In the Supreme Court of Georgia

Decided: June 30, 2022 S 2 2 A 0 0 93

. McIVER v. THE STATE

.

B OGGS , Presiding J ustice. At a 201 8 jury trial, Claud Lee “ Tex ” McIver III was convicted of felony murder and other crimes arising out of the shooting death of his wife, Diane McIver

. 1 He appeals, asserting among other enumerations of error that the trial court erred in refusing his

1 The shooting occurred on September 25, 2016. McIver was originally indicted in April 2017; on August 22, 2017, he was reindicted for malice murder (Count 1), felony murder (Count 2), aggravated assault (Count 3), possession of a firearm during the commission of a felony (Count 4), and three counts of influencin g a witness (Counts 5

- 7). McIver was tried before a jury from March 5 to April 23, 2018. The trial court granted a directed verdict of acquittal as to two counts of influencing a witness, and the jury found McIver not guilty of malice murder but guilty of felony murder, aggravated assault, the firearm possession charge, and the remaining count of influencing a witness. On May 23, 2018, McIver was sentenced to serve life in prison for felony murder, five years in prison for influencing a witness concurrently with the felony murder conviction, and a suspended concurrent sentence of five years on the firearm charge. The aggravated assault merged with the felony murder count. McIver filed a timely motion for new trial, which was amended on February 3, 2020, and March 10, 2020. After a hearing on October 23, 2020, the motion was denied on July 2, 2021. McIver’s notice of appeal was filed on July 6, 2021, and amended on July 13, 2021. The case was docketed in this Court for the term beginning in December 2021, and orally argued on January 19, 2022.2 request to charge the jury on the lesser grade of involuntary manslaughter under OCGA § 16

- 5

- 3 (b) and in allowing the State to introduce allegedly i nadmissible and prejudicial evidence and make improper comments during closing argument

. We conclude that t he trial court erred in refusing McIver ’ s
req uest to charge on the lesser grade of involuntary manslaughter, because the charge was authorized by law and some evidence supported the giving of the charge . We further conclude that the failure to give the charge was not harmless error , b ecause we cannot say that it is highly probable that this error did not contribute to the jury ’ s verdicts. We therefore reverse McIver ’ s convictions for felony murder and possession of a firearm in the commission of a felony

. 2 We do not decide issues that are unlikely to recur if the State elects to retry McIver, but we do address certain evidentiary issues. W e see no abuse of discretion in admitting some of the challenged evidence, but other evidence lacked relevance or its probative value

2 McIver does not enumerate any error on appeal with respect to his conviction for influencing a witness, which is therefore affirmed.3 was substantially outweighed by the danger of unfair prejudice , so that unless the evidentiary posture changes for any retrial, that evidence should not be admitted again

. 1. The evidence at trial

. 3 The evidence presented at trial showed the following: L ate in the evening of September 25, 2016, McIver, Diane, and Diane ’ s close friend, Dani Jo Carter, were on their way back from a weekend at the McIvers ’ property in Putnam County , driving to Diane ’ s condo minium in the Buckhead area of Atlanta after a stop for dinner in Conyers . Carter testified that she was driving, Diane was in the front passenger seat, and McIver was in the rear passenger seat , at times conversing and at other times asleep

. Carter was not aware of
any argument or disagreement between Diane and McIver that weekend or during the drive

. When they got onto the Downtown Connector in Atlanta, traffic

3 Because in this case we must consider whether the trial court’s error was harmful an d therefore requires reversal, we review the evidence in some detail and not only in the light most favorable to the jury ’ s verdicts. See Strong v. State , 309 Ga. 295, 296 n.2 (845 SE2d 653) (2020).4 was heavy , and Carter said they needed to get off the interstate and go up Peachtree Street. Diane said something to McIver, but he did not respond, and Diane told Carter to g et off at the Edgewood Avenue exit. After they exited the interstate , McIver said, “ Girls, I wish you hadn ’ t done this. This is a really bad area , ” and asked Diane to hand him his gun from the center console . Diane handed him the gun, a .38

- caliber revolve r, which was not in its holster , which was also in the center console, but rather in a plastic grocery bag. Diane instructed Carter to turn on to Piedmont Road and continue north. Carter assumed that McIver had fallen asleep again, because he did not join i n their conversation. Sometime later, t hey were stopped at a traffic light on Piedmont Road , at 14th Street, when Carter heard several clicks and asked what Diane was doing; she responded that she was locking the doors. At that moment Carter heard a loud “ boom ” and Diane swung around and asked,

“ Tex, what did you do? ” McIver responded that “ the gun discharged. ” Carter saw the gun in McIver ’ s hand, pointing down, still in the5 plastic bag. The bullet passed through the back of the front passenger seat , striki ng Diane in the back. McIver instructed Carter to drive to Emory University Hospital on Clifton Road

. 4 At the hospital, when asked how the shooting occurred, Diane told doctors it was an accident. Carter told the police it was “ a horrible accident

. ” Diane died during surgery as a result of internal injuries to her spine, pancreas, kidney, and stomach. According to some witnesses at the hospital , at times McIver did not appear to be upset or grieving

. The State presented evid ence that McIver told the police that he fell asleep with the gun in his lap and the gun fired , and that he made statements at the hospital that the gun discharged accidentally when the car went over a bump. The State also presented testimony from a nurse who was not involved

4 Although the State argued at trial that Emory Hospital is fa rther than Grady Memorial Hospital from the scene of the shooting , the actual distances were never established. Moreover, while evidence was presented that Grady is better equipped to treat gunshot wounds, during oral argument in this Court, the State ’s counsel acknowledged that no evidence was presented that McIver believed that Grady was so equipped or that he intentionally directed Carter to drive to Emory to avoid going to Grady.6 in treating Diane , who said that she was passing by in the hospital hallway when she overheard McIver say, “ I was cleaning my gun in the bathroom when I shot her. ” McIver later told a friend that there had been a “ car accident ” and Diane had died. H e made several
sta tements within the hearing of police officers and others indicating that he “ could not go to jail, ” that he knew “ how these things can go down, ” and that “ this doesn ’ t look good. ” McIver also tol d Carter t o say that she had just come to the hospital as a family friend, but she told him she could not lie. A firearms examiner for the State determin ed that McIver ’ s double

- action .38

- caliber revolver was in good working order and , due to the internal hammer block , could not have disc harged without the trigger being pulled. The trigger pull was either 2 1⁄4 pounds with the hammer cocked or 12 1⁄4 pounds with the hammer uncocked . An accident reconstruction expert for the State examined the pistol and the vehicle and testified , based on the trajectory of the bullet, that McIver did not have the pistol in his lap but was holding the pistol in a raised position, above the plane of his lap, at the time7 it was fired. But an expert for the defense also examined the pistol and the vehicle and concl uded, to the contrary, that the trajectory and the limited space in the rear seat made it “ physically impossible ” for the gun to have been held upright, and that the bullet ’ s path showed that the gun was lying on its side resting on McIver ’ s lap when it di scharged. McIver also elicited testimony from a State ’ s witness that McIver suffered from a sleep disorder that could cause him to make involuntary movements if he was startled awake. The State presented a substantial amount of evidence regarding the McIvers ’ financial circumstances. McIver and Diane were married in 2005, a second marriage for both of them. McIver was a partner at a large Atlanta law firm; Diane was wealthy and an active business owner, the president of one real estate business and an owner or part owner of three other businesses. The McIvers kept their business interests and sources of income separate . Diane owned a condomin i um in Buckhead, and the McIver s owned a rural property in Putnam County, referred to as “ the ranch, ” where they8 spent most weekends. They covered the expenses for their own propert ies , but Diane funded some improvements to the ranch. Before the ir marriage, Diane loaned McIver $750,000. At the time of the marriage, McIver gave Diane her ownership interest in the

ranc h, which they held as joint tenants with right of survivorship. In 2011, one of Diane ’ s companies loaned McIver an additional $350,000 through a promissory note secured by the ranch property. The note was renewed in 2014, payable in 2017 or on demand withi n 90 days. If the property was foreclosed on, Diane as sole owner of the lending company could have deeded full title to the property to herself. McIver executed a will in 2005, providing that his interest in the ranch would go to Diane if she survived him , and the residue of the estate would go to one of his adult children. Diane executed a will in 2006 that contain ed substantial bequests to McIver and establish ed a trust for his benefit. Diane had no children but was very close to the McIvers ’ godson . Her will was executed before their godson was born and so did not include him, but s everal witnesses9 testified that she wished to leave the ranch to him. The State presented evidence that McIver and Diane disagreed about how the ranch should be disposed of after both of them died. Codicils to Diane ’ s will were prepared in 2007 and in 2009 or 2010 but were never executed. 5 McIver executed a codicil to his will in 2009, which reiterated that Diane was to receive all of his interest in the ranch if he predeceas ed her. An attorney testified that between 2009 and 2011, McIver and Diane discussed executing new wills with him

. McIver later made several appointments for the couple to discuss the contents of the new wills , but cancelled them. The attorney testified th at no new wills were ever prepared. 6

5 The State elicited testimony from a neighbor and friend of the McIv ers that approximately three years before Diane’s death, she told the witness that she had made changes to her will to remove some beneficiaries. Diane’s attorney testified that he had prepared a codicil in 2007 to remove a female friend with whom Diane ha d had a falling out, and to add several individuals including the McIvers’ godson as beneficiaries, but that codicil was never executed. Neither of the two attorneys who worked for the McIvers on estate matters testified to the contents of the second codic il, and it was not admitted into evidence. 6 No testimony was presented as to the contents of any new will, and no such will was ever found. The only evidence regarding even the existence of a second will was the testimony of a witness who worked in Diane’ s office that approximately two years before Diane’s death, Diane told the witness that a10 The State also presented evidence suggesting that McIver was experiencing financial difficult y as a result of his impending retirement from his law firm. He had recently become an “ income partner, ” which meant that he w as paid a set salary rather than a share of profits. His financial position had been worsening for several years, and he had told friends that he did not have enough money to cover expenses. The State presented testimony that Diane had regularly transferre d money to McIver, that he would have had a negative cash flow but for those transfers , and that before Diane ’ s death, McIver ’ s net worth was approximately $1.5 million, but after her death, it increased to between $3.6 million and $6.9 million. Several months after Diane ’ s death, McIver sold her furs, jewelry and other personal items through an auction company. A ccording to
t he attorney for the estate , he recommended the sale to pay cash bequests specified in Diane ’ s will , as well as expenses of and clai ms

document the witness had copied for her was “my new will.” The witness did not look at the contents of the document, but she testified that it was somewhere between t wo and ten pages long. Diane’s 2006 will was 19 pages long, while the unexecuted 2007 codicil is 5 pages long.11 against the estate. The trial took place over a seven

- week period in March and April of 2018. The State asserted that McIver committed malice murder and felony murder based on aggravated assault , while McIver contended that Diane ’ s death was caused by a n accident. The jury was charged on the indicted crimes and also involuntary manslaughter in the commission of an unlawful act as a lesser included offense of malice murder and felony murder , but not on involuntary manslaughter in the commission of a lawfu l act in an unlawful manner as a lesser included offense

. The jury deliberated for more than four days, sending numerous notes to the trial court , including a request to inspect the vehi cle involved , which was arranged . On the f if

t h day of deliberation s , the jury sent a note indicating that it was unable to reach a verdict as to intent on the indicted counts of malice murder, felony murder, aggravated assault, and influencing a witness

