Lewis 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
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: June 26, 2025

S25A0023. LEWIS v. THE STATE.

WARREN, Presiding Justice.

In 2021, Aaron Lewis was indicted in Gwinnett County for the

felony murders of Dieterick Stephen Duncker and Alexandria

Thompson and for other related crimes. In the indictment, the State

alleged that the predicate felony on which Counts 1, 2, 5, and 6 were

based was “the sale and distribution of fentanyl . . . . in DeKalb

County.” The State also alleged that Lewis “selling heroin that

contained fentanyl” to Duncker and Thompson “caused [Duncker

and Thompson] to overdose and die in Gwinnett County.”

Contending that venue was not proper in Gwinnett County,

Lewis filed a motion to dismiss (and later an amended motion to

dismiss) Counts 1, 2, 5, and 6—the felony-murder counts predicated

on the “sale and distribution” of heroin that contained fentanyl. The
trial court denied Lewis’s amended motion to dismiss and granted a

certificate of immediate review. We granted Lewis’s interlocutory

application to review the trial court’s ruling on venue.

As explained more below, we vacate the trial court’s order

denying Lewis’s amended motion to dismiss. We do so because the

trial court anchored its venue analysis on Eubanks v. State, 317 Ga.

563 (894 SE2d 27) (2023)—a case in which this Court evaluated a

defendant’s post-conviction claim that the evidence presented at

trial was not sufficient as a matter of constitutional due process to

sustain her conviction for felony murder. But Eubanks is not a case

about venue, and this Court provided no analysis of OCGA § 17-2-2

(c)—the criminal-homicide statutory venue provision—in that case.

We therefore vacate the trial court’s order and remand for further

proceedings consistent with this opinion.

1. Background

In May 2021, Lewis was indicted in Gwinnett County on eight

counts related to the deaths of Duncker and Thompson, including

felony murder. According to the indictment, Lewis sold and

2
distributed fentanyl-laced heroin to Duncker during the night of

February 12 to 13, 2020, and Duncker died on February 13; Lewis

then sold and distributed fentanyl-laced heroin to Thompson on

February 15, and she died later that same day.1 As relevant to this

appeal, Lewis was indicted by a Gwinnett County grand jury for one

count of felony murder predicated on the sale and distribution of

fentanyl in violation of OCGA § 16-13-30 (b)2 for the murder of

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

he or she causes the death of another human being irrespective of malice.”
OCGA § 16-5-1 (c).

2 OCGA § 16-13-30 (b) proscribes (among other offenses) the sale and

distribution of controlled substances and provides that “[e]xcept as authorized
by this article, it is unlawful for any person to manufacture, deliver, distribute,
dispense, administer, sell, or possess with intent to distribute any controlled
substance.” See OCGA § 16-13-30 (b). OCGA § 16-13-25, in turn, lists Schedule
I controlled substances, and at the time of Lewis’s indictment provided:
The controlled substances listed in this Code section are included
in Schedule I:
…
(2) Any of the following opium derivatives, their salts, isomers, and
salts of isomers, unless specifically excepted, whenever the
existence of these salts, isomers, and salts of isomers is possible
within the specific chemical designation:
…
(J) Heroin;
…
(13) The fentanyl analog structural class, including any of the
following derivatives, their salts, isomers, or salts of isomers,
unless specifically utilized as part of the manufacturing process by

3
Duncker (Count 1); one count of felony murder predicated on the sale

and distribution of heroin in violation of OCGA § 16-13-30 (b) for the

murder of Duncker (Count 2); one count of felony murder predicated

on the sale and distribution of fentanyl in violation of OCGA § 16-

13-30 (b) for the murder of Thompson (Count 5); and one count of

felony murder predicated on the sale and distribution of heroin in

violation of OCGA § 16-13-30 (b) for the murder of Thompson (Count

6), among other offenses.

For each of the four counts listed above, the indictment alleged

that Lewis committed

murder when [he] caused the death of [Duncker and
Thompson] irrespective of malice while in the commission
of a felony, to wit: the sale and distribution of [fentanyl
and heroin] in violation of OCGA § 16-13-30 (b), by selling
[Duncker and Thompson], in De[K]alb County, heroin
that contained fentanyl which caused [Duncker and
Thompson] to overdose and die in Gwinnett County.

a commercial industry of a substance or material not intended for
human ingestion or consumption, as a prescription administered
under medical supervision, or for research at a recognized
institution, whenever the existence of these salts, isomers, or salts
of isomers is possible within the specific chemical designation or
unless specifically excepted or listed in this or another schedule,
structurally derived from fentanyl, and whether or not further
modified . . . .
OCGA §§ 16-13-25 (2) (J); 16-13-25 (13).
4
In December 2022, Lewis filed a motion to dismiss the

indictment based on “lack of venue” and later filed an amended

motion moving to dismiss Counts 1, 2, 5, and 6 of the indictment on

the same basis. In February 2024, the trial court held a hearing to

consider Lewis’s amended motion, which it later denied. In its order,

the trial court acknowledged that “[t]he indictment alleges that the

sale of drugs led to the cause of deaths. The sales occurring in

DeKalb County and the deaths occurring as a result of an overdose

which occurred in Gwinnett County.” However, the trial court

determined that “Gwinnett County is the location in which the cause

of death, the ingestion of the narcotics, and the res gestae of

[Lewis’s] actions resulted” and “[t]he ingestion of narcotics [was] the

naturally and reasonably foreseeable result of the purchase of

narcotics.” The trial court thus concluded that venue was proper in

Gwinnett County, denied Lewis’s amended motion to dismiss, and

granted a certificate of immediate review. We granted Lewis’s

timely-filed interlocutory application to this Court and held oral

5
argument on November 5, 2024.

