CourtListener 10680393

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318 Ga. 249
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S23A1205. PAYNE v. THE STATE.

COLVIN, Justice.

Appellant Austin Levi Payne appeals his convictions for felony

murder and other crimes related to the death of one-year-old

Journey Cowart (“Journey”).1 On appeal, Appellant contends that

1 Journey died on January 21, 2014. On September 17, 2014, a Bartow

County grand jury charged Appellant and the victim’s mother, Brandy Boyd,
in a 22-count indictment. Appellant and Boyd were charged with four counts
of malice murder (Counts 1-4), six counts of felony murder (Counts 5-10), seven
counts of cruelty to children in the first degree (Counts 11-13, 17-20), three
counts of aggravated battery (Counts 14-16), and one count of battery (Count
22). Appellant was also separately charged with one additional count of cruelty
to children in the first degree (Count 21).
At a jury trial held from May 4, 2015, through May 13, 2015, the jury
found Appellant and Boyd guilty of felony murder (Counts 5-10), cruelty to
children in the first degree (Counts 11-13, 17, 20), aggravated battery (Counts
14-16), and battery (Count 22) and not guilty of the remaining counts. On July
22, 2015, the trial court sentenced Appellant to life in prison without the
possibility of parole for Count 5 (felony murder) with concurrent prison terms
of 20 years each for Counts 17 and 20 (cruelty to children in the first degree)
and a concurrent prison term of 12 months for Count 22 (battery). The court
purported to merge for sentencing purposes all the remaining counts, but some
of the counts were actually vacated by operation of law. See Noel v. State, 297
Ga. 698, 700 (2) (777 SE2d 449) (2015). Appellant timely filed a motion for new
trial on July 22, 2015, and amended it through new counsel on March 4, 2023.
Following a hearing on April 20, 2023, the trial court denied Appellant’s
amended motion for new trial on May 1, 2023. Appellant timely filed a notice
of appeal directed to this Court on May 8, 2023. This appeal was docketed to
this Court’s August 2023 term and submitted for a decision on the briefs.
the trial court erred by denying his motion for a directed verdict

because the evidence was constitutionally and statutorily

insufficient to show that he personally injured Journey or was a

party to inflicting the injuries that resulted in her death. Appellant

further argues that the trial court abused its discretion in excluding

evidence of co-defendant Brandy Boyd’s drug use and erred in

declining his request for a jury charge on grave suspicion. Lastly,

Appellant claims that his trial counsel was constitutionally

ineffective for failing to move to sever his trial. For the reasons that

follow, Appellant’s claims fail.

1. Viewed in the light most favorable to the verdicts, the trial

evidence showed the following. Journey was born on January 10,

2013, to Brandy Boyd and Blake Cowart. In April 2013, Blake

Cowart died. In August 2013, Boyd met Appellant, and the two

started dating and moved into an apartment together with Journey.

Multiple witnesses testified to observing bruises on Journey in

the months leading up to her death. Four witnesses testified that in

late 2013, they observed a bruise on Journey’s forehead and that

2
Boyd’s explanation for the bruise was that Journey hit her head on

the railing of her crib. A babysitter testified that she saw a bruise

on Journey’s left cheek that looked like a handprint in November

2013. A friend testified that at some point, she saw a bruise on

Journey’s ear, which Boyd said had resulted from Journey falling

when she pulled up between the coffee table and the wall, and the

friend suggested taking Journey to urgent care but was told by Boyd

that it was unnecessary. A neighbor testified that, shortly before

Journey died, he saw her with bruises on her neck, face, and arms.

On January 13, 2014, a week before Journey died, Boyd asked

Mellodie Hunt, Blake Cowart’s mother, to watch Journey, who was

sick at the time. Hunt noticed bruises on Journey’s back and took

pictures, which were entered into evidence. Hunt testified that she

took the pictures to keep as a record and that she was afraid because

she did not know why Journey was so bruised. Hunt shared the

pictures only with her husband and daughter, and she told her

husband that she was going to call the police if Journey had a new

bruise later in the week.