. After an extended discussion with counsel , the trial court gave the jury a slightly modified pattern12 Allen charge

. 7 The jury then returned its verdict s , finding McIver not guilty of malice murder but guilty of felony murder, aggravated assault, influencing a witness, and possession of a firearm in the commission of a felon y. 8
2

. Refusal of requested charge on OCGA § 16

- 5

- 3 (b). McIver contends that the trial court erred in refusing his written request to instruct the jury on the lesser grade of involuntary manslaughter pursuant to OCGA § 16

- 5

- 3 (b)

. 9 We

7 See Allen v. United States , 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896); Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.70.70 (4th ed. 2007) (Jury (Hung)). 8 The verdict form provided blanks for each count of the indictment, and the jury was instructed that under “Count 1 (Murder)” and “Count 2 (Felony murder),” it had the option for a finding of “Guilty of involuntary manslaughter” as a lesser included offense , and both counts contained such a blank . The jury did not mark either of those blanks

. 9 OCGA § 16

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- 3 provides in its entirety: (a) A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years. (b) A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of anot her human being without any intention to13 agree . The offense of involuntary manslaughter can be committed in two ways : causing the death of another without any intention to do

so “ by the commission of an unlawful act other than a felony, ” OCGA § 16

- 5

- 3 (a), which is a felony, or “ by the commission of a lawf ul act in an unlawful manner likely to c ause death or great bodily harm, ” OCGA § 16

- 5

- 3 (b) , which is a misdemeanor

. 10 In extended discussions during the charge conference, the trial
court s tated : [W]e have three tiers of potential culpability. If the jury were to find that Mr. McIver were merely criminally negligent for holding a loaded gun pointed at his wife ’ s
do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawfu l manner, upon conviction thereof, shall be punished as for a misdemeanor. 10 We note that, while the terms “felony” and “misdemeanor” are sometimes used to distinguish the provisions of OCGA § 16

- 5

- 3 (a) and (b), that terminology should not be used before the jury. See Johnson v. State , 261 Ga. 236, 239 (5) (404 SE2d 108) (1991). See also Paul M. Kurtz and Robert E. C le ar y , Jr., C RIMINAL O FFENSES AND D EFENSES IN G EORGIA 844 ( 2019 ed. ) (suggesting the terms “unlawful act” involuntary manslaughter and “crimin al negligence” involuntary manslaughter). Hereafter in this opinion, we will use the statutory language of “unlawful act” and “unlawful manner” to differentiate the two offenses.14 back in a car, then we ’ d be talking about misdemeanor involuntary manslaughter [i.e. , OCGA § 16

- 5

- 3 (b)] . If it is, in fact, [the crime of] reckle ss conduct, then it ’ s felony involuntary manslaughter [i.e. , OCGA § 16

- 5

- 3 (a)] . And then if it was an intentional act, then it ’ s as charged.
B ut the night before closing arguments , the trial court informed the parties that it would not give the instruction on the misdemeanor form of involuntary manslaughter

– the commission of a lawful act in an unlawful manner

. 11 With respect to the homicide counts, t he court instruct ed the jury on malice murder, felony murder based on aggravated assault, unlawf ul act involuntary manslaughter under OCGA § 16

- 5

- 3 (a) based upon the offense of “ reckless conduct , ” see OCGA § 16

- 5

- 60 (b) , 12 and accident

.

11 Before closing arguments began, the trial court noted that it had sent the revised charge to counsel via email. McIver’s counsel objected to the omission of an instruction on OCGA § 16

- 5

- 3 (b), asserting that reckless conduct and negligent conduct were different, and the trial court noted that “you and I disagree,” but gave no ex planation. 12 OCGA § 16

- 5

- 60 (b) provides: A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.15 In its order denying McIver ’ s motion for new trial, the trial
court only briefly addressed the question of the ju ry instruction on unlawful manner involuntary manslaughter: Defendant, in his requests to charge, sought to have the Court charge the jury on misdemeanor involuntary manslaughter (O.C.G.A. § 16

- 5

- 3 (b)), arguing that some evidence supported a finding that, in killing his wife, Defendant engaged in a lawful act in an unlawful manner. The Court found both that the record did not support such a charge and that the pertinent case law disallowed such a charge. See, e.g., Manzano v. State , 282 Ga. 557, 559 [(651 SE2d 661)] (2007). Having reviewed the post

- trial arguments of both parties, the Court maintains the position articulated at trial that a charge on misdemeanor involuntary manslaughter was supported neither by the record nor existing precedent and thus tha t is was not error to exclude such a charge from the instructions provided to the jury. McIver argues that there was , at a minimum, slight evidence that he was engaged in a lawful act ( which he describes as falling asleep with a gun on his lap in the back seat of a vehicle ) in an unlawful manner ( that is, in a criminally negligent manner likely to cause death or great bodily harm ) when t he gun inadvertently

The amendment to the statute that will take effect on July 1, 2022 does not alter the wording of subsection (b).16 discharged and killed D i ane . He therefore contends that the trial

cour t erred in denying his written request to charge the jury on unlawful manner involuntary manslaughter. The State argues that the trial court properly declined to instruct the jury on unlawful

manner involuntary manslaughter, relying upon decisions such as Manzano to contend that any defendant who handles a gun with fatal results, even if unintentional, “ has necessarily committed the misdemeanor of reckless conduct. ” (Citations and punctuation omitted.) 282 Ga. at 559 (3) (a)

. To resolve this dispute, we mus t look first t o the extensive history of the law of involuntary manslaughter, including the changes made by the General Assembly in altering that law and other related statutes in its general revision of the C riminal C ode in
1968. We must always consider statut ory text in its context, “ which includes the structure and history of the text and the broader context in which that text was enacted, including statutory and decisional law that forms the legal background of the written text. ” (Citations and punctua tion omitted.) Seals v. State , 311 Ga. 739,17 740

- 741 (1) (860 SE2d 419) (2021). W e conclude from our review that Georgia has a long

established , statutory homicide offense of involuntary manslaughter , with two grades : first, the felony offense of involunta ry manslaughter in the commission of an unlawful act other than a felony, and second, the misdemeanor offense of involuntary manslaughter in perform ance of a lawful act but with criminal negligence . This distinction was retained by the General Assembly in the 1968 revision of the Criminal Code

. We further conclude that the element of criminal negligence in unlawful

manner involuntary manslaughter is distinguishable fro m ordinary negligence on the one hand and from the mental state required for statutory reckless conduct on the other , and that the l aw does not forbid the giving of an instruction on unlawful manner involuntary manslaughter in every case involving a firearm. Finally, slight evidence authorizing the refused instruction was presented at trial, and we cannot say that it is highly probable that the error did not contribute to the jury ’ s verdict

.18 ( a ) History of the involuntary manslaughter statute

. The distinction in Georgia between the two grades of involuntary manslaughter dates back to the 181 6 Penal Code . See Ga. L. 1816 , p. 142. There, the offense of manslaughter was defined as follows : § 5 . Manslaughter , is homicide in the second degree; manslaughter is the killing of a human creature without malice , express or implied, and without any mixture of deliberation whatever. It must be voluntary, upon a sudden heat of passion ; or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection. After §§ 6 and 7 , whi ch further defined voluntary manslaughter and its prescribed punishment , i nvoluntary manslaughter was further defined as follows: § 8

. Involuntary manslaughter, shall consist in the killing of a human being, without any intention to do so; but in the commi ssion of an unlawful act, or a lawful act, which probably might produce such a consequence. § 9. Involuntary manslaughter, in the commission of an unlawful act, s hall be punished by confinement or labor , or solitude, in the p enitentiary, for a term not le ss than six months , and not longer than three years. § 10. Involuntary manslaughter, in the commission19 or performance of a lawful act, where there has not been observed necessary discretion and caution, shall be punished by confinement or labor, or solitu de in the penitentiary, for a term not less than three months, and not longer than one year. Ga. L. 1816 at pp. 147

- 148. With the enactment of the 1817 Penal Code , § 8 of the involuntary manslaughter statute was revised to include the first reference to “ unlawful manner, ” as well as to add a provision in

e ffect describing felony murder: Involuntary manslaughter, shall consist in the killing of a human being, without any intention to do so; but in the commission of an unlawfu l act, or a lawful act, which probably might produce such a consequence, in an unlawful manner: Provided always , that where such involuntary killing shall happen in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious or riotous intent, the offence shall be deemed and adjudged to be murder. 13 Ga. L. 1817 at p. 96 . See also Oliver H. Prince, A D IGEST OF THE

13 The second clause, as later modified by the 1833 Penal Code, was removed in 1968 when a separate felony murder statute was enacted, now OCGA § 16

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- 1 (c) . For a history of felony murder statutes in Georgia, see genera lly Shivers v. State , 286 Ga. 422, 425 n.3 (1) (688 SE2d 622) (2010) (Nahmias, J., concurring specially).20 L AWS OF THE S TATE OF G EORGIA 347 ( 1st ed. 1822)

. 14 The language used to define the elements of the two grades of involuntary manslaughter w as carried forward through subsequent codes unchanged . Although t he relevant code sections were revised in some respects in the Code of 1933 , 15 they c ont inued in force until the

14 Available at University of Georgia School of Law, Historical Georgia Digests and Codes, https://digitalcommons.law.uga.edu/ga_code/6

. 15 Former 1817 Penal Code § 5 was enacted as Code of 1933 § 26

- 1006 : Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful a ct, or a lawful act without due caution and circumspection

. (Emphasis supplied). Former 1817 Penal Code § 8 was enacted as Code of 1933 § 26

- 1009: Involuntary manslaughter shall consist in the killing of a human being, without any intention to do so , but i n the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner : Provided, that where such involuntary killing shall happen in the commission of an unlawful act which , in its consequences , natura lly tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offence shall be deemed and adjudged to be murder . (Emphasis supplied.) The Code of 1933 combined former 1817 Penal Code §§ 9 and 10 as Code of 1933 § 26

- 1010: Punishment for involuntary manslaughter.