2. Standard of Review

“We apply a de novo standard of review to [a] trial court’s ruling

on [a] motion to dismiss the indictment for improper venue.” State

v. Al-Khayyal, 322 Ga. App. 718, 719 (744 SE2d 885) (2013),

disapproved of on other grounds by Hill v. State, 360 Ga. App. 143

(860 SE2d 893) (2021). 3

3. Analysis

The Georgia Constitution provides that “all criminal cases

3 Though Lewis styled his pretrial motion as a “motion to dismiss,” he

contends in his appellate brief that the motion “was in substance a general
demurrer.” “A general demurrer challenges the sufficiency of the substance of
the indictment, and asks whether it is capable of supporting a conviction.”
Clark v. State, 315 Ga. 423, 442-443 (883 SE2d 317) (2023) (citation and
punctuation omitted). As noted below, our Court appears to have
acknowledged in criminal cases both motions to dismiss based on venue as well
as general demurrers challenging the sufficiency of the indictment based on
venue. See McKinney v. State, 282 Ga. 230, 232 (647 SE2d 44) (2007). It is not
clear to us what substantive difference there is, if any, between these two
procedural vehicles. But we do not have to resolve that question to resolve this
case, and in any event, this Court’s review of a “trial court’s ruling on a general
demurrer is de novo” as well. See Budhani v. State, 306 Ga. 315, 319 (830
SE2d 195) (2019) (“This Court reviews a trial court’s ruling on a general
demurrer de novo in order to determine whether the allegations in the
indictment are legally sufficient.”) (cleaned up).
6
shall be tried in the county where the crime was committed.”4 Ga.

Const. of 1983, Art. VI, Sec. II, Par. VI. Georgia statutory law

further explains that in cases of criminal homicide (which includes

felony murder), the criminal homicide “shall be considered as having

been committed in the county in which the cause of the death was

inflicted.” OCGA § 17-2-2 (c).5

Venue is a jurisdictional fact that the State must prove beyond

a reasonable doubt in every criminal case. See Hernandez v. State,

4 Ga. Const. of 1983, Art. VI, Sec. II, Par. VI provides in full:

All other civil cases, except juvenile court cases as may otherwise
be provided by the Juvenile Court Code of Georgia, shall be tried
in the county where the defendant resides; venue as to
corporations, foreign and domestic, shall be as provided by law;
and all criminal cases shall be tried in the county where the crime
was committed, except cases in the superior courts where the judge
is satisfied that an impartial jury cannot be obtained in such
county.

5 The full text of OCGA § 17-2-2 (c) says:

Criminal homicide. Criminal homicide shall be considered as
having been committed in the county in which the cause of death
was inflicted. If it cannot be determined in which county the cause
of death was inflicted, it shall be considered that it was inflicted in
the county in which the death occurred. If a dead body is discovered
in this state and it cannot be readily determined in what county
the cause of death was inflicted, it shall be considered that the
cause of death was inflicted in the county in which the dead body
was discovered.
7
304 Ga. 895, 898 (823 SE2d 272) (2019). But at the outset of a

criminal case—well before a case may be tried—the State must

allege venue in the indictment. See, e.g., Leverette v. State, 291 Ga.

834, 836 (732 SE2d 255) (2012) (acknowledging that in a criminal

case, an indictment must “set forth the Georgia county in which the

crime is alleged” to withstand a venue challenge); Armstrong v.

State, 286 Ga. 420, 421 (688 SE2d 629) (2010) (acknowledging that

in a criminal case, venue is a “material allegation of an indictment”).

Indeed, it has long been the standard in Georgia that the State, in a

criminal case, must allege “that the crime was committed in the

county in which such indictment or accusation was proceeding”—

and that the failure to do so would make “the indictment or

accusation [] demurrable.” Conley v. State, 83 Ga. 496, 498 (10 SE

123) (1889).

Georgia appellate courts have acknowledged pretrial

challenges to indictments on the basis of venue made by filing a

general demurrer or a pretrial motion seeking dismissal of the

indictment. See, e.g., McKinney v. State, 282 Ga. 230, 232 (647 SE2d

8
44) (2007) (after defendants filed motions to dismiss and general

demurrers challenging their indictments based on venue, reversing

the trial court’s denial of the motions to dismiss for lack of venue);

State v. Stubbs, 365 Ga. App. 630, 632 (879 SE2d 716, 718) (2022)

(rejecting the State’s contention that “the trial court erred in

considering the issue of venue in the context of a pretrial motion

seeking dismissal of the accusation” and “instead must reserve the

matter for the jury”).

In evaluating whether to sustain a demurrer, a court generally

“cannot go beyond the four corners of the indictment.” State v.

Williams, 306 Ga. 50, 53 (829 SE2d 117) (2019). 6 See also Stubbs,

365 Ga. App. at 632 (“In ruling on [a pretrial motion to dismiss], the

trial court cannot resolve disputed questions of fact pertaining to

venue, which are reserved for the jury.”) (citing cases). “There is an

6 Given his characterization of the amended motion to dismiss as “in

substance a general demurrer,” Lewis cites case law pertaining to this Court’s
review of a general demurrer and does not offer a different substantive
standard for reviewing a pretrial motion to dismiss in a criminal case.
Likewise, the State references Lewis’s “motion to dismiss and general
demurrer” and cites a standard of review for this Court that pertains to general
demurrers.