3
Boyd’s mother and stepfather testified that, when they took

care of Journey on January 17, 2014, she had a bruised and swollen

ear, which Boyd explained was the result of Journey falling when

pulling up on a table. That same day, Hunt texted Boyd to confirm

that Journey’s birthday party would take place the following day.

The party was originally scheduled for January 10, 2014, the day of

Journey’s first birthday, but it was rescheduled to January 18, 2014,

because, according to Boyd, Journey was not feeling well. Appellant,

Boyd, and Journey did not show up to Hunt’s house on January 18.

When Hunt texted Boyd to find out where they were, Boyd

responded that they were at the doctor’s office because Journey was

sick with croup. However, medical records showed that Journey

never visited her pediatrician or the Floyd County Urgent Care in

January 2014. Hunt texted Boyd multiple times over the following

days, but Boyd did not respond.

A neighbor testified that on the evening of January 21, 2014,

Appellant and Boyd banged on his door, with Journey in Appellant’s

arms, and asked him to drive them to the hospital because Journey

4
appeared to have stopped breathing. The neighbor agreed and

testified that Journey did not look well and that she was “pink” and

stiff. Journey was pronounced dead at the hospital at 10:27 p.m. An

autopsy report stated that injuries to Journey’s head and abdomen

were each sufficient on their own to cause her death. The head

injuries included a fractured skull, multiple areas of internal

bleeding, and four bruises on the exterior of her scalp. The injuries

to Journey’s abdomen included a torn stomach and liver, a distended

stomach, multiple fractured ribs, and several external bruises. The

medical examiner testified that the injuries to her head and

abdomen were caused by direct force and that CPR could not have

caused her abdominal injuries.

In addition to the fatal injuries to her head and abdomen, the

autopsy revealed a fractured arm, a fractured leg, a prolapsed

rectum, and numerous bruises all over her body. The medical

examiner dated the fractured arm as one to two weeks old and the

fractured leg as one to six weeks old at the time of death. She opined

that a “shearing force,” such as someone grabbing and shaking a

5
person’s arm or leg, caused the fractures to her arm and leg. The

medical examiner was unable to date the injury to Journey’s rectum

but testified that it was caused by pressure inside her abdomen from

her abdominal injuries. She concluded that Journey’s death was a

homicide, caused by injuries for which there was no plausible

explanation nor historical account to suggest an accidental injury.

On the day after Journey died, investigators with the Bartow

County Sheriff’s Office searched Appellant and Boyd’s apartment.

Among other things, investigators discovered a bloody bath towel, a

bloody baby outfit, and a bloody baby pillow.

That same day, investigators interviewed Appellant and Boyd.

Investigators testified that Appellant and Boyd told them the

following information about Journey. Appellant said that on

January 21, 2014, Journey woke up around 9:00 a.m., and he fed

her. Boyd said that an hour later, she attempted to feed Journey,

but she refused to eat. Then, they both said that they laid Journey

down for a nap. They both told investigators that they woke her up

from her nap in the early afternoon and gave her a bath before laying

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her down for another nap. They both said that at some point, they

got her up from her nap and fed her formula because there was no

milk in the house. Appellant stated that he later discovered that

Journey had spit up some of her formula after having drunk half the

bottle, that the formula “smelled bad,” and that he thought it was

“spoiled milk.” Boyd also indicated that she thought Journey had

ingested “bad milk,” and said that Journey had a “tight” stomach

and did not seem to be feeling well. Both Appellant and Boyd said

that around 5:30 p.m., they called Appellant’s sister, a nurse, to tell

her that Journey was throwing up and to get her advice.

They both said that later, Boyd’s stepfather dropped off some

milk at their apartment. They said that Journey then started eating

and drinking milk. They both stated that they put Journey to sleep

in her crib in their bedroom. Appellant said that he heard Journey

breathing rapidly, so he got her out of her crib, put her in his bed

with him, and laid her on his chest. Appellant and Boyd said they

both fell asleep in bed and woke up to find that Journey had stopped

breathing. Appellant said he attempted to administer CPR, even

7
though he did not know how. Then, they called 911 and ran upstairs,

beating on neighbors’ doors until they found someone to drive them

to the hospital.