— Involuntary manslaughter, in the commission of an unlawful act, shall be punished by confinement and labor in the penitentiary fo r not less than one nor longer than three years. Involuntary manslaughter, in the commission or performance of a lawful act, where there has21 general revision of the Georgia criminal statutes in 1968

. 16 Th e 1968 revision was intended “ to revise, classify, consolidate, and supersede the present laws relating to crimes and the punishment therefor and to establish new laws relating thereto ” and

“ to provide a new Criminal Code

. ” Ga. L. 1968 , p. 1249

. It was initiated by the appointment of a Criminal Law Study Committee tasked with revis ing the criminal statutes to address “ problems which have arisen due to ambiguities and inconsistencies in the present law. ” Ga. L. 1961 , p. 96, 98; see also Patterson v. State , 299 Ga. 491, 505 (2) (b) (789 SE2d 175) (2016) (Blackwell, J., dissenting). The 1968 Code consolidated the statutes pertaining to

m anslaughter: it eliminated Code of 1933 § 26

- 1006 d efin ing manslaughter general ly . It retained one section defining voluntary manslaughter, Ga. Code Ann. § 26

- 1102, and one defining involuntary manslaughter, Ga. Code Ann. § 26

- 1103 (a) and (b)

. See

not been observed necessary discretion and caution , shall be punished as for a misdemeanor. (Emphasis supplied.) 16 The maximum penalty for unlawful act involuntary manslaughter was increased in 1951 to imprisonment for five years. See Ga. L. 1951, p. 737.22 Ga. L. 1968 at pp. 1276

- 1277. 17 It also removed the language in the involuntary manslaughter statute referring to felony murder, and enacted a separate statute defining felony murder , Ga. Code Ann. §
26

- 1101 (b), now OCGA § 16

- 5

- 1 (c). S ee Ga. L. 1968 at p. 1276

. 18 Significantly for our analysis , in the 1968 revision the General Assembly also created a new , misdemeanor offense, denominated

“ reckless conduct, ” Ga. Code Ann. § 26

- 2910. See Ga. L. 1968 at pp.
1325

- 1326. 19

17 When the Official Code of Georgia Annotated was adopted in 1982, the 1968 revision, Ga. Code Ann. § 26

- 1103 , was carried forward as OCGA § 16

- 5

- 3

. The definitional language was unchanged, other than the removal of two commas, but the language prescribing the penalty was reworded. The maximum penalty for unlawful act involuntary manslaughter was increased in 1984 to imprisonment for ten years. See Ga. L. 1984, p. 397. 18 Ga. Code Ann. § 26

- 1101 (a), unlawful act involuntary manslaughter, further specified that the unlawful act must be “other than a felony,” removing possible ambiguity or inconsistency with respect to t he felony murder statute. 19 As originally enacted, Ga. Code Ann. § 26

- 2910 provided: A person commits a misdemeanor when he causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause the harm or endanger the safety, and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. Ga. Code Ann. § 26

- 2910 was carried forward int o the Official Code of Georgia Annotated as OCGA § 16

- 5

- 60. The text, as amended in 1988 and 2003, is now found at OCGA § 16

- 5

- 60 (b), which, as noted above, provides: A person who causes bodily harm to or endangers the bodily safety23 ( b ) S tatutory c onstruction

. In interpreting statutes, we “ presume that the Gen eral Assembly meant what it said and said what it meant. ” (Citations and punctuation omitted.) Deal v. Coleman , 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) . And in determining a statute ’ s meaning, we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. We must also seek to effectuate the intent of the Georgia legislature. OC GA § 1

- 3

- 1 (a). In this regard, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole. (Citation s and punctuation omitted.) Co ates v. State , 304 Ga. 329,
330

- 331 ( 818 SE2d 622 ) ( 2018 ). “ It is a basic rule of construction that

a statute

. . . should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not

of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exer cise in the situation is guilty of a misdemeanor.24 presumed that t he legislature intended that any part would be without meaning. ” (Citation and punctuation omitted.) Gilbert v. Richardson , 264 Ga. 744, 747

- 748 (3) ( 452 SE2d 476 ) (1994). And

“ [c] ertainly our legislature is presumed to enact statutes with full knowledge o f existing law, including court decisions. ” (Citation and punctuation omitted.) Roberts v. Cooper , 286 Ga. 657, 660 (691 SE2d 875) (2010). Moreover, “ [f]or context, we

. . . look to the other provisions of the same statute, the structure and history of the whole statute, and the other law

— constitutional, statutory, and common law alike

— that forms the legal background of the statutory provision in question. ” (Citations and punctuation omitted.) Tibbles v. Teachers Retirement System of Ga ., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015). And it is “ a core principle of statutory interpretation that changes in statutory language generally indicate an intent to change the meaning of the statute. ” (Citations and punctuation omitted.) Middleton v. State , 309 Ga. 337, 345 (3) (846 SE2d 73) (2020). ( c ) The revision of the involuntary manslaughter statute s .25 In the 1968 revision , the General Assembly retained the distinction between invo luntary manslaughter in the commission of

“ an unlawful act ” and in the commission of “ a lawful act in an unlawful manner. ” But it removed the language “ without due caution and circumspection ” and “ where there has not been observed necessary discretion and caution , ” and altered “ which probably might produce such a consequence , ” i.e. , the death of a nother human being , to “ likely to cause de ath or great bodily harm. ” Presuming significance to th ese textual changes , as we must, we conclude that
t he 1968 revisio n , true to its expressed aim, removed inconsistent or ambiguous language that had defined the offense of unlawful

manner involuntary manslaughter in language that s uggest ed mere civil or ordinary negligence. 20

20 For prior use of the same or similar language in civil contexts, s ee, e.g., Central of Ga. R. Co. v. Price , 121 Ga. 651, 655 (1) (49 SE 683) (1905) (in personal injury action against railroad by employee, “ it was for the jury to say whether or not the plaintiff, on this occasion, acted with due caution and circumspection” ); Merchants ’ Nat

. Bank v. Carhart , 95 Ga. 394, 398 (2) (22 SE 628) (1894) (in action for negligent retention of bank cashier, bank required “ to show reasonable care and circumspection ” in selecting and retaining employee); Savannah, Fla

. & W

. R. Co. v. Slater , 92 Ga. 391 (1) (17 SE 350) ( 1893) (headnote by the Court) (in personal injury action, describing negligence26 This conclusion is also supported by the fact that, while the
pre - 1968 C ode provisions were in effect , this Court and the Court of Appeals had considered the scope of the involuntary manslaughter
statutes and noted that , despite the inclusion of civil or o rdinary negligence language , the unlawful manner involuntary manslaughter statute required something more than ordinary civil negligence

. See Geele v. State , 203 Ga. 369, 373 ( 47 SE2d 283 ) (1948) (noting the statutory language in the involuntary manslaughter
statutes referring to “ due caution and circumspection ” and

“ necessary discretion and c aution ” and the “ culpable neglect ” language in Code of 1933 § 26

- 404, addressing otherwise criminal conduct committed “ by misfortune or accident ” )

. 21 Geele c ites a

of railroad employee in permitting wood to fall from locomotive tender or

“ casting it from the tender without due caution and circumspection ” ); Eason v. Crews , 88 Ga. App. 602 , 615

- 616 (4) (77 SE2d 245) (1953) ( charge of trial court in personal injury action that children not bound “ to exercise the discretion and prudence necessary for their safety, with regard to dangerous agencies .” (Punctuation omitted.)). 21 In Geele , the ap pellants, operators of the Winecoff Hotel in Atlanta, were indicted for unlawful manner involuntary manslaughter after the hotel burned on December 7, 1946. This Court reversed the trial court’s decision overruling appellants’ demurrers, concluding that th e indictment failed to allege any crime. See 203 Ga. at 377.27 number of earlier decisions such as Cain v. State , 55 Ga. App. 376,
379 (1) (190 SE 371) (1937), in which the Court of Appeals concluded that “ criminal negligence ” and “ culpable negligence ” are synonymous, and further conclude d: The degree of neglig ence to be shown on indictment for manslaughter, where an unintentional killing is established, is something more than is required on the trial of an issue in a civil action. A want of due care, or a failure to observe the rule of a prudent man, which prox imately produces an injury, will render one liable for damages in a civil action; but to render one criminally responsible there must be something more, culpable negligence, which under our law is criminal negligence, and is such recklessness or carelessne ss, resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others and a reasonable foresight that injury would result

. (Citations omitted.) Id. at 379

- 380. See also Jordan v. State , 103 Ga. App. 493, 494 (2) (120 SE2d 30) (1961) (in instructing jury on unlawful manner involuntary manslaughter, “ it is the better practice to charge that it must result from criminal negligence, which is something more than ordinary negligence whi ch would authori ze a recovery in a civil action

. ” ( C itations and punctuation28 omitted

. ))

. In effect, the 1968 revision r econciled the involuntary manslaughter statute s with the judicial gloss that had been placed
upon them by removing the references to ordinary negligence. It also addressed the other concern raised in Geele by reconcil ing the language in the statute defining what constitutes a “ crime ” with that of the statute addressing misfortune or accident, removing the reference to “ culpable neglect ” in the latter and sub stituting

“ criminal negligence. ” Se e Code of 1933 § 26

- 201 ( “ Definition of crime or misdemeanor ” ) ; 22 Ga. L. 1968 at p. 1269, enacting Ga. Code Ann. § 26

- 601 ( “ Definition of C rime ” ). 23 Compare Code of 1933 § 26

- 404 ( “ Misfortune or accident as affecting liability ” ) 24 with Ga. L. 1968 at p. 1269, enacting Ga. Code Ann. § 26

- 602 ( “ Misfortune or

22 “A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence.” 23 “A cr ime is a violation of statute of this State in which there shall be a union of [sic] joint operation of act, or omission to act, and intention, or criminal negligence.” 24 “A person shall not be found guilty of any crime or misdemeanor committed by misfortu ne or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect.”29 Accident Not a Crime ” ). 25 But despite these changes to the relevant statutes , and despite the comments of the Criminal Law Study Committee quest ioning the merits of the distinction, 26 the General Assembly retained the separate unlawful act and unlawful manner provisions in the new involuntary manslaughter statute

. Moreover, the legislature retained an unlawful manner involuntary manslaughter statut e despite enacting a new misdemeanor offense of “ reckless conduct. ” Presuming that no part of the statutory scheme is without meaning, and that the General Assembly sought “ to avoid inconsistencies and overlapping laws, ” Patterson , 299 Ga. at 505 (2) (b) ( Blackwell, J., dissenting) , we conclude that the term “ unlawful manner , ” in the

25 “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal s cheme or undertaking, or intention, or criminal negligence.” Ga. Code Ann. § 26

- 602 was carried forward almost verbatim into the current Code as OCGA § 16

- 2

- 2, which provides: “ A person shall not be found guilty of any crime committed by misfortune or acci dent where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence. ” 26 See Ga. Code Ann., Committee Notes to Chapter 26

- 11 , Criminal Homicide p. 522 (Harrison Co. 19 98 ) (referring to the distinction between unlawful act and unlawful manner involuntary manslaughter in the past tense and with disapproval); Kurtz, supra, pp. 844

- 845 n.716 (concluding that the committee notes referred to a change that was proposed but not made).30 involuntary manslaughter statute , requires a mens rea that is more culpable than ordinary or civil negligence, but less culpable than the

men s rea required for the crime of “ reckless conduct , ” now codified

as OCGA § 16

- 5

- 60 (b)

. And, as discussed below, we also conclude, based up on the body of relevant Georgia law, that the mens rea required for unlawful manner involuntary manslaughter is

“ criminal negligence. ” ( d ) Criminal n egligence as an element of unlawful manner involuntary manslaughter

. The term “ c riminal negligence ” was not defined by statute until
2004 , when the General Assembly added a definition to the Code section defining a “ crime. ” S ee Ga. L. 2004 , p. 57 (codified as OCGA § 16

- 2

- 1 ). 27 Before that definition was provided, t he Georgia courts

27 Subsection (b) of that Code sect ion now provides: “Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might be injured thereby.” Criminal negligence is not in itself a crime, but appears in other defini tion s in the Criminal Code . See, e.g., OCGA § 16