9
important exception to the general rule,” however: “If the State

stipulates or agrees to the facts that form the basis for the charges

in the indictment, a court can rely on those facts in its consideration

of a demurrer, whether or not the facts appear on the face of the

indictment.” Williams, 306 Ga. at 53. We are aware of no such

stipulations in this case.7

Lewis contends that the trial court erred in denying his

amended motion to dismiss because the State failed properly to

allege venue with respect to Counts 1, 2, 5, and 6 of the indictment.8

As part of that argument, Lewis contends—and we agree—that the

7 The trial court purported to find that that “the parties agree . . . that

the predicate sales of drugs occurred in DeKalb County and the overdoses and
deaths occurred in Gwinnett County.” However, in his brief on appeal, Lewis
represents—and the State agrees—that “[d]uring the hearing there were no
express stipulations of fact by the parties,” despite the trial court’s purported
ruling that “‘[t]he indictment alleges, and the parties agree, that the predicate
sales of drugs occurred in DeKalb County and the overdoses and deaths
occurred in Gwinnett County.’” It is worth emphasizing that, given the
procedural posture in this case, the trial court has not made any findings of
fact.

8 Our analysis is limited to Counts 1, 2, 5, and 6 of the indictment—the

Counts on which Lewis based his motion to dismiss. We do not consider
whether venue is proper in Gwinnett County for Counts 3, 4, 7, and 8.

10
trial court’s reliance on Eubanks in its venue analysis was

misplaced.

Indeed, the trial court veered off course when it applied, at the

State’s urging, a proximate-cause analysis based on this Court’s

decision in Eubanks.9 Pointing to this Court’s determination in

Eubanks that the victim’s “exposure to heroin was a reasonably

foreseeable consequence of [the defendant’s] conduct,” see id. at 576,

the trial court reasoned that venue for Lewis’s felony-murder

prosecution was proper in Gwinnett County because Duncker’s and

Thompson’s ingestion of narcotics was “the natural and reasonably

foreseeable result of the purchase of [the] narcotics” Lewis was

alleged to have sold them. But the issue Lewis raised in his motion

to dismiss was not one of proximate cause (that is, whether his

9 In Eubanks v. State, we evaluated a defendant’s claim that the evidence

was not sufficient as a matter of constitutional due process to sustain her
conviction for felony murder, where the record showed that the defendant
“brought and kept a large amount of a lethal drug into a home where a severely
developmentally disabled person lived and [she] conducted a transaction for
the drug, which led to it spilling . . . in an area to which that vulnerable person
had free access.” 317 Ga. 563, 576 (894 SE2d 27) (2023). We held that the
evidence was constitutionally sufficient in that case because the victim’s
“exposure to the heroin was a reasonably foreseeable consequence of [the
defendant’s] conduct.” Id.
11
alleged sale of drugs could be the proximate cause of Duncker’s and

Thompson’s deaths), but rather one of venue. The relevant question

for purposes of venue here is in which “county . . . the cause of death

was inflicted” under OCGA § 17-2-2 (c), based on the challenged

counts of the indictment as the State alleged them.

Because the trial court erred by applying the Eubanks

proximate-cause framework to a venue question, we vacate the trial

court’s order and remand for further proceedings consistent with

this opinion.

Judgment vacated and remanded. Peterson, CJ, and Bethel,
Ellington, McMillian, LaGrua, Colvin, and Pinson, JJ, concur.

12
WARREN, Presiding Justice, concurring.

With limited exception, the Georgia Constitution requires

criminal cases to be “tried in the county where the crime was

committed.” Ga. Const. of 1983, Art. VI, Sec. II, Par. VI.10 Georgia

statutory law further explains that felony murder—a type of

criminal homicide—“shall be considered as having been committed

in the county in which the cause of the death was inflicted.” OCGA

§ 17-2-2 (c).

In most criminal homicide cases, identifying the proper venue

is a straightforward exercise: the county in which a defendant

“inflict[s]” a homicide victim’s “cause of death,” see OCGA § 17-2-2

(c), is more often than not obvious in cases of shooting, stabbing,

strangling, or blunt-force trauma, where a perpetrator imposes

significant and immediate harm on a victim. But the key venue

question presented in this interlocutory appeal does not involve

these types of criminal homicide, and it is far less straightforward:

10 The Georgia Constitution excepts from this general rule “cases in
superior courts where the judge is satisfied that an impartial jury cannot be
obtained in such county.” Ga. Const. of 1983, Art. VI, Sec. II, Par. VI.
13
when a defendant is charged with felony murder predicated on the

sale and distribution of drugs, and the conduct underlying the

predicate felony is alleged to have been completed in one county, but

the death by drug overdose allegedly caused by the commission of

that felony occurs in another county, in which “county [was] the

cause of death . . . inflicted” for purposes of venue? See OCGA § 17-

2-2 (c).