Investigators testified that when asked about Journey’s

previous injuries, Appellant and Boyd told them that Journey

injured her ear. Boyd explained that four or five days prior to

Journey’s death, Journey hit her ear on the coffee table, causing a

bad cut. Boyd said that she took Journey to urgent care but did not

indicated that the cut on her ear would be fine. Appellant said that

he bit Journey’s shoulder to try to wake her up when she was not

breathing and accidentally hit Journey’s head on the door leading

into the emergency room. Boyd stated that Journey did not go to the

doctor regularly, as Journey had never fallen, broken a bone, gotten

cut, or been injured, but that she had been to the hospital for a bad

cough when she was one month old.

2. Appellant argues that the trial court erred in denying his

motion for a directed verdict because the trial evidence was

8
insufficient as a matter of constitutional due process to show that he

personally injured Journey or that he was a party to inflicting those

injuries. He also argues that the trial evidence was insufficient

under Georgia’s circumstantial-evidence statute, see OCGA § 24-14-

6, because the evidence failed to exclude the reasonable hypothesis

that Boyd inflicted Journey’s injuries without Appellant’s

participation. We disagree and therefore affirm the trial court’s

denial of Appellant’s motion for a directed verdict.

“The standard of review for the denial of a motion for a directed

verdict of acquittal is the same as for determining the sufficiency of

the evidence to support a conviction.” Shelton v. State, 313 Ga. 161,

168 (2) (869 SE2d 377) (2022) (citation and punctuation omitted).

Evidence is sufficient as a matter of constitutional due process if “a

rational trier of fact could have found the defendant guilty beyond a

reasonable doubt.” Fortson v. State, 313 Ga. 203, 209 (1) (869 SE2d

432) (2022) (citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)

(99 SCt 2781, 61 LE2d 560) (1979)). When evaluating the sufficiency

of the evidence, “[t]his Court views the evidence in the light most

9
favorable to the verdict, with deference to the jury’s assessment of

the weight and credibility of the evidence.” Id. (citation and

punctuation omitted).

Here, the trial evidence was sufficient as a matter of

constitutional due process to support Appellant’s convictions.

Because there was trial evidence showing that Appellant and Boyd

were Journey’s only caretakers during the period when Journey

sustained the fatal injuries and that those injuries were caused by

non-accidental, direct force, the jury was authorized to conclude that

either Appellant or Boyd or both were responsible for Journey’s

injuries and death. The jury was further authorized to conclude that

Appellant was at least a party to the crimes based on Appellant’s

and Boyd’s purported inability to explain Journey’s extensive

injuries. Specifically, in an attempt to explain Journey’s injuries,

Appellant said that he had administered CPR to Journey and that

Journey had ingested “spoiled” formula, hit her head on a door when

entering the emergency room, and received bruises from pulling up

on the coffee table, and Boyd said that Journey had ingested “bad”

10
formula and hit her head on a coffee table. Appellant’s and Boyd’s

statements failed to explain how Journey could have received such

extensive injuries to her head, abdomen, arm, and leg while in their

care, and the jury was entitled to disbelieve Appellant’s account and

conclude that Appellant was trying to cover up his participation in

the crimes. See Moore v. State, 314 Ga. 351, 354-355 (877 SE2d 174)

(2022) (concluding that “the jury was entitled to discredit [the

defendant’s] testimony and statements about the timing, extent, and

cause of [her child’s] injuries and find that [she] inflicted the fatal

injury during the window of time in which medical experts

estimated the blunt-force trauma occurred,” where the child had

been under the exclusive supervision of both the defendant and her

boyfriend during the relevant time period). See also OCGA § 16-2-

20 (b) (providing that a person is a party to a crime if, among other

things, the person “[d]irectly commits the crime,” “[i]ntentionally

aids or abets in the commission of the crime,” or “[i]ntentionally

advises[ or] encourages . . . another to commit the crime”); Lofton v.

State, 309 Ga. 349, 352-353 (1) (846 SE2d 57) (2020) (noting that,

11
“criminal intent,” for purposes of establishing that a person is a

party to the crime, “may be inferred from presence, companionship,

and conduct before, during and after the offense” (citation and

punctuation omitted)).