- 2

- 1 ( a ) : “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”; OCGA § 16

- 2

- 2: “ A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, in tention, or criminal negligence.” We hold today that it is likewise an element of unlawful manner31 developed interpretations of the term that varied to some exten t depending upon the circumstances ; f or example, if the court was considering whether a defendant ’ s conduc t fell within the scope of the “ misfortune or accident ” statute or whether the conduct fell within one or the other grade of involuntary manslaughter. 28 Moreover, before 1968 there was no separate crime of “ reckless conduct ” that courts were required to dif ferentiate from criminal negligence for purposes of unlawful manner involuntary manslaughter, and indeed there was no statutory definition of

“ criminal negligence ” for some time thereafter . Therefore , when pre

-

involuntary mansl aughter. 28 As LaFave and Scott have observed: Though the legislatures and the courts have often made it clear that criminal liability generally requires more fault than the ordinary negligence which will do for tort liability, they have not so often made it plain just what is required in addition to t ort negligence

— greater risk, subjective awareness of the risk, or both. Statutes are sometimes worded in terms of “ gross negligence ” or “ culpable negligence ” or “ criminal negligence, ” without any further definition of these terms

. . . . The courts thus have had to do their best with little guidance from the legislature, with varying results. Wayne R. LaFave & Austin W. Scott Jr., C RIMINAL L AW § 3.7, at 235

- 237 (2d ed. 1986) , quoted in Black’s Law Dictionary, “Criminal negligence” (11th ed. 2019)

.32 1968 courts analyzed the elements of the offense of unlawful manner involuntary manslaughter , there was no need to carefully distinguish between criminal negligence , the definition of which now includes the word “ reckless ,” and the mens rea now required for statutory “ reckless conduct, ” which may not be precisely what we have referred to as “ recklessness ” in older cases

. 29 See, e.g., Cain , 5 5 Ga. App. at 379

- 380 (1). For example, in Austin v. State , 110 Ga. 748 (36 SE2d 52) (1900) , cited with approval in Geele , this Court noted that [w] here dea th results to one from the discharge of a gun in the hands of another, and there was no intention to kill nor an intention to discharge the gun, the person in whose hands the gun was held would not be guilty of murder, although the gun may have been handle d in a careless and negligent, even reckless manner . In such a case the slayer would be guilty of involuntary manslaughter only, and the particular grade of that crime would depend upon whether it was lawful or unlawful for the slayer to be in possession o f a deadly weapon at the time and place of the killing.

29 As we noted in Dunagan v. State , 269 Ga. 590, 593 n.3 (2) (a) (502 SE2d 726) (1998), the language of pre

- 1968 cases must be considered with “[ g ] reat caution and care ,” because the 1968 Criminal Code made significant changes in the law of homicide, as noted ab ove.33 (Citations omitted ; emphasis supplied .) Id. at 750. 30 And although Geele state d that Austin “ defined negligence, carelessness, and recklessness under the involuntary

- manslaughter statute to mean the same thing, ” 203 Ga. at 375, and that recklessness was required to show either grade of involuntary manslaughter , the Court in Austin seemed to indicate, by use of the qualifying term “ even, ” that recklessness was more culpable than either ordinary neglige nce or carelessness , even before the enactment of the statutory offense of reckless conduct . See 110 Ga. at 750. 31 O ther decisions of Georgia courts have not include d the concept

30 In Austin , the State introduced evidence of a deliberate shooting, but the evidence for the defense tended to show that a group of friends was engaging in horseplay and that the victim was fatally shot while playfully attempting to take a firearm aw ay from the appellant. T h e Court reversed the appellant’s murder conviction based on the trial court’s erroneous charge on murder and unlawful manner involuntary manslaughter, concluding that if the jury believed the appellant’s evidence, he “was either no t guilty of any offense, or, at most, guilty of the lowest grade of manslaughter [that is, unlawful manner involuntary manslaughter]. If the testimony in behalf of the State was true, the accused was guilty of willful and deliberate murder.” 110 Ga. at 750

. 31 Moreover, th ese conclusion s in Geele w ere at best dicta, since this Court went on to hold that the indictment failed to allege any criminal offense , including unlawful manner involuntary manslaughter, and reversed the overruling of the appellants ’ demu rrers. See 203 Ga. at 376

- 377.34 of recklessness in their analysis of unlawful manner involuntary manslaughter. For example, in Drake v. State , 221 Ga. 347 (144 SE2d 519) (1965), the appellant shot and killed the victim in the woods of n orth Georgia . The appellant told the investigating officers that he was deer hunting but shot at what he thought was a fox in the mist or fog. While the State ’ s evidence was sufficient to support the appellant ’ s conviction of murder, it also could have supported a finding that the appellant killed the victim without any intention of doing so in the commissio n of an unlawful act

– hunting deer out of

season
– or “ while shooting at a fox, a lawful act, without due caution and circumspection, resulting in culpable negligence. ” (Citations omitted.) 221 Ga. at 348 (2). 32 This Court held that the trial court erred i n failing to instruct the jury on both grade s of involuntary manslaughter. See i d

. I n Flannigan v. State , 136 Ga. 132 (70 SE 1107) (1911) , a young

32 As noted above, “culpable neglect,” part of the definition of “misfortune or accident” in Code of 1933 § 26

- 404 , was replaced in 1968 by the term “criminal negligence” in Ga. Code Ann. § 26

- 601, now OCGA § 16

- 2

- 2, see Ga. L. 1968 at p. 1269, but the latter term was not statutorily defined until 2004.35 man was fatally stabbed. The appellant was convicted of murder and appealed the denial of his request for an instruction on unlawful

manner involuntary manslaughter. While t he State offered evidence tending to prove murder, the appell ant ’ s evidence would have allowed the jury to find that he and two friends were playfully wrestling over the appellant ’ s knife whe n the victim was inadvertently stabbed in the leg. This Court concluded that the trial court should have instructed the jury on unlawful manner involuntary manslaughter: If the circumstances attending the commission of a homicide by stabbing or cutting wit h a knife authorize the inference that there was no wrongful act, and no intention to stab or cut, but that the wound was inflicted because the person lawfully in possession of the knife may not have exercised necessary and proper precaution against a prob able serious injury to the person who is engaged in a playful struggle to dispossess him of the knife, the homicide would be involuntary manslaughter. The accused under such circumstances would not be entirely exonerated from the consequences of his uninte ntional act, where he fails to observe proper precaution against the infliction of serious injury, or where the injury would not have been inflicted but for his negligence. Id. at 133. And i n Burton v. State , 92 Ga. 449 (17 SE 99) (1893), the36 concept of recklessness was specifically excluded: where both the evidence and the prisoner ’ s statement indicate that the shooting which produced the homicide may have been accidental, and that the fatal result may have been due to handling the pistol, not recklessly , but without the observance of proper caution and circumspection, the offence committed, if any, was not necessarily murder, but may have been involuntary manslaughter in the commission of a lawful act

. (Emphasis supplied.) Id. at 449. A s noted in those decisions , unlawful manner involuntary manslaughter g i ve s the finder of fact the option to find a level of culpability between complete exoneration by reason of misfortune or accident and involuntary manslaughter in the commission of an unlawful act. In d efining the upper limit of that lowe r level of culpability for purposes of unlawful manner involuntary manslaughter , the term

“ reckless ” has been s omewhat elastic and has had different meanings in different contexts. 33 In Georgia, it has been used in the

33 The ordinary dictionary definition of “reckless” is expansive: “1a: lacking in caution: deliberately courting danger: foolhardy, rash . . . b: careless, neglectful, thoughtless . . . 2a: marked by a lack of caution: heedless, rash . . . b: marked by a lack of foresight or consideration: improvident, negligent . . . c: irresponsible, wild.” Webster’s Third New International Dictionary 189637 an alysis of intent for purposes of malice murder, 34 the statutory definition of “ criminal negligence , ” and as part of the definition of

“ gross negligence ” in the civil context. 35 But, somewhat curiously, the word “ reckless ” itself is not included in the statutory definition of the offense denominated as “ reckless conduct , ” but instead appears in the definition of “ criminal negligence. ” We accordingly must look at the specific wording of the statutes to differentiate unlawful manner involuntary mansl aughter from the misdemeanor offense of “ reckless conduct. ” Under OCGA § 16

- 5

- 60 (b) , to commit th e offense of “ reckless conduct, ” a person must

“ consciously disregard [] a substantial and unjustifiable risk that his

(1 976). 34 See Downey v. State , 298 Ga. 568, 569

- 570 (1) (783 SE2d 622) (2016) (firing shots “in conscious disregard of the substantial risk of harm to which the shots exposed others” constitutes “recklessness sufficient to imply malice” for purposes of mali ce murder). 35 See McKinney v. Burke , 108 Ga. App. 501, 507 (4) (133 SE2d 383) ( 1963 ) (“[A] n inadvertent act accompanied by recklessness is said to be something more than ordinary negligence, and to amount at the least to gross negligence .” (Citation omitte d.)). See also Wheat v. State , 171 Ga. App. 583, 584 (2) (320 SE2d 808) (1984) (second degree vehicular homicide by violation of State Department of Transportation rules for oversize loads; indictment “based on appellant’s gross negligence by operating an oversized vehicle without providing a front escort vehicle for the mobile home, in reckless and careless disregard for the safety of the traveling public”).38 act or omission will cause harm or endan ger the safety of [another]
person , ” in “ gross deviation ” from the standard of care which a reasonable person would exercise in the situation . On the other hand, OCGA § 16

- 2

- 1 defines “ criminal negligence ” as “ an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might be injured thereby

. ” The distinction between the two is found in the statutory requirement s in OCGA § 16

- 5

- 60 (b) that the person “ consciously disregard [] a substantial and unjustifi able risk ” that is a “ gross deviation ” from a reasonable standard of care. See Henderson v. Hames , 287 Ga. 534,
538

- 53 9 (3) (697 SE2d 798) (2010) (construing virtually identical language in OCGA § 16

- 11

- 108, misuse of a firearm while hunting,

as prescribin g the mens rea of the offense , and hol ding Hames ’ convictions void for failure of the indictment to allege that the defendant “ consciously disregard[ed] a substantial and unjustifiable risk that his act or omission will cause harm to or endanger the safety of another person ” although the indictment did allege a gross deviation from the standard of care )

.39 The C ourt of Appeals has also applied this analysis in cases involving a shooting death

. In Nutt v. State , 159 Ga. App. 46 (282 SE2d 696) (1981) , the appellant contended that he was examining a pistol that the victim was offering for sale when he cocked it and then attempted to lower the hammer , and the pistol discharged. T he appellant claimed an accidental shooting but was convicted of unlawful ac t involuntary manslaughter, and enumerated as error the trial court ’ s refusal to charge on unlawful manner involuntary manslaughter. T he Court of Appeals in its analysis contrast ed criminal ( formerly “ culpable ” ) negligence with the statutory offense of rec kless conduct: Our view of the evidence is that the victim ’ s death resulted from (1) accidental discharge of the pistol, if appellant ’ s testimony were to be believed, or (2) in the commission of an unlawful act, either pointing the pistol at the victim (Co de Ann. § 26

- 2908) [now OCGA § 16

- 11

- 102] or while consciously disregarding a substantial and unjustifiable risk (Code Ann. § 26

- 2910) [now OCGA § 16

- 5

- 60 (b)] , or (3) handling the pistol, a lawful act, without due caution and circumspection resulting in c ulpable negligence.40 Id . at 47 (1)