Today’s majority opinion, in which I concur fully, offers a

unanimous—but narrow—answer: when evaluating venue for felony

murder under OCGA § 17-2-2, applying the Eubanks proximate-

cause analysis is not the correct legal framework. But because this

issue will recur—not only in this case, but in others—and because

trial courts and district attorneys would benefit from guidance about

this important venue issue, I write separately to shed some light on

the questions this Court asked upon granting Lewis’s interlocutory

application but did not answer in the majority opinion. Those

questions center around how to determine, in a criminal-homicide

case, “the county in which the cause of death was inflicted” for

14
purposes of venue. See OCGA § 17-2-2 (c).11

The bottom line is this: it seems clear that a defendant’s

conduct (as opposed to the result of a defendant’s conduct) is the

touchstone of the analysis of the “county in which the cause of death

was inflicted” under OCGA § 17-2-2 (c). That conclusion is one the

trial court in this case—and trial courts in other cases—should

carefully consider. And although it seems that the construction of

OCGA § 17-2-2 (c) I offer below would apply in this felony-murder

case and in many others, I am not sure whether that construction of

OCGA § 17-2-2 (c) would work in certain other felony-murder cases

in a way that is consistent with my proposed application of the

11 Those questions are:

1. When a defendant is charged with felony murder predicated on the
sale or distribution of drugs and his conduct underlying the predicate
felony is alleged to have been completed in one county, but the death
by drug overdose allegedly caused in the commission of that felony
occurs in another county, what is the “cause of death”? OCGA § 17-2-
2 (c). For example, is the “cause of death” the defendant’s alleged
affirmative conduct (the sale of drugs), the apparent immediate cause
of death (drug overdose), either of those things, both of those things,
or something else?
2. Under the above circumstances, in which county or counties was the
“cause of death” “inflicted?” See id.
3. Under the above circumstances, could venue be proper in both
counties?
15
statute in this case; is consistent with other convictions for felony

murder this Court has upheld on appeal; and otherwise meets

Georgia’s constitutional and statutory venue requirements.12

On remand, however, the trial court is faced only with

assessing venue in this case based on the counts of the indictment

as the State has alleged them here. Acknowledging that this is a

difficult task, I offer in this concurrence the best venue rule I have

been able to formulate—as well as an application of that rule to the

relevant counts of the indictment in this case.

*

1. The majority opinion lays out much of the factual

background and procedural history relevant to this appeal. But to

aid my analysis of OCGA § 17-2-2 (c), I review some of it here. In

May 2021, Aaron Lewis was indicted in Gwinnett County on eight

12 That is likely because OCGA § 17-2-2 (c)—which was enacted in 1968,

decades before fentanyl became the all-too-common scourge it is today—does
not appear to have contemplated, and does not appear to neatly fit, the theory
of felony murder the State pursues here. In other words (and as Justice Bethel
also points out in his concurring opinion): Georgia’s criminal-homicide venue
statute is a round hole, and the theory of felony murder the State advances in
this case in Counts 1, 2, 5, and 6 (that is, felony murder predicated on the sale
and distribution of illegal drugs laced with fentanyl) is a square peg.
16
counts related to the deaths of Duncker and Thompson, including

felony murder. As relevant to this appeal, Lewis was indicted by a

Gwinnett County grand jury for one count of felony murder

predicated on the sale and distribution of fentanyl in violation of

OCGA § 16-13-30 (b) for the murder of Duncker (Count 1); one count

of felony murder predicated on the sale and distribution of heroin in

violation of OCGA § 16-13-30 (b) for the murder of Duncker (Count

2); one count of felony murder predicated on the sale and

distribution of fentanyl in violation of OCGA § 16-13-30 (b) for the

murder of Thompson (Count 5); and one count of felony murder

predicated on the sale and distribution of heroin in violation of

OCGA § 16-13-30 (b) for the murder of Thompson (Count 6), among

other offenses.

For each of the four counts listed above, the indictment alleged

that Lewis committed

murder when [he] caused the death of [Duncker and
Thompson] irrespective of malice while in the commission
of a felony, to wit: the sale and distribution of [fentanyl
and heroin] in violation of OCGA § 16-13-30 (b), by selling
[Duncker and Thompson], in De[K]alb County, heroin

17
that contained fentanyl which caused [Duncker and
Thompson] to overdose and die in Gwinnett County.

Counts 1, 2, 5, and 6 of the indictment did not allege any other

conduct by Lewis that pertained to the deaths of Duncker and

Thompson.

2. Lewis contends that the trial court erred in denying his

amended motion to dismiss because the State failed properly to

allege venue with respect to Counts 1, 2, 5, and 6 of the indictment.13

In particular, he argues that DeKalb County is “where the predicate

offense was committed” and that “[t]here is no allegation that

[Lewis] took any action establishing venue in Gwinnett.” I agree

that a defendant’s conduct—as opposed to the result of his conduct—

is the touchstone of the inquiry into which “county . . . the cause of

death was inflicted” under OCGA § 17-2-2 (c).14

13 Like the analysis in the majority opinion, my analysis is limited to

Counts 1, 2, 5, and 6 of the indictment—the Counts on which Lewis based his
motion to dismiss. I do not consider whether venue is proper in Gwinnett
County for Counts 3, 4, 7, and 8.