The evidence described above was likewise sufficient to support

Appellant’s convictions under OCGA § 24-14-6, Georgia’s

circumstantial-evidence statute, which provides that, when a charge

is based on “circumstantial evidence, the proved facts shall not only

be consistent with the hypothesis of guilt, but shall exclude every

other reasonable hypothesis save that of the guilt of the accused.”

Although Appellant contends that the evidence failed to exclude the

reasonable hypothesis that Boyd alone inflicted the fatal injuries on

Journey, “[w]hether alternative hypotheses are reasonable . . . is

usually a question for the jury, and this Court will not disturb the

jury’s finding unless it is insufficient as a matter of law.” Frazier v.

State, 308 Ga. 450, 453 (2) (a) (841 SE2d 692) (2020).

Here, the jury was authorized to conclude that it was not

reasonable to believe that Boyd alone inflicted the fatal injuries.

12
Journey was under the exclusive supervision of both Appellant and

Boyd during the period when Journey received fatal injuries, and

both Appellant and Boyd gave statements that downplayed the

injuries Journey sustained while in their care and failed to account

for the extensive damage to Journey’s body. From this, the jury could

conclude that it was unreasonable to believe that Boyd acted alone

in committing the crimes. See Moore, 314 Ga. at 354-355 (holding

that “the evidence was sufficient to enable the jury to reject as

unreasonable the alternative hypothesis that [the defendant’s

boyfriend] alone was responsible for inflicting the blunt force

trauma that led to [the defendant’s child’s] death” in part because

the defendant had “downplayed the injuries [her child] received

while in her care,” thereby entitling the jury to disbelieve her

explanations and find that she was responsible for inflicting the

fatal injuries). Accordingly, Appellant has not shown that the trial

evidence was insufficient to support his convictions as a matter of

constitutional due process or under OCGA § 24-14-6.

3. Appellant argues that the trial court abused its discretion in

13
excluding evidence of Boyd’s drug use. Appellant appears to contend

that the trial court concluded that the evidence was extrinsic

evidence of character subject to OCGA § 24-4-404 (b) (“Rule 404 (b)”),

and that the trial court excluded it under that rule. Because

Appellant contends that the evidence was intrinsic and relevant, he

appears to argue that the court should not have applied Rule 404 (b)

and should have instead assessed whether the evidence was

admissible under OCGA § 24-4-403 (“Rule 403”). See Smith v. State,

307 Ga. 263, 272 (2) (c) (834 SE2d 1) (2019) (holding that “intrinsic”

evidence is “outside the reach of Rule 404 (b)” (citation and

punctuation omitted)). See also Middlebrooks v. State, 310 Ga. 748,

751 (2) (b) (854 SE2d 503) (2021) (“Intrinsic evidence must satisfy

Rule 403.”). Accordingly, Appellant faults the trial court for failing

to conduct a Rule 403 analysis and argues that excluding the

evidence under that rule would have been an abuse of discretion. We

conclude, however, that the record belies Appellant’s description of

the trial court’s evidentiary rulings, that the trial court did in fact

assess the admissibility of the evidence under Rule 403, and that the

14
court did not abuse its discretion in excluding the evidence under

that rule. This enumeration of error therefore fails.

In a pretrial hearing, the State moved to admit evidence of

Boyd’s drug use under Rule 404 (b) for the purpose of proving Boyd’s

motive. The evidence included a witness who would testify that

during Journey’s life, Boyd often used methamphetamine,

unprescribed Xanax, and marijuana, and that “she would get people

away so she could do drugs.” The State argued that the evidence was

admissible to show motive insofar as “[Journey] got in the way of her

drug use and . . . [Boyd] essentially favored using drugs over taking

care of her child.” Over Boyd’s objection, the trial court granted the

State’s motion, noting that the evidence was “tied in together” with

events surrounding Journey’s death.

At trial, Boyd renewed her objection to evidence of her drug

use. In response, the trial court appeared to reverse course on its

prior ruling, directing the State to not mention the drug use in its

opening statement and to make a “detailed proffer” before any

witnesses testified to the drug use. The State did not make such a

15
proffer, and, during the State’s case in chief, the trial court sustained

several objections when witnesses referenced Boyd’s drug use.