. 36 The Court of Appeals reversed the appellant ’ s conviction due to the trial court ’ s failure to instruct the jury on unlawful manner involuntary manslaughter under the last alternative

. See i d. ; see also Chambers v. State , 205 Ga. App. 16 , 19 (421 SE2d 88) (1992) ( criminal negligence may be distinguished from the statutory offense of reckless conduct because the latter requires that the appellant act w hile consciously disregarding “ a substantial and unjustifiable risk ” of h arm in “ gross deviation from the standard of care which a reasonable person would exercise in the situation ” )

. 37

36 Because one judge on the panel concurred in the judgment only, Nutt is “physical precedent only .” See Court of Appeals Rule 33.2 (a) (2). However, the reasoning of Nutt was relied upon by the Court of Appeals in Chambers v. State , 205 Ga. App. 16, 19 (421 SE2d 88) (1992) , in which all members of the panel concurred. Moreover, while the Court of Appe als in Nutt omitted the second part of the mens rea required for statutory “reckless conduct” (that the disregard was a gross deviation from a reasonable standard of care), Chambers correctly states the language of the Code section. 37 In Chambers , as in N utt , the appellant contended that he attempted to lower the hammer on a loaded and cocked revolver to render the gun safe, but the gun accidentally discharged. See 205 Ga. App. at 17. The Court of Appeals rejected the appellant’s contention that he was ent itled to a charge on unlawful act involuntary manslaughter based upon statutory reckless conduct, because “appellant’s statements indicate that he acted consciously to avoid the substantial risk of harm to himself” and the victim, “but that the manner in which he handled the revolver he received from [the victim] was without due41 This distinction explains those decisions which on first glance appear to conflate criminal negligence with statutory “ reckless conduct, ” such as S tate v. S pringer , 297 Ga. 376 (774 SE2d 106) (2015), in which this Court stated: “ Reckless conduct, in contrast [to aggravated assault], is an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily

s afety of another. ” (Citations and punctuation omitted.) Id. at 379 (1). The issue in Springer , however, was not the necessary elements of statutory “ reckless conduct , ” but whether convictions for aggravated assault and reckless conduct arising out of a shootout in a public parking lot were mutually exclusive; this Court concluded that they were not. See i d. at 382 (1). 38 Similarly, in Dunagan v. State , 269 Ga. 590 (502 SE2d 726)

caution and circumspection, resulting in culpable negligence.” (Emphasis in original; citation and punctuation omitted.) 205 Ga. App. at 19. The court further concluded that the appellant would have been entitled to a charge on unlawful manner involuntary manslaughter under OCGA § 16

- 5

- 3 (b), but that he expressly disavowed requesting that instruction, and the failure to give it was not harmful as a matter of law. See 205 Ga. App. at 20; see also OCGA § 5

- 5

- 24 (c). 38 Elsewhere in the opinion, Springer noted all the necessary elements of the statutory offense of reckless conduct. See 297 Ga. at 383 (3).42 (1998) , the Court did not address the elements of the statutory offense of reckless conduct in concluding that “ criminal intent and criminal negligence are not interchangeable in those instances where the mental culpability of the actor is the essenti al element that distinguishes two separate crimes, ” such as the offense of aggravated assault . Id. at 592 (2) (a). Dunagan relie d in part upon Lindsey v. State , 262 Ga. 665 (424 SE2d 616) (1993) , in which the Court observed that “ [r]e ckless conduct is an a ct of criminal negligence, rather than an intentional act, ” (citation omitted) , id. at 666 (2) (b) , but in the context of determining that the appellant was not entitled to instructions on accident or involuntary manslaughter when he admitted that he delib erately fired his gun at the victims ’ car and asserted the defense of justification by self

- defense. 39 As Hames , 287 Ga. at 538 (3), clearly holds in interpreting the almost identical language of OCGA § 16

- 11

- 108 (a), “ conscious ly

39 This is consistent with our decisions noting that a defendant who asserts justification by self

- defense is not entitled to an additional instruction on involuntary manslaughter on the theory that he used excessive force in defending himself. See footnot e 47 below.43 disregard ing a substantial and unjustifiable risk ” and “ gross deviation ” from a reasonable standard of care are requirements of the reckless conduct statute a nd together constitute the mens rea
necessary to establish th at crime , and our decisions in Springer , Dunagan , and Lindsey d o not contradict that

. Accordingly, we conclude that the General Assembly , in enacting the reckless conduct statute while retaining both grades of involuntary manslaughter, meant to preserve a distinction between criminal negligence as the mens rea element of the offense of unlawful manner involuntary manslaughter and the statutory offense of “ reckless conduct , ” and that it reaffirmed that decision in 2004 by providing a statutory definition of “ cr iminal negligence. ” ( e ) What constitutes a “ lawf ul a ct ” under OCGA § 16

- 5

- 3 (b).

“ 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. ” OCGA § 16

- 2

- 1 (a). Conversely, a lawful act is something that is not a crime within the meaning of the laws of this
state. Whether a defendant is entitled to a jury instruction on a44 lawful act committed in an unlawful manner under OCGA § 16

- 5

- 3 (b) depends upon the evidence presented at trial with respect to the defendant ’ s actions . If the evidence at trial shows without dispute that the f atal act w as unlawful , the defendant is not entitled to such an instruction

. And if the evidence shows without dispute that the fatal act constituted no crime at all ( due to, for example, accident or self

- defense), the defendant is likewise not entitled to an instruction

on unlawful manner involuntary manslaughter. But if the evidence is in conflict as to whether the fatal act was unlawful or merely rose to the level of criminal negligence, the defendant is entitled, at least when he so reque sts, to have the jury instructed on the commission of a l aw ful act i n an unlawful manner under OCGA § 16

- 5

- 3 (b)

. A review of selected cases on involuntary manslaughter provide s some guid ance for dete rmin ing whether the re is slight evidence of the commission of a lawful act in an unlawful manner to support an instruction on OCGA § 16

- 5

- 3 (b). For example, if the uncontradicted evidence shows that the defendant was not in lawful possession of the weapon that caused the victim ’ s death at the time45 the fatal injury was inflicted , no instruction on unlawful manner involuntary manslaughter is required

. See Austin , 110 Ga. at 750 ( “ the particular grade ” of involuntary manslaughter involved in that

case
– that is, unlawful act or unlawful manner

– “ would depend upon whether it was lawful or unlawful for the slayer to be in possession of a deadly weapon at th e time and place of the killing ” ) ; Flannigan , 136 Ga. at 133 (1) (lawful act for purpose of unlawful manner involuntary manslaughter statute requires, at a minimum, that “ the person [be] lawfully in possession of ” the fatal weapon )

. 40 See also Snell v. State , 306 Ga. App. 651 , 654 (3) (703 SE2d 93) (2010) (using reasoning consistent with this Court ’ s anal ysis in Austin and Flannigan to reject appellant ’ s contention that he was entitled to an instruction on unlawful manner involuntary

40 In Flanigan , the appellant’s employer testified that the knife used to inflict the fatal injury belonged to the employer and was kept at his place of business, but that the appellant was “a trusted servant and occasionally carried the knife o ff with him.” 136 Ga. at 134. An instruction on unlawful manner involuntary manslaughter was required because some evidence at trial suggested that the appellant was merely engaging in “prankish sport” by wrestling with the victim over the knife, without b eing “sufficiently circumspect in guarding against the probable consequences of playing with a dangerous weapon.” Id.46 manslaughter , because even under his own version of the events, Snell conceded that his possession of a concealed weapon in the victim ’ s home at the time of the fatal shooting was a violation of the version of OCGA § 16

- 11

- 126 then in effect )

. 41 Another question in determining whether an instruction on unlawful manner involuntary manslaug hter is warranted is whether there is slight evidence that the defendant ’ s handling of the
weapon at the time the fatal injury to the victim was inflicted amounted to at least (and not necessarily more than) criminal negligence , in light of all the surroun ding circumstances

. Such evidence may include a showing of a deliberate but l awful a ct done in an unlawful (criminally negligent) manner, such as intentionally discharging a firearm with the professed intent of s hoot ing a fox but without verifying his target in poor visibility , as in Drake , 221 Ga.

41 Snell was indicted for murder, felony murder, and aggravated assault, but convicted of unlawful act involuntary manslaughter as a less er included offense of felony murder. See Snell , 306 Ga. App. at 651. The State’s witnesses testified that Snell deliberately shot the victim at point

- blank range, while Snell contended that the shooting occurred when he accidentally dropped his pistol fro m his coat and attempted to grab it, causing it to discharge. See id. at 652 (1).47 at 348 (2) , or a box located too close to a person , as in Teasley v State , 228 Ga. 107 (184 SE2d 179) (1971) , with fatal consequences not intended by the shooter

. Such evidence also may include a showing that the defendant had no intention of discharging a firearm, but an inadvertent and fatal discharge occurred while the defendant was lawfully handling the firearm but in an unlawful , criminally negligent manner , as in Austin , 110 Ga . at 750, or Maloof v. State , 139 Ga. App. 787 (229 SE2d 560) (1976). Thus, determining whether there is slight evidence of the commission of a “ lawful act ” in an “ unlawful manner ” within the meaning of OCGA § 16

- 5

- 3 (b) , to support a jury instruction on unlawful manner involuntary manslaughter, requires consideration of all the evidence of the defendant ’ s intent based on , among other things , the circumstances surrounding the fatal act in question

. T he cases make clear that , in consi dering whether a n instruction on OCGA § 16

- 5

- 3 (b) is appropriate , the trial court must consider only whether slight evidence supports the charge, and the ultimate determination of wh ether the defendant acted lawfully but with48 criminal negligence is for th e jury under proper instruction

. (f) Application in firearm cases. As the foregoing discussion demonstrates, here the trial court erred when it ruled a s a matter of law that a jury should never be instructed on unlawful manner involuntary manslaughter in a shooting death case. I n its order denying McIver ’ s motion for new trial, the trial court cited Manzano in support of its refusal to give the requested charge. While the trial court did not quo te the language it relied upon, t hat decision states broadly th at

“ [a] defendant who handles a gun in such a way as to accidentally cause the death of another human being, albeit without any intention to do so, has necessarily committed the misdemeanor of reckless conduct

. . . . [Cit.] ” (Emphasis supplied.) Cook v. S tate , 249 Ga. 709, 712 (4) (292 SE2d 844) (1982). See also Reed v. State , 279 Ga. 81, 85 (7) (610 SE2d 35) (2005). Manzano , 282 Ga. at 559 (3) (a)

. The same language is relied upon in Cook and Reed , and appears to have originated in an expansive interpretation of language used in Raines v. State , 247 Ga. 504 , 507 (3) (277 SE2d 47) (1981)

. But in each of those cases, the uncontradicted evidence as outlined in the opinion showed that the49 appellant committ ed a n unlawful act that caus ed the death of t he victim, thus taking his conduct outside the scope of unlawful manner involuntary manslaughter. In Manzano , unlawful manner involuntary manslaughter was

n ot even addressed

. Manzano testified that he intentionally pressed his pistol to his wife ’ s head and pulled the trigger, but that he and his wife were only engaging in “ horseplay ” because both m istakenly believ ed that the pistol was unloaded