14 The full text of OCGA § 17-2-2 (c) says:

Criminal homicide. Criminal homicide shall be considered as
having been committed in the county in which the cause of death

18
(a) As noted above, the Georgia Constitution provides that “all

criminal cases shall be tried in the county where the crime was

committed.”15 Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. We

generally construe Georgia statutes against the backdrop of the

Georgia Constitution and, when possible, interpret them in a way

that is harmonious with our Constitution. See, e.g., In the Interest

of M.D.H., 300 Ga. 46, 53 (793 SE2d 49) (2016) (“We construe

statutes in connection and in harmony with the existing law”—

including the Georgia Constitution—“as a part of a general and

uniform system of jurisprudence”) (cleaned up); Antonin Scalia &

was inflicted. If it cannot be determined in which county the cause
of death was inflicted, it shall be considered that it was inflicted in
the county in which the death occurred. If a dead body is discovered
in this state and it cannot be readily determined in what county
the cause of death was inflicted, it shall be considered that the
cause of death was inflicted in the county in which the dead body
was discovered.

15 Ga. Const. of 1983, Art. VI, Sec. II, Par. VI provides in full:

All other civil cases, except juvenile court cases as may otherwise
be provided by the Juvenile Court Code of Georgia, shall be tried
in the county where the defendant resides; venue as to
corporations, foreign and domestic, shall be as provided by law;
and all criminal cases shall be tried in the county where the crime
was committed, except cases in the superior courts where the judge
is satisfied that an impartial jury cannot be obtained in such
county.
19
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

180 (2012) (“The provisions of a text should be interpreted in a way

that renders them compatible, not contradictory.”). That

interpretive principle is important, because “if a statutory rule

contradicts a constitutional rule, then the constitutional rule

prevails.” Carpenter v. McMann, 304 Ga. 209, 211 (817 SE2d 686)

(2018).

OCGA § 17-2-2 (c)—Georgia’s venue statute for criminal

homicide (which includes felony murder)—can be read

harmoniously with Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. That

is because the statutory term “inflicted” effectuates the Georgia

Constitution’s venue requirement that criminal cases “be tried in

the county where the crime was committed.” See Ga. Const. of 1983,

Art. VI, Sec. II, Par. VI (emphasis added); see also OCGA § 17-2-2

(a) (“In general. Criminal actions shall be tried in the county where

the crime was committed, except as otherwise provided by law.”).

This harmonious reading underscores an important feature of

the venue question at issue today: both the Georgia Constitution and

20
the criminal-homicide venue statute point to a defendant’s conduct

in determining where venue shall lie in criminal cases. And this is

one of the data points that leads to my basic conclusion that conduct

is the touchstone of the inquiry into which “county . . . the cause of

death was inflicted” under OCGA § 17-2-2 (c).

There’s good evidence to support this interpretation.

Dictionaries from around 1968—the year the statute’s “inflicted”

language was enacted 16—generally define “inflict” as causing or

imposing harm or pain. 17 See, e.g., The American Heritage

Dictionary of the English Language 674 (1969) (defining “inflict” as

16 See Ga. L. 1968, p. 1249, § 1.The text of OCGA § 17-2-2 (c) has not
changed since its enactment in 1968. Notably, the statutory precursors to
OCGA § 17-2-2 (c) did not include the word “inflict.” See, e.g., Code of 1933, p.
844, § 27-1104 (“When any mortal wound shall be given, or any poison shall be
administered, or any other means shall be employed in one county, by which a
human being shall be killed, who shall die thereof in another county, the
indictment shall be found and the offender shall be tried in the county where
the act was performed or done from which the death ensued.”). See also Irwin’s
Code of 1868 § 4577; Code of 1860 § 4557; Cobb’s 1851 Digest, p. 840, ¶ 335,
§ 42.

17 See, e.g., Camp v. Williams, 314 Ga. 699, 702 (879 SE2d 88) (2022)

(“[R]eviewing dictionaries from the era of the statute’s enactment may assist
in determining its meaning.”) (citation and punctuation omitted); State v.
SASS Grp., LLC, 315 Ga. 893, 898-899 (885 SE2d 761) (2023) (“One place to
look for ordinary meaning is contemporaneous dictionaries from around the
time when the text was adopted.”).
21
“[t]o cause or carry out by physical assault or other aggressive

action” and “to impose”); Webster’s Third New International

Dictionary 1160 (1966) (defining “inflict” as “to lay (a blow)”; “cause

(something damaging or painful) to be endured”; and “to impose”);

The Random House Dictionary of the English Language 730 (1966)

(defining “inflict” as “to lay on”; “to impose as something that must

be borne or suffered”; and “to impose (anything unwelcome)”). And

these definitions are generally consonant with the Georgia

Constitution, which provides that “all criminal cases shall be tried

in the county where the crime was committed.” Ga. Const. of 1983,

Art. VI, Sec. II, Par. VI (emphasis added). Georgia’s Constitution

has contained some version of a venue provision requiring that

criminal cases be tried in the county in which they are “committed”

since 1777, and OCGA § 17-2-2 (c) was enacted against this

constitutional backdrop. Examples of definitions of “commit”

contemporaneous to the first enactment of that term in Georgia’s

constitutional venue provision include: “[t]o perpetrate; to do fault;

to be guilty of a crime” and “to . . . do.” See, e.g., Samuel Johnson, 1

22
A Dictionary of the English Language 520 (4th ed. 1777) (defining

“commit” as “[t]o perpetrate; to do fault; to be guilty of a crime”);

Noah Webster, A Compendious Dictionary of the English Language

58 (1806) (defining “commit” as “to . . . do”); Noah Webster, American

Dictionary of the English Language 420-421 (New York, S. Converse

1828) (defining “commit” as “[t]o do; to effect or perpetrate; as, to

commit murder, treason, felony, or trespass” and defining

“committed” as “done” and “perpetrated”).