Later at trial, Appellant asked the trial court to vacate its

rulings excluding evidence of Boyd’s drug use and to admit the

evidence.2 Appellant argued that the evidence should be admitted

because it showed Boyd’s motive, intent, and state of mind. But the

trial court ruled that the evidence was inadmissible because “the

probative value of that evidence[ ] is substantially outweighed by

the danger of unfair prejudice in this case.” Appellant then asked

the trial court, “To be clear, Your Honor, for the record, you are not

relying on [R]ule 404 (b)?” The trial court responded, “I am relying

on 401, 402, 403, 404 (b) . . . . The Court believes it relied on the

appropriate rules of evidence, took them all into consideration.”

Here, Appellant has failed to show that the trial court abused

its discretion in excluding the evidence of Boyd’s drug use. As an

initial matter, the record belies Appellant’s contention that the trial

2 We assume without deciding that this request preserved for ordinary

appellate review Appellant’s challenge to the court’s exclusion of the drug use
evidence.
16
court did not apply Rule 403 in assessing the admissibility of the

evidence. Although the court did not cite a specific rule when issuing

its preliminary rulings on the matter, when definitively ruling that

the evidence of drug use was inadmissible, the court stated that it

was “relying on” Rule 403 and expressly invoked the Rule 403

standard, concluding that evidence of Boyd’s drug use was

inadmissible because “the probative value of that evidence[ ] is

substantially outweighed by the danger of unfair prejudice in this

case.” See OCGA § 24-4-403 (“Relevant evidence may be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”). Thus, contrary to

Appellant’s contention, the trial court applied Rule 403 in assessing

the admissibility of the drug evidence.

Further, Appellant has not shown that the trial court abused

its discretion in concluding that the evidence of Boyd’s drug use was

inadmissible under Rule 403. Appellant argues that the evidence

17
was highly probative because it would have allowed him to present

a complete “picture of the circumstances of Journey’s short life and

her mother’s continuing role in the abuse and neglect of her

children” so that he could “attribute Journey’s injuries and death

directly to Ms. Boyd.” But he fails to address the prejudicial nature

of the drug use evidence, which could have created the potential for

the jury to convict Boyd on an improper basis, namely, her character

as a drug user. See Hood v. State, 299 Ga. 95, 103-105 (4) (786 SE2d

648) (2016) (holding that the trial court abused its discretion under

Rule 403 in admitting evidence about the appellant’s “past drug

deals” in part because it “had a tendency to suggest that [the]

[a]ppellant should be convicted because he was a seasoned drug

dealer, the kind of man who preys on people’s addictions, who

repeatedly breaks the law, and who deserves to be punished”).

Therefore, he has not shown that the trial court abused its discretion

in concluding that the risk of unfair prejudice substantially

outweighed the probative value of the drug use evidence.

4. Appellant argues that the trial court erred in failing to give

18
a requested jury charge on grave suspicion. We disagree.

In his written requests to charge the jury, Appellant asked for

an instruction on grave suspicion stating that “[f]acts and

circumstances that merely place upon the defendant a grave

suspicion of the crime charged or that merely raise a speculation or

conjecture of the defendant’s guilt are not sufficient to authorize a

conviction of the defendant.” The trial court denied the request,

concluding, “It’s adequately covered in the burden of proof charge

and this charge as a whole,” and Appellant’s trial counsel objected.

When charging the jury, the trial court instructed the jury, as

relevant here, that the defendants were presumed to be innocent

until proven guilty, that the State had the burden to prove every

element of the indicted crimes beyond a reasonable doubt; and that

neither mere association with persons involved in a crime nor mere

presence at the scene of a crime constituted sufficient evidence to

convict a person of being a party to a crime. The court did not

instruct the jury on grave suspicion, and following the jury charge,

Appellant reiterated his prior objection to the court’s refusal to give

19
that instruction.

