejudicial effect.”

                                  53
Hood, 299 Ga. at 103 (4) (citation and punctuation omitted). The

trial court did not abuse its discretion in admitting them. See Jones,

305 Ga. at 655 (2).

     Judgment affirmed. All the Justices concur, except LaGrua, J.,
who concurs specially in Division 2 (c).




                                 54
     LAGRUA, Justice, concurring specially in part.

     I concur fully in the judgment and in Divisions 1, 2 (a), 2 (b), 3,

4, 5, and 6. But I do not agree with all that is said in Division 2 (c),

so I concur specially in that part of the opinion.




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