. See 282 Ga. at 557. Convicted of felony murder, Manzano appealed, asserting that the trial court should have g iven his requested instructions on unlawful act involuntary manslaughte r with the alternative predicate misdemeanor offenses of pointing a pistol at another and reckless conduct. This Court agreed and reversed with respect to the predicate act of pointing a pistol at another, s ee id. at 558

- 559 (2) , also noting that the trial court erred in refusing to instruct on unlawful act involuntary manslaughter with reckless conduct as the predicate offense

. See i d. at 559 (3) (a)

. Similarly, the cases cited in Manza no involved conduct in50 handling a firearm amounting at least to the statutory offense of reckless conduct

. For example, i n Reed , the appellant shot his girlfriend in the head, killing her, while he was driving a car and she was riding in the front passenger seat. Reed ’ s defense at trial was accident , and the jury was charged on that issue . Convicted of murder, Reed appealed, asserting that he was entitled to a charge

on unlawful manner involuntary manslaughter. Howev er, the evidence as recited in the opinion showed that “ Reed ’ s admitted conduct was not a lawful act. ” 279 Ga. at 86 (7). He intentionally produced and displayed a loaded firearm with his finger on the trigger in close proximity to the victim , and his atte ntion was diverted from the location of the muzzle because he was “ watching the road trying to drive

. ” Id. Moreover, t he State presented uncontradicted testimony that the gun ’ s trigger was pulled twice. See id. at 82

. Reed , like Manzano , quotes the langua ge in Cook that “ a defendant who handles a gun in such a way as to accidentally cause the death of another human being . . . has necessarily committed the51 misdemeanor of reckless conduct, ” 249 Ga. at 712 (4). B ut in Cook ,

even according to Cook ’ s testimony at trial, he retrieved a pistol during an argument with the victim, the mother of his child ; he turned towards her ; and “ the gun accidentally went off, ” striking t he victim in the forehead

. 249 Ga. at 710. The opinion notes no contradiction to the medical examiner ’ s testimony that “ the gun was no more than several inches away from the victim ’ s head when the fatal shot was fired. ” Id. Cook ’ s deliberate ly bringing a loaded gun into close proximity to the victim ’ s head during an argument constituted conscious disregard of a s ubstantial and unjustifiable risk that he would cause harm or endanger the safety of the victim, and the disregard constituted a gross deviation from a reasonable standard of care, e stablishing the statutory offense of reckless conduct , an d thus was not a lawful act. See i d. at 712 (4). See also McDonald v. State , 224 Ga. App. 411, 413 (481 SE2d 1) (1997) ( the defendant ’ s deliberate ly grabbing his wife by the arm during an argument and firing a revolver next to her head wa s sufficient to support his conviction for reckless con duct under OCGA § 16

- 5

- 6052 (b)).
In Cook , this Court cited two cases in support of its statement: Raines and Ranger v. State , 249 Ga. 315 (4) (290 SE2d 63) (1982). 42 In Raine s , t he appellant was convicte d of murder after he shot his wife three times with a revolver during a domestic quarrel, killing her. 43 Raines , a double amputee paralyzed from the waist down, maintained that the revolver inadvertently discharged when he lost his balance because he was no t wearing his prosthetic device. See 247 Ga. at 505. 44 T h e Court rejected Raines ’ contention that the trial court should have instructed the jury on both unlawful act and

42 In Ranger , the appellant was convicted of murder of his pregnant girlfriend and her child, wh o was born alive but died shortly afterwards. The defense called no witnesses, and there was no evidence of how the shooting occurred. Ranger asserted as error the trial court’s refusal to charge on unlawful manner involuntary manslaughter, and in its brief treatment of this enumeration of error, this Court simply observed, “There i s no evidence here that Helena Carter’s death, or her child’s , was caused by commission of a lawful act in an unlawful manner,” and cited Raines. Ranger , 249 Ga. at 320 (4). 43 The Raines court was sharply divided, with Chief Justice Jordan and Justices Hil l and Marshall dissenting as to the reversal on the voluntary manslaughter charge in Division 1, while Justices Undercofler and Smith dissented as to Divisions 2 and 3. The opinion was issued per curiam

. 44 Raines’ doctor, asked what Raines’ balance would b e like without the prosthe sis , testified, “Well, categorically it would be awkward to say the least.” 247 Ga. at 504 n.1.53 unlawful manner involuntary manslaughter. See id. at 507 (3). 45 With respect to unlawful act involuntary manslaughter, Raines claime d that he did not intend to shoot his wife and that the jury could have found that he did so while committing the misdemeanor of pointing a pistol at another. Th e Court rejected Raines ’ contention with re spect to unlawful act involuntary manslaughter, concluding that the evidence showed that , even if Raines ’ wife had not died, Raines committed aggravated battery, a felony, by shooting and wounding his wife three times, id. at 507 (3) , and pointing out that , in the case relied upon by Raines, only a single shot was fired. See id. at 507 n.4 (2). 46 With respect to unlawful manner involuntary manslaughter , Raines contended that his “ lawful act ” occurred earlier in the

45 T h e Court reversed , however, based upon the trial court ’ s failure to instruct the jury on voluntary manslaughter by reason of “ serio us provocation ” under former Ga. Code An n. § 26

- 1102, now OCGA § 16

- 5

- 2, due to the victim’s taunting of Raines with her adultery and his disability. See 247 Ga. at 506 (1). But because of the possibility of the issue arising on retrial, we also considered Raines’ contentions with regard to instructions on both grades of involuntary manslaughter. 46 Despite the physical evidence of his wife’s wounds and three discharged shells found at the scene, Raines maintained that the gun only “fired twice.” 247 Ga. at 505.54 evening, when , he testified , he retrieved h is revolver from under a mattress and “ walked on his hands ” to the back door because he

“ thought he heard a noise outside. ” Id. at 504. Thereafter, he found a letter from his wife ’ s boyfriend in her purse, returned to the bedroom and confronted her about the letter , and she began to taunt him with his disability and her infidelities. It was during the course of this subsequent quarrel , he claimed , that he lost his balance while attempting to lie down on the bed, fell down, and the gun “ went off. ” I d. at 505. The Court concluded that the evidence, including Raines ’

own testimony and argument , showed that he was not engaged in a lawful act at the time of the shooting

. Holding a loaded gun while involved in an argument and attempting to move around , kn owing that one is both paralyzed from the waist down and dependent upon a prosthe sis for balance, can be fairly characterized as a conscious disregard of a substantial and unjustifiable risk of harm to another that constitut es a gross deviation from a reas onable standard of

care , thereby fulfilling all the elements of the statutory offense of reckless conduct, then Ga. Code Ann. § 26

- 2910. See id. at 507 (3)55 and n.5. The State also relies upon Ward v. State , 252 Ga. 85 (311 SE2d 449) (1984). There, the vict im was told to come to Ward ’ s trailer regarding a debt he owed to Ward. Ward testified that the victim offered drugs in partial payment of the debt, but the owner of those drugs , Whitlock, objected and put his hand in his back pocket. See id. at 87. Ward r etrieved a ri fle, cocked it, and told Whitlock to take his hand out of his pocket and leave; at that point, the victim

“ started up from the bed, ” Ward “ jumped backwards ” and hit a piece of furniture, and “ the gun went off. ” Id. The jury was instructed on accident and justification by self

- defense. Th e Court rejected Ward ’ s contention that the trial court erred in refusing his request to charge

on unlawful manner involuntary manslaughter, noting that Ward ’ s conduct in handlin g the rifle “ consciously disregard [ed] a substantial and unjustifiable risk that the act [would] cause harm or endanger the safety of another ” and constituted the offense of reckless conduct, citing OCGA § 16

- 5

- 60 ( now OCGA § 16

- 5

- 60 (b) )56 and Raines

. Ward , 252 Ga. at 88 (a). 47 A close reading of these decisions shows that the expansive language used in Cook , Reed , and Manzano , derived from but not quoting the decision in Raines , fail s to take into account the context in which it originated and was applied. In Cook , Reed , and Manzano , the undisputed evidence established that the appellant acted with conscious disregard of a substantial and unjustifiable risk of harm , constituting a gross deviation from a reasonable standard of care

– the e lements of statutory reckless conduct under OCGA § 16

- 5

- 60

47 In Ward , we fail ed to mention the other component of the mens rea required for statutory reckless conduct, namely, gross deviation from a reasonable standard of care. Ward also relies upon Crawford v. State , 245 Ga. 89 (263 SE2d 131) (1980), and Saylors v. State , 251 Ga. 735 (309 SE2d 796) (198 3 ). The latter two decisions are inapplicable to the case before us, because they hold that a defendant asserting justification by self

- defense is not entitled to an additional instruction on involuntary man slaughter under either subsection of OCGA § 16

- 5

- 3 on the theory that the defendant used excessive force in self

- defense

. See Crawford , 245 Ga. at 92 (3); Saylors , 251 Ga. at 737 (3); see also Harris v. State , 272 Ga. 455, 456

- 457 (3) (532 SE2d 76) (2000) (“Because appellant conceded that he shot at the victims intentionally, albeit in self

- defense, a charge on the lesser offense of involuntary manslaughter, which requires a lack of intent, was not warranted.” (Citations and footnote omitted.)). In Raines , the Court noted that Crawford is not controlling when a defendant claims accident and not self

- defense. Raines , 247 Ga. at 506 (2). See also Chambers , 205 Ga. App. at 19 (noting that Willis v. State , 258 Ga. 477, 477

- 478 (1) (371 SE2d 376) (1988) , citing S aylors and Crawford , “does not hold that OCGA § 16

- 5

- 3 (b) is inapplicable any time the victim is killed by the shooting of a gun”).57 (b). An unlawful manner involuntary manslaughter charge was not requested in Manzano , and in Cook and Reed this Court concluded that the trial court correctly refused a charge on OCGA § 16

- 5

- 3 (b) because slight evidence did not support such a charge. But n one of these decisions supports the proposition that any handling of a firearm resulting in an unintended death always constitutes at least the statutory offense of reckless co nduct and therefore forecloses an instruction on unlawful manner involuntary manslaughter. We accordingly disapprove the statement in Cook , Reed , and Manzano t hat “ [a] defendant who handles a gun in such a way as to accidentally cause the death of another human being, albeit without any intention to do so, has necessarily committed the misdemeanor of reckless conduct , ” to the extent it suggests that an instruction on unlawful manner involuntary manslaughter is never appropriate in a case involving a fatal shooting. 48 Under the specific circumstances outlined in those decisions , a jury instruction on unlawful manner

48 We disapprove only this statement, and express no opinion regarding whether these cases were correctly decided.58 involuntary manslaughter wa s not appropriate . B ut when there is slight evidence, even if in dispute, that the defendant caused the death of another person in the com mission of a lawful act but in a merely criminally negligent manner, a charge on unlawful manner involuntary manslaughter is supported

. The Court of Appeals reached a similar conclusion in Allison v. State , 288 Ga. App. 482, 484

- 485 (1) (654 SE2d 628) (200 7), an appeal of a conviction for reckless conduct under OCGA § 16

- 5

- 60 (b). The appellant went to a friend ’ s apartment to retrieve a bag of clothing. He had a pistol in the bag, and was checking the gun, which was pointed down, when it went off. T he bulle t traveled through a wall into an adjacent apartment , where it ricocheted off the floor and a metal door before striking a child in the head, causing serious injury. There was no evidence that the appellant knew the gun was loaded, or that he intentionally fired it. See id. at 482 (1). The Court of Appeals reversed the conviction, concluding that the evidence was insufficient because it did not establish that the appellant handled the firearm in a manner creating “ a ‘ substantial and unjustifiable59 risk ’ that he would endanger the safety of another person. ” Id. at 483 ( quoting OCGA § 16