The upshot of these definitions is that they contemplate

conduct: a person who “inflicts” is a person who takes action

imposing harm on—or at a minimum, directs harmful conduct

toward—another person.18 Reading OCGA § 17-2-2 (c) in this light,

I would conclude that the plain meaning of “inflicted,” as used in the

phrase “the county in which the cause of death was inflicted,”

contemplates conduct a defendant directs towards a person that is

18 The dictionary definitions referenced above also contemplate harm
imposed on a thing. But since we are examining the relevance of these
definitions in the context of criminal homicide, I address only how the
definition of “inflict” applies to harm imposed on a person.

23
connected to the criminal homicide the State alleges and that

ultimately causes the death of that person. 19 It follows that for a

criminal-homicide count of an indictment to survive a general

demurrer or a motion to dismiss based on venue under OCGA § 17-

2-2 (c), the State must allege—at a minimum—that in the county in

which the criminal homicide count was indicted, the defendant

directed conduct toward a person that is connected to the criminal

homicide the State alleges, and that the State alleges ultimately

caused the death of that person.

(b) The State has not done so here. The State alleged in Counts

1, 2, 5, and 6 that Lewis committed felony murder “by selling

[Duncker and Thompson], in De[K]alb County, heroin that

contained fentanyl which caused [Duncker and Thompson] to

19 This conclusion is consistent with Jones v. State, 301 Ga. 1 (799 SE2d

196) (2017), disapproved on other grounds by Worthen v. State, 304 Ga. 862,
874 n.8 (823 SE2d 291) (2019). There, we held that venue was proper in Fulton
County under OCGA § 17-2-2 (c) when the victims “died because bullets struck
their bodies and ‘inflicted’ fatal injuries” and “[t]he evidence showed that the
victims’ causes of death were inflicted in Fulton County[.]” Jones, 301 Ga. at
4-5. And although we did not determine the county in which the defendant
fired the gun whose bullets “inflicted” the fatal injuries in that case, it is clear
that the defendant engaged in conduct directed towards the victims in Fulton
County that caused their deaths by shooting toward the victims in that county.
24
overdose and die in Gwinnett County.” To the extent the State

alleged that Lewis engaged in any type of conduct directed toward

Duncker and Thompson, it alleged that he did so in DeKalb County,

where it alleged that Lewis sold and distributed “heroin that

contained fentanyl” to them. By contrast, the State did not allege

that Lewis engaged in any conduct in Gwinnett County with respect

to the felony-murder counts, let alone that he engaged in conduct

directed toward Duncker and Thompson there. Thus, applying the

construction of “inflicted” in OCGA § 17-2-2 (c) offered above, I would

conclude that DeKalb County is the only county in which the jury

could possibly find that “the cause of death was inflicted” based on

this indictment. 20 See OCGA § 17-2-2 (c). This analysis supplies an

additional basis on which I would conclude that the trial court erred

by determining that venue was proper in Gwinnett County with

20 Interestingly, the State acknowledges in its appellate brief that venue

is proper in DeKalb County because that is “the county of the defendant’s
initial affirmative conduct.” It nonetheless asserts that venue is also proper in
Gwinnett County because that is “the county in which the death resulting from
that affirmative conduct occurs.” That argument, which focuses on the result
of the conduct the State alleges, rather than on Lewis’s conduct (as alleged by
the State), suffers from the maladies explained in Division 3.
25
respect to Counts 1, 2, 5, and 6.

3. The majority opinion explains that the trial court “veered off

course” by applying a proximate-cause analysis based on this Court’s

decision in Eubanks v. State, 317 Ga. 563 (894 SE2d 27) (2023). But

I see additional missteps in the trial court’s venue analysis in light

of the definition of “inflicted” I lay out above.

In particular, the trial court adopted the State’s argument that

“the cause of death was inflicted where the ingestion of the narcotics

took place (Gwinnett County)[,]” even though it also acknowledged

that “the predicate sale of drugs occurred in DeKalb County.” This

led the trial court to conclude that venue was proper in Gwinnett

County (and to deny Lewis’s motion to dismiss) because that was

“the location in which the cause of death, the ingestion of the

narcotics, and the res gestae of the Defendant’s actions resulted.”

In my view, however, the proper venue inquiry under OCGA

§ 17-2-2 (c) does not pinpoint the county in which the “cause of

death” or “the Defendant’s actions resulted,” but rather the county

in which the defendant engaged in conduct directed toward a person

26
that is connected to the criminal homicide alleged by the State and

ultimately causes that person’s death. Here, the State did not allege

that Lewis engaged in any conduct in Gwinnett County that was

directed toward Duncker and Thompson. Instead, the State indicted

felony murder in Counts 1, 2, 5, and 6 predicated on “the sale and

distribution” of drugs, which the State alleges took place in DeKalb

County. Thus, according to the State’s indictment, the only county

in which Lewis engaged in conduct directed toward Duncker and

Thompson at all, and thus the only county in which he could have

potentially “inflicted” the cause of death, see OCGA § 17-2-2 (c), is

in DeKalb County. 21

4. Notwithstanding the evidence I offer of the plain meaning of

“inflicted” and the analysis of how that term is used in OCGA § 17-

21 The State contends that venue may be proper in Gwinnett County

because the jury is permitted to find venue “by any applicable subsection in
OCGA § 17-2-2” and it is possible that the jury could conclude that “it cannot
be determined in which county the cause of death was inflicted” under OCGA
§ 17-2-2 (h). But the jury would not be authorized to reach that conclusion
based on this indictment, where the State has alleged that the only conduct
Lewis engaged in directed toward Duncker and Thompson (that is, the sale
and distribution of fentanyl-laced drugs) that caused their deaths occurred in
DeKalb.
27
2-2 (c), I am not certain that the construction I offer here would map