To determine whether a trial court erred in failing to give a

requested jury instruction, we must “read and consider the

instructions as a whole.” Stafford v. State, 312 Ga. 811, 820 (4) (865

SE2d 116) (2021). Where the jury charge, taken as a whole,

sufficiently instructs the jury on a point of law, a trial court does not

err in failing to give an “unnecessary,” “additional instruction.” Id.

at 820-821 (4).

Here, the trial court’s instructions on reasonable doubt, the

presumption of innocence, mere presence, and mere association

adequately covered the requested grave suspicion charge. Thus,

considering the complete instructions given to the jury, the trial

court did not err in refusing to charge the jury on grave suspicion.

See Adkins v. State, 314 Ga. 477, 483 (3) (877 SE2d 582) (2022)

(holding that the trial court did not err in refusing “to give the

requested charge on grave suspicion because the concept was

covered in other jury instructions that the court did give to the jury,”

including its instructions “on reasonable doubt, the presumption of

20
innocence, and mere presence”).

5. Appellant argues that trial counsel was constitutionally

ineffective for failing to move to sever Appellant’s trial from Boyd’s

trial after the trial court excluded the evidence of Boyd’s drug use.

This enumeration fails because Appellant failed to show deficient

performance.

Before trial, the trial court denied Boyd’s motion to sever her

case from Appellant’s. When asked whether Appellant had joined

Boyd’s motion to sever, trial counsel responded, “We indeed do not

move to sever and would oppose it.” At the hearing on Appellant’s

motion for new trial, Appellant’s trial counsel testified that he chose

to not move to sever Appellant’s trial because it would have been

“harder to make that case.” Trial counsel explained that

there was absolutely no evidence that [Appellant] did
anything with [b]aby Journey other than care for her and
[that he was] the only one who seemed to care for her. The
only way we would be able to show that in this trial . . .
was [to show] the . . . position of his loving concern for that
baby versus the callousness of . . . Boyd . . . . I thought
that the jury would be able to see they’re both in the same
household, but they do not stand in relation to what
happened to this child in the same position.

21
Trial counsel testified that one way he sought to distinguish

Appellant’s position from Boyd’s was through evidence of Boyd’s

drug use. As noted above, the trial court preliminarily ruled that

evidence of Boyd’s drug use would be admissible but ultimately

excluded the evidence. When asked whether he reconsidered

severance after the evidence was excluded, trial counsel testified,

“[I]t was too late to sever it or move to sever or it didn’t occur to me

to do so.”

In its order denying Appellant’s motion for new trial, the trial

court ruled that trial counsel’s decision to not move for severance so

Appellant could contrast Appellant’s and Boyd’s behavior toward

Journey was an “objectively reasonable trial strategy and tactic.”

To succeed on an ineffective-assistance-of-counsel claim, a

defendant must show deficient performance by trial counsel and

resulting prejudice. See Strickland v. Washington, 466 U. S. 668,

687 (III) (104 SCt 2052, 80 LE2d 674) (1984). Proving deficient

performance requires a defendant to show that “no reasonable

22
lawyer would have done what his lawyer did or would have failed to

do what his lawyer did not.” Evans v. State, 315 Ga. 607, 611 (2) (b)

(884 SE2d 334) (2023) (citation and punctuation omitted). To show

prejudice, a defendant must show “that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial

would have been different.” Washington v. State, 313 Ga. 771, 773

(3) (873 SE2d 132) (2022). “If [a defendant] fails to make a sufficient

showing on one part of the Strickland test, we need not address the

other part.” Id.

Here, Appellant failed to show that his trial counsel performed

deficiently. At the motion-for-new-trial hearing, trial counsel

explained his strategy of attempting to show that Appellant was not

a guilty party by contrasting Appellant with Boyd. And the

transcript of closing arguments shows that, even after the drug

evidence was excluded, trial counsel’s strategy remained viable, as

he was able to draw on points of contrast between Appellant and

Boyd to argue that Boyd, rather than Appellant, was a guilty party.

Specifically, trial counsel argued that Journey served as a living

23
reminder to Boyd of Journey’s deceased father, giving Boyd a motive

to harm Journey that Appellant did not share. Trial counsel also

argued that, unlike Appellant, Boyd was possessive toward Journey

and tried to hide Journey’s injuries from others, suggesting that she

was the one who inflicted the injuries. Trial counsel also contrasted

the two co-defendants by describing Appellant as so blinded by love

that he was unaware of what Boyd was doing to Journey.