- 5

- 60 (b) ) . In so deciding, the Court of Appeals concluded that the language in Manzano , Reed , and Cook was not intended to “ transform the crime of reckless conduc t into a strict liability crime ” whenever a firearm is involved, and that “ [t]he words

‘ in such a way ’ should not be interpreted to mean any and all types of gun handling; instead, they should be interpreted to track ” the

mens rea language in OCGA § 16

- 5

- 60 (b). Al lison , 288 Ga. App. at 484

- 485

. We agree that such a construction is necessary in order to avoid rendering OCGA § 16

- 5

- 3 (b) meaningless in ever y case involving a shooting death

. This interpretation of Raines and its progeny is also consistent with the pri nciple that a charge on involuntary manslaughter

– including unlawful act involuntary manslaughter under OCGA § 16

- 5

- 3 (a)

– is not authorized when the undisputed evidence demonstrates that the defendant acted intentionally in harming the victim . See, e.g., Cheeves v. State , 306 Ga. 446, 447

- 448 (2) (831 SE2d 829) (2019) ( instruction on unlawful act involuntary manslaughter60 not required when appellant pointed gun directly at victim and shot victim multiple times); Harris v. State , 257 Ga. 385 , 38 6 ( 1 ) (359 SE2d 675) (1987) ( trial court properly refused to charge on unlawful
act involuntary manslaughter when a ppellant repeatedly stabbed victim and threatened him ) ; Conner v. State , 251 Ga. 113, 116 (2) (c) (303 SE2d 266) (1983) (appellant not entitl ed to instruction on unlawful act involuntary manslaughter when victim was beaten severely and “ the number of wounds inflicted leaves no doubt on the question of intent or voluntariness ” ( c itation and punctuation omitted)). 49 Once these decisions are remove d from consideration, however,

49 We also disapprove the bench note accompanying the Georgia pattern jury instruction on involuntary manslaughter to the extent it suggests that “‘a lawful act committed in an unlawful manner’ is often going to be equivalent to reckless conduct (see [OCGA] § 16

- 5

- 60 (b)) , a misdemeanor which would support the charge of felony involuntary manslaughter ,” citing Kellam v. State , 298 Ga. 520, 523 (2) (783 SE2d 117) (2016) , and Harmon v. State , 259 Ga. 846, 848 (4) (b) (388 SE2d 689) (1990). Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 2.10.45 (4th ed. 2007 , rev. 2021 ) (Involuntary Manslaughter (Misdemeanor)). In the two cases cited by the bench note, this Court held that the severe injuries to the victims c ould not have resulted from any lawful act . And, as discussed above, statutory reckless conduct is an “unlawful act” and thus never equivalent to a “lawful act committed in an unlawful manner.”61 a group of cases remains in which the evidence, even if slight, would allow a jury to find unlawful manner involuntary manslaughter because the act resulting in the victim ’ s death was not intentional

or unlawful in itself, and the defendant under the circumstances acted only in a criminally negligent manner rather than in violation of all the elements of the reckless conduct statute . And in such cases, an instruction on OCGA § 16

- 5

- 3 (b) is appropriate. For example, in T easley , during a chaotic Christmas Eve encounter between Teasley , his wife, his girlfriend, and the police, the girlfriend was struck and killed by a bullet fired from Teasley ’ s pistol. See 228 Ga. at 109. At some point , Teasley shot at the lock of a metal box , located a few feet away from where the victim was lying on the floor , in an apparent attempt to access its contents

. See id. A pathologist ’ s testimony did not exclude the possibility that the fatal bullet ricocheted from the metal box, although he co nsidered it unlikely. See id. Teasley was convicted of malice murder and appealed, complaining of error in the refusal of several of his requests to62 charge. We reversed, concluding that the trial court erred in failing to give several jury instructions, i ncluding on unlawful manner involuntary manslaughter, observing that while the evidence was sufficient to support the jury ’ s verdict of murder, it was also sufficient to raise a jury issue as to unlawful manner involuntary manslaughter: From the circumstances of the homicide as referred to above, the evidence was ample to raise an issue for the jury ’ s consideration as to the defense of [involuntary] manslaughter. It was sufficient to authorize the jury to consider whether the victim ’ s death was a result of the appellant ’ s lawfully firing the pistol in an unlawful manner, in close proximity to the victim so as to cause the bullet to richochet [sic] and strike her. Id. at 110

- 111 (4). 50 The evidence also appears to have been sufficient for the jury t o have found that the appellant ’ s act of intentionally firing a loaded pistol at a box only a few feet away from the victim amounted to statutory reckless conduct and thus the offense of unlawful act involuntary manslaughter under OCGA § 16

- 5

- 3 (a),

50 This Court also concluded that the evidence authorized an instruction on misfortune or accident under former Ga. Code Ann. § 26

- 602, now OCGA § 16

- 2

- 2, see 228 Ga. at 110 (3), as well as two requested instructions with respect to the defense of insanity. See id. at 111

- 112 (5).63 but it does not appear from the opinion that Teasley requested an instruction on unlawful act involuntary manslaughter o r enumerated a s error the refusal to give such an instruction

. Similarly, in Maloof , the appellant was indicted for murder but convicted of un lawful act involuntary manslaughter in the shooting death of his wife. See 139 Ga. App. at 787 (syllabus by the C ourt). At trial, he testified that, during a domestic quarrel, he was attempting to lower the hammer of a handgun after he noticed it was cocke d. While he did so, h e pointed the gun upwards, “ towards the crease in the wall and ceiling, ” and while he was not looking at his wife she “ tried to g et past him ” and the handgun discharged, killing her. Relying on Teasley , t he Court of Appeals reversed, conclud ing that the trial court erred in failing to instruct the jury on unlawful manner involuntary manslaughter because the evidence authorized the jury to consider whether the appellant was lawfully using the pistol, but “ in an unlawful manner, in close proximity to64 the victim

. ” (Citation and punctuation omitted.) Id. at 788. 51 The trial court therefore erred in relying upon Manzano to conclude that unlawful manner involuntary manslaughter is never applicable in a shooting death case and in refusing McIv er ’ s requested instruction on unlawful manner involuntary manslaughter on that basis

. ( g ) Evidence supporting the requested charge. We must next consider whether slight evidence supported McIver ’ s request to instruct the jury on unlawful manner involuntary manslaughter. To authorize a requested jury instruction, there need only be slight evidence to support the theory of the charge, and the necessary evidence may be presented by the State, the defendant, or both. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law. (Citations and punctuation omitted.) M erritt v. State , 311 Ga. 875, 889 (7) ( 860 SE2d 455 ) ( 2021 ). “ The evidence necessary to justify a

51 On retrial, the appellant was convicted of unlawful manner inv oluntary manslaughter, and that conviction was affirmed by the Court of Appeals in Maloof v. State , 145 Ga. App. 408 (243 SE2d 634) (1978)

.65 jury charge need only be enough to enable the trier of fact to carry on a legitimate process of reasoning. ” (Citations and punctuation omitted.) Calmer v. State , 309 Ga. 368, 370 (2) (846 SE2d 40) (2020). And “ [i]n determining wheth er a trial court erred in giving jury instructions, we read and consider the instructions as a whole. ” (Citation omitted.) Stafford v. State , 312 Ga. 811, 820 (4) (865 SE2d 116) (2021). Here, the evidence presented at trial provide d some support for the r equested instruction . Evidence was presented that , at the time of the shooting, McIver was asleep in the back seat of a moving car with the loaded revolver on his lap in a plastic grocery bag , and that he was startled awake by the doors locking, someone sp eaking , or the vehicle going over a bump in the road. In addition, expert testimony was presented that at the time the revolver discharge d, McIver was not holding it upright in a raised position, but rather that the gun was lying sideways and resting on his lap

. Some evidence was also presented that McIver suffered from a sleep

related disorder that could produce involuntary movement s when he66 was awaken ed or startled. From this evidence, the jury could have concluded that the revolver was not deliberately or intentionally fired, but rather , as McIver suggests, discharged as a result of his being startled awake , reflexive ly or involuntarily clutch ing at the bag holding the firearm , and inadvertently contacting the trigger. While the jury could have found fr om the evidence that the shooting that killed Diane was an accident under OCGA § 16

- 2

- 2 , t he jury also could have concluded that, while it was n ot unlawful for McIver merely to have a loaded revolver in his lap in the back seat of the vehicle, he was criminally negligent in his manner of handling it by keeping it in his lap unsecured, without a holster and in a plastic bag, in a mov ing vehicle with two other people in the front seats , and by allowing himself to doze off while the gun was so situated. 52 This is at least

52 The State asserted at oral argument that not even slight evidence was presented that the gun was handled in an unl awful manner. However, as McIver points out, the State argued at trial that McIver was unsafe in handling the gun by not giving the gun back to his wife or placing it on the floor or on the seat beside him, by failing to return the gun to its available hol ster, and by failing to exercise “muzzle awareness” by keeping the gun loose in a plastic bag, thus placing Diane “in that kind of danger.”67 slight evidence that the fatal discharge of the firearm was a lawful
act but performed in a criminally negligent manner , but not necessarily statutory reckless conduct

– an act performed in conscious disregard of a substantial and unjustif iable risk of harm to another amounting to a gross deviation from a reasonable standard of care

. 53 We need not decide whether we believe that McIver ’ s conduct was only criminally negligent in manner , or instead amounted to statutory reckless conduct under OCGA § 16

- 5

- 60 (b)

. [W]e must decide only whether there was slight evidence to support the jury instruction. . . . And if there was slight evidence supporting the instruction

– and there was

– it is irrelevant whether we find that slight evidence persuasive in the face of contrary evidence; that question was reserved exclusively for the jury. Daly v. Berryhill , 308 Ga. 831, 834 (843 SE2d 879) (2020)

. The evidence at trial constituted the slight evidence necessary to support an instruction on unlaw ful manner involuntary manslaughter , and

53 A jury, of course, could also conclude that McIver was guilty of the statutory offense of reckless conduct , and he nce of unlawful act involuntary manslaughter

.68 we therefore conclude that the trial court erred in refusing to give McIver ’ s requested instruction on this point

. ( h ) Determining harmful error

. Having determined that the trial court erred, we next must consider whether the error was harmful so as to require reversal of McIver ’ s convictions

. “ The test for determining whether a nonconstitutional instructional error was harmless is whether it is highly probable that the error did not contribute to the verdict. ” (Cit ations and punctuation omitted). Jones v. State , 310 Ga. 886, 889 (2) ( 855 SE2d 573 ) ( 2021 ). And in determining whether such an error is harmless, we assess the evidence from the viewpoint of reasonable jurors, not in the light most favorable to the verdicts. See Thompson v. State , 302 Ga. 533, 542 (III) (A) (807 SE2d 899) (2017). Here, w e cannot say that the error was harmless , because t he evidence of McIver ’ s guilt of aggravated assault and felony murder was not overwhelming or even strong , and the evidence of criminal intent was disputed and circumstantial