neatly on to all of the felony-murder cases for which the venue

inquiry is controlled by OCGA § 17-2-2 (c). For example, it is not

clear to me whether and how this definition would operate under

OCGA § 17-2-2 (c) when the theory of felony murder the State indicts

is one in which the defendant is alleged to have proximately caused

the death of a person but is not alleged to have “directed” any

conduct toward that homicide victim. See, e.g., Menzies v. State, 304

Ga. 156, 161 (816 SE2d 638) (2018) (evidence was sufficient to

support defendant’s conviction for felony murder when her

accomplice was fatally shot during an attempted armed robbery);

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

(evidence was sufficient to support defendant’s conviction for felony

murder when his accomplice was fatally shot by a store owner they

were attempting to rob); Thornton v. State, 292 Ga. 87, 88 (734 SE2d

393) (2012) (evidence was sufficient to support defendant’s

conviction for felony murder when he drove himself and others to

the location where the crime occurred, stayed in his vehicle during

28
the crime, and drove the getaway car). It is equally unclear to me

whether a venue challenge would ever actually arise in such a

scenario.

There are other uncertainties, too. For example, it is not clear

precisely what “cause of death” means as it is used in OCGA § 17-2-

2 (c). Is it a term of art (such as the “cause of death” that is

announced by a medical examiner), or does it merely indicate that a

defendant caused the death of a person? It is not difficult to see the

oddities this uncertainty presents in a case like this one, where the

felony-murder counts the State indicts are predicated on the sale or

distribution of drugs—such that the State alleges the defendant

“inflicted” the “cause of death” (and did not merely proximately

cause the death) by selling drugs.

But I need not resolve these questions to offer a well-supported

construction of the meaning of “inflicted,” as used in the phrase “the

county in which the cause of death was inflicted,” OCGA § 17-2-2 (c),

so that the trial court and the District Attorney may consider these

points on remand.

29
I am authorized to state that Justice Colvin joins in this

concurrence.

30
BETHEL, Justice, concurring.

I concur with the judgment of the Court vacating and

remanding this case for the trial court to apply the proper venue

analysis. I generally believe the Presiding Justice has laid out a

persuasive argument in her concurrence for how we might sort out

venue in cases based on the theory advanced by the State here. But,

candidly, I do not know how this theory of felony murder can fit into

our felony murder and venue jurisprudence as it currently exists.

With that state of affairs in mind, I write separately to examine two

challenging issues presented in this case that could benefit from

clear guidance from our General Assembly. First, I call attention to

a legal question that, while not directly raised as an issue on appeal,

lurks in the background of this case – namely, whether a felony

murder charge is even cognizable under the circumstances

presented in this case. Second, I note the strain the State’s theory of

felony murder places on determining venue under our existing

statutory scheme. Here, we have vacated and remanded this case for

31
the trial court to wrestle with the venue question, though we have

done so without providing significant guidance for resolving that

question beyond pointing to our prior precedent and, of course, the

statutory language. As I see it, the interplay of the felony murder

statute and the venue statute is not clearly delineated in our Code

and, thus, raises an inherent challenge in resolving the venue

question presented by this case. The Presiding Justice’s proposed

approach may prove helpful, but trying to reconcile that approach

within the full context of our felony murder and venue jurisprudence

and statutory schemes is difficult. In short, I do not think the legal

tools that the State seeks to employ here were designed to be used

on this job.

Lewis was indicted on four counts of felony murder — two

counts predicated on the sale and distribution of fentanyl and two

counts predicated on the sale and distribution of heroin — with the

State alleging that Lewis sold the drugs to the victims in DeKalb

County which “caused [the victims] to overdose and die in Gwinnett

County.” Lewis challenged the indictment for lack of venue. But it

32
seems to me that the bigger question here is whether the State has

charged a valid crime — that is, whether a felony murder charge can

be properly predicated on the sale and distribution of illicit drugs

where the purchaser, in a time and place remote from the completed

sale and distribution of the drugs, consumes the drugs and dies as

the result of an overdose.

Georgia law provides that a person commits felony murder

when, “in the commission of a felony, he or she causes the death of

another human being, irrespective of malice.” OCGA § 16-5-1 (c). To

obtain a conviction on a felony murder charge, the State must

establish three “related prerequisites”: (1) the predicate felony was

“one from which it was reasonably foreseeable that death could

result,” that is, it was “inherently dangerous”; (2) the death was in

fact “the probable or natural consequence of the defendant’s

conduct,” a concept otherwise known as proximate cause; and (3) the

death was caused “in the commission of” the predicate felony.

Eubanks v. State, 317 Ga. 563, 568 (2) (a) (894 SE2d 27) (2023).

While I have some questions about the State’s ability to prove the

33
first two requirements, 22 there is serious doubt in my mind about

the State’s ability to prove the third under the circumstances of this

case. Let me explain.