Because Appellant has not shown that no competent counsel

would have chosen to pursue trial counsel’s strategy, Appellant’s

ineffective assistance claim fails. See, e.g., Jackson v. State, 281 Ga.

705, 707-708 (6) (642 SE2d 656) (2007) (holding that trial counsel

was not deficient for failing to seek severance because his strategy

of not severing “to enable the jury to focus their outrage on the co-

defendant rather than [the defendant]” was reasonable).

Judgment affirmed. All the Justices concur.

24
Decided February 6, 2024.

Murder. Bartow Superior Court. Before Judge Howell, Senior

Judge.

Katherine M. Mason, for appellant.

Matthew W. Rollins, District Attorney, A. Brett Williams,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Clint C. Malcolm, Meghan

H. Hill, Senior Assistant Attorneys General, Stephany J. Luttrell,

Assistant Attorney General, for appellee.

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: February 6, 2024

S23A1205. PAYNE v. THE STATE.

COLVIN, Justice.

Appellant Austin Levi Payne appeals his convictions for felony

murder and other crimes related to the death of one-year-old

Journey Cowart (“Journey”).1 On appeal, Appellant contends that

1 Journey died on January 21, 2014. On September 17, 2014, a Bartow

County grand jury charged Appellant and the victim’s mother, Brandy Boyd,
in a 22-count indictment. Appellant and Boyd were charged with four counts
of malice murder (Counts 1-4), six counts of felony murder (Counts 5-10), seven
counts of cruelty to children in the first degree (Counts 11-13, 17-20), three
counts of aggravated battery (Counts 14-16), and one count of battery (Count
22). Appellant was also separately charged with one additional count of cruelty
to children in the first degree (Count 21).
At a jury trial held from May 4, 2015, through May 13, 2015, the jury
found Appellant and Boyd guilty of felony murder (Counts 5-10), cruelty to
children in the first degree (Counts 11-13, 17, 20), aggravated battery (Counts
14-16), and battery (Count 22) and not guilty of the remaining counts. On July
22, 2015, the trial court sentenced Appellant to life in prison without the
possibility of parole for Count 5 (felony murder) with concurrent prison terms
of 20 years each for Counts 17 and 20 (cruelty to children in the first degree)
and a concurrent prison term of 12 months for Count 22 (battery). The court
purported to merge for sentencing purposes all the remaining counts, but some
of the counts were actually vacated by operation of law. See Noel v. State, 297
the trial court erred by denying his motion for a directed verdict

because the evidence was constitutionally and statutorily

insufficient to show that he personally injured Journey or was a

party to inflicting the injuries that resulted in her death. Appellant

further argues that the trial court abused its discretion in excluding

evidence of co-defendant Brandy Boyd’s drug use and erred in

declining his request for a jury charge on grave suspicion. Lastly,

Appellant claims that his trial counsel was constitutionally

ineffective for failing to move to sever his trial. For the reasons that

follow, Appellant’s claims fail.

1. Viewed in the light most favorable to the verdicts, the trial

evidence showed the following. Journey was born on January 10,

2013, to Brandy Boyd and Blake Cowart. In April 2013, Blake

Cowart died. In August 2013, Boyd met Appellant, and the two

Ga. 698, 700 (2) (777 SE2d 449) (2015). Appellant timely filed a motion for new
trial on July 22, 2015, and amended it through new counsel on March 4, 2023.
Following a hearing on April 20, 2023, the trial court denied Appellant’s
amended motion for new trial on May 1, 2023. Appellant timely filed a notice
of appeal directed to this Court on May 8, 2023. This appeal was docketed to
this Court’s August 2023 term and submitted for a decision on the briefs.
2
started dating and moved into an apartment together with Journey.

Multiple witnesses testified to observing bruises on Journey in

the months leading up to her death. Four witnesses testified that in

late 2013, they observed a bruise on Journey’s forehead and that

Boyd’s explanation for the bruise was that Journey hit her head on