As this Court has acknowledged, the in-the-commission-of

requirement constitutes a statutory limit on how “attenuated in

time, in place, and most significantly, in circumstance” the predicate

felony and homicide can be. Id. at 573 (2) (a) (iii) (citation and

punctuation omitted). While “[a] murder may be committed in the

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

the felony itself has been technically completed,” Lee v. State, 270

22 For example, I question whether the predicate felonies here constitute

“inherently dangerous” felonies, such that it was reasonably foreseeable that
the victims’ deaths could result. Of course, this Court has issued numerous
decisions recognizing that drug sales are foreseeably dangerous and violent
and, on that basis, rejecting sufficiency challenges premised on a lack of
foreseeability. See, e.g., Hood v. State, 303 Ga. 420, 423 (1) (b) (811 SE2d 392)
(2018) (collecting cases). But factual context is important. See Davis v. State,
290 Ga. 757, 760 (4) (725 SE2d 280) (2012) (“In determining whether a felony
is inherently dangerous to human life, this Court does not consider the
elements of the felony in the abstract, but instead considers the circumstances
under which the felony was committed.” (citation and punctuation omitted)).
And where we have concluded that a predicate felony drug transaction is
inherently dangerous, it has been in the context of deaths that occurred as a
result of violence during the transaction itself, not as a result of ingesting the
drugs after the transaction was completed. See id. at 760-761 (4) and cases
cited therein.
34
Ga. 798, 801 (4) (514 SE2d 1) (1999), the predicate felony still “must

be at least concurrent with the homicide in part, and be a part of it

in an actual or material sense,” Eubanks, 317 Ga. at 572 (2) (a) (iii)

(citation and punctuation omitted). Here, there can be no question

that the predicate felonies of sale and distribution of heroin and

fentanyl, as they were charged in the indictment, were complete

when Lewis delivered the drugs to the victims. See Trammell v.

State, 262 Ga. App. 786, 786 (1) (586 SE2d 693) (2003) (“A sale of

drugs is complete when the seller delivers the drugs to

the . . . buyer.” (citation and punctuation omitted)). From the

limited appellate record, it appears that a not-insignificant amount

of time (hours) and distance (from DeKalb County to Gwinnett

County) separated the predicate felonies and the victims’

subsequent deaths. And other than facilitating the victims’ access to

the drugs that later killed them, it is not at all clear how Lewis or

the underlying drug sale itself, while certainly illegal, played any

direct or causational role in the victims’ deaths. Compare Smith v.

State, 307 Ga. 106, 113 (4) (834 SE2d 750) (2019) (death was not

35
caused “in the commission of” aggravated assault where appellant

assaulted the victim inside a nightclub, several minutes elapsed

before the victim left the club, and then appellant’s associates shot

the victim outside), with Bradley v. State, 272 Ga. 740, 743 (2) (533

SE2d 727) (2000) (“Although the kidnapping was complete in Greene

County, the conviction for felony murder in Morgan County

nevertheless stands because the victim was under the continuous

control of the defendant until she was killed; thus, the murder was

within the res gestae of the kidnapping.”); see also Eubanks, 317 Ga.

at 572 (2) (a) (iii) (The cause of death is “within the res gestae” of the

predicate felony where the predicate felony was “at least concurrent

with the homicide in part, and [was] a part of it in an actual or

material sense.”). Of course, following a full presentation of the

evidence against Lewis, it may be crystal clear that the victims’

deaths occurred “in the commission of” the sale and distribution of

heroin and fentanyl. But on the limited record before us, color me

skeptical.

To be sure, I am sympathetic to the State’s efforts to combat

36
the sale and distribution of ever-more potent and deadly drugs

within our state. But it seems to me that the felony murder statute,

as codified and understood in our decisional law, is not particularly

suited to that task and, further, that obtaining a valid conviction

under this theory likely cannot be done without straining at the

outer limits of that decisional law — the classic square-peg-round-

hole predicament, if you will. It may be that, under the current state

of our law, the felony murder statute, however ill-fitted to the task,

is the best tool at the State’s disposal in cases like the one at hand,

and this Court can do nothing to remedy that situation (though, of

course, the State retains power to draft its indictment mindful of

this issue). Crafting a more refined tool, one better equipped than

the felony murder statute for imposing criminal liability for drug

deaths, is a task for the General Assembly — a task that I would

encourage that body to explore.

Turning to the challenges this case presents for purposes of

determining venue, I observe a similar need for legislative attention.

Of course, to consider the venue question presented here, the Court

37
considers where the cause of death was inflicted. The “inflicted”

standard rests inside the constitutional requirement that a crime be

prosecuted in the county where it was “committed.” Paired, these

requirements suggest that murder offenses are committed and,

thus, that venue is proper where the cause of death was inflicted.

Most of the time, that is not a difficult question. But where, as here,

the State advances a theory that a given death was the end result of

a chain of events occurring in multiple counties, courts are forced to

wrestle with the task of providing clarity and certainty about the

true state of the law while also resolving the precise disputes before

them. As with the policy question above regarding the scope of the

felony murder statute, providing clarity for determining where a

given crime was committed is best left to the General Assembly. And

to the extent the State wishes to continue prosecuting cases based

on theories like the one advanced here, the bench and bar could use

some help from our legislature in ascertaining the proper venue for

those cases.

I am authorized to state that Presiding Justice Warren and

38
Justice Colvin join in this concurrence.

39