. Indeed , the State ’ s evidence of intent wa s weak, as no witness testified to any disagreement or69 quarrel between McIver and Diane, and many witnesses testified that they were very much in love. The State ’ s evidence largely focused on a possible financial motive for McIver to murder Diane, but a s McIver notes, the evidence connecting that alleged motive to any actions that McIver took to intentionally kill his wife wa s thin

. The State ’ s murder theory

– that McIver intentionally shot his wife in the back in a moving car , with her best friend as a witness , through a thin plastic bag and through the back of a seat that could have diverted the bullet, while aim ing so low as to potentially miss any vital organs

– is supported on ly by some circumstantial evidence and conjecture; to the contrary, the cir cumstances of the shooting suggest a lack of any preparation or planning . Indeed , the only witness to the fatal shooting testified that shortly before asking for his gun, McIver had fallen asleep in the back seat and that he appeared to have fallen asleep again after that , an unlikely action for some one intending to commit a murder. Perhaps aware of the weakness of the State ’ s case, t he prosecutor argued to the jury, without citing any particular70 evidence, that McIver must have planned to murder Diane earl ier, at the ranch, but was prevented from doing so by the presence of Carter , and was so committed to killing Diane that day that he

“ ha[d] to go to maybe a Plan B ” in the vehicle. But, once again, the evidence presented by the State provides little if any support for this theory

. If McIver intended to fatally shoot Diane, why would he do it in the presence of Carter , and why would he do it in midtown Atlanta , within a few miles of several major hospitals, instead of on a rural interstate, far from any medi cal aid ? The prosecutor argued that McIver put the gun in a plastic bag to avoid DNA or gunshot residue, even though Diane was the one who handed him the gun already in the plastic bag , and given the circumstances there could be little doubt that he was the person who discharged the gun. On the other hand, t he State ’ s evidence that McIver gave var ying statements to hospital personnel, the police, and others describing how the incident occurr ed , and that some hospital personnel thought that McIver was not grieving “ appropriately ” lend some support to the State ’ s murder theory, but not much

.71 A s McIver also points out, the refusal of his request to charge the jury on unlawful manner involunta ry manslaughter “ deprived [him] of the benefit of one of [his] defense theories

– maybe the stronger one

– and thus deprived [him] of the chance for the jury to convict [him] of [a] misdemeanor[] rather than felonies. ” Shah v. State , 300 Ga. 14, 22 (2) (b) (793 SE2d 81) (2016) . In Shah , the appellant was found guilty of felony murder and two counts of first

degree cruelty to children in connection with the death of her infant daughter due to dehydration and probable hyperthermia . T he State ’ s medical examine r had concluded that the death was accidental. See id. at 16 (1) (b). The trial court refused the appellant ’ s request to charge the jury on the misdemeanor of statutory reckless conduct as a lesser included offense of the felonies of first

- degree cruelty to children under OCGA § 16

- 5

- 70 (a) and (b). Shah ’ s counsel argued that the appellant ’ s conduct was not intentional, and asserted the theory of accident as a defense, but also conceded in his opening statement that the jury might find that her conduct had been “ reckless. ” I d. at 22. T he trial court refus ed to72 charge the jury on statutory reckless conduct , thereby prevent ing counsel from including this alternative and likely stronger theory in his closing argument

. We note d that Shah ’ s counsel ’s seeking to present two alternative theories was “ not an un reasonable strategy ” under the circumstances of that case, noting that “ criminal defendants often offer dissonant defense theories, particularly with regard to levels of criminal intent when the result of the defendant ’ s actions was undeniably tragic and the jury may be inclined against finding the defendant entirely innocent

. ” Id. at 22 (2) (b). Concluding that the appellant was deprived of an important defense by the trial court ’ s refusal to give the request ed charge, that some evidence supported the lesser included offense, and that the evidence of the greater offense was not overwhelming, we held that the error was harmful and reversed the convictions

. See id. at 23 (2) (b). Here, a s in Shah , McIver ’ s m ain defense theory at the outset was accident

– lack of any criminal mens rea

– which was the only theory set forth in his counsel ’ s opening state ment. In closing,73 McIver again asserted the accident theory , and while his counsel mentioned statutory reckless co nduct as a basis for finding unlawful
act involuntary manslaughter, it was only to argue that the facts did not meet the statutory definition of that felony offense

. 54 But counsel was prevented from arguing the theory of unlawful manner involuntary manslaug hter based on criminal negligence by the trial
court ’ s refusal to give his requested charge on that theory. And this theory was important to McIver, given that his age at the time of trial

– almost 71

– deterred his counsel from suggesting to the jury
any felony outcome

– including unlawful act involuntary manslaughter

– a s he might not live long enough to serve even a ten

year sentence. The jury could have concluded

– as McIver argued

– that the evidence presented here did not meet the statutory definition of reckless conduct as correctly given by the trial court , involving as it does both conscious disregard of a substantial and unjustifiable risk

54 The State, on the other hand, mentioned reckless conduct in closing only to argue that it had proved McIver’s actions were intentional, not reckless.74 of harm to another and a gross deviation from a reasonable standard of care

. But the jury was given no alt erna tive instruction regarding criminal negligence , a mental state more culpable than pure accident and arguably more consistent with the evidence at trial. T his foreclosed the possibility of a finding that McIver was criminally negligent but d id not meet the definition of reckless conduct, which would have enabled the jury to find that McIver was not entirely guiltless , but guilty only of unlawful manner involuntary manslaughter

. The trial court ’ s refusal to give the requested instruction on unlawful manner in voluntary manslaughter deprived McIver of the opportunity to argue a n alternative theory of defense that may have been stronger than those permitted by the trial court, and to offer to the jury an opportunity to convict him of a lesser offense without entirely exonerating him from criminal responsibility for a tragic and deadly event

. Moreover, considering the jury instructions as a whole, see Stafford , 312 Ga. at 820 (4) , the trial court compounded its error in75 omitting a charge on unlawful manner involuntary manslaughter in two ways. First, the court instructed the jury that accident involves

“ no criminally negligent be havior such as reckless conduct

. ” Second, it instruc ted the jury, “ [I]f you don ’ t find beyond a reasonable doubt that his conduct constituted reckless conduct, then you are dealing with an unintentional situation along the lines of accident. ” More than mere omission, these instructions expressly foreclosed any consideration of unlawful manner involuntary manslaughter , even though there was evidence to support a finding of mere criminal negligence

. The effect of th e omission of an instruction on unlawful manner involuntary manslaughter is sugges ted by the ju ry ’ s questions to the trial cour t during its lengthy deliberations, repeatedly expressing

concerns regarding the question of McIver ’ s inten t and ultimately stating after four

- and

- a - half days of deliberation s that it was deadlocked on that very question

. 55 See Davidson v. State , 304 Ga.

55 During its deliberations, the jury sent out numerous que stions to the trial court, beginning with, “If not guilty on 1 through 4 [malice murder, felony76 460, 471 (4) (819 SE2d 452) (2018) ( conclu ding constitutional error

was not harmless , in part because the jury asked for recharge on issues implicate d by error ); Bracewell v. State , 243 Ga. App. 792, 796 (2) (534 SE2d 494) (2 000) ( concluding error in charge was harmful, in part because the jury asked twice for recharges and “ [c]larity in this portion of the charge was critical to an issue of defense ” ( c itation and punctuation omitted)). Indeed, the jury ultimately found McIver not guilty of malice murder. T he State asserts that the error is harmless because the jury rejected the lesser included offense of unlawful act involuntary manslaughter in finding McIver guilty of felony murder based on aggravated assault, which means that the jury found that McIver

murder, aggravated assault, and possession of a firearm during the commission of a felony], can number 5 [influencing a witness] be guilty?” then asking to view the vehicle and to watch the video of McIver’s police interview again. After further deliberations, the jury asked, “How does intent affect the charge of aggravated assault with a deadly weapon?” and, “For an assault to occur, does there need to be intent to cause violent injury or just an action that causes violent injury?” Then, on the fifth day of deliberations, the jury sent out a note to the trial court stating, “We don’t see a path to overcome our differences on the defendant’s intent related to char ges 1, 2, 3, and 5.” Over McIver’s objection, the trial court delivered an Allen charge to the jury, and shortly thereafter the jury reached its verdicts.77 intended to shoot Diane, thereby causing a violent injury, but did not intend to kill her , given that the jury acquitted him of malice murder. Even assuming that is a correct interpretation of what the jury ’ s verdicts signif ied, the jury reached its verdicts without a complete instruction on the grades of culpability between accident and felony murder, thus “ depriv[ing] the jury of the necessary tools to evaluate the charges against [McIver] and to reach a verdict. ” Henry v. State , 307 Ga. 140, 146 (2) (c) ( 834 SE2d 861 ) ( 2019 ). This is particularly true in light of McIver ’ s desire to avoid a felony conviction arising out of statutory reckless conduct : his inability to argue criminal negligence as the basis for a misdemeanor c onviction of unlawful manner involuntary manslaughte r deprived him of the benefit of a strong theory of defense, and certainly the most advantageous theory short of an outright acquittal on the basis of accident. See Shah , 300 Ga. at 22 (2) (b)

. In light o f all t hese circumstances, we cannot say it is highly probable that the trial
court ’ s error in refusing the requested instruction did not contrib ute to the jury ’ s verdict s , and reversal therefore is required.78 We note that, a s a matter of constitutional due process, the evidence presented at trial and summarized above was, when viewed in the light most favorable to the verdicts, legally sufficient to authorize a rational jury to find McIver guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). Therefore, although we reverse McIver ’ s convictions for felony murder based on aggravated assault and possession of a firearm in the commission of a felony based on the instructional error, the State may choose to retry McIver on the counts as to which the jury returned a verdict of guilty as well as the lesser included offense of unlawful act involuntary manslaughter, as to which the jury did not return a verdict . S ee Doyle v. State , 30 7 Ga.
609 , 615 ( 2 ) n. 5 (8 37 SE2d 83 3 ) (20 20 ).
3

. Because we are reversing some of McIver ’ s convictions, we next consider those evidentiary issues that are likely to recur if the79 State elects to retry McIver. 56 All these issues concern evidence admitted at trial that McIver contends was irrelevant, speculative,

or prejudicial. (a) OCGA § 24

- 4

- 401 defines relevant evidence as “ evidence having any tendency to make the existen ce 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. ” Although this relevance standard is a liberal one, it is not meaningless or without boundaries. Any evidence tha t fails to meet this standard will be barred by OCGA § 24

- 4

- 402 ( “ Rule 402 ” ), which provides, without exception, that “ [e]vidence which is not relevant shall not be admissible. ” A trial court ’ s decision whether to admit or exclude evidence is reviewed on appeal for an abuse of discretion. (Citations and punctuation omitted.) Martinez

- Arias v. State , 313 Ga. 276, 285 (3) ( 869 SE2d 501) (2022). Moreover,

56 In addition to the instructional errors addressed in this opinion, McIver enumerated two other clai ms of trial court error , which involve the jury’s deliberations. These claims concern the interruption of deliberations to permit a second inspection of , and experiments with , the vehicle and firearm involved, and the giving of an Allen charge . These claimed errors are unlikely to recur if the State elects to retry McIver, so we do not address them.80 relevant evidence may be excluded under OCGA § 24

- 4

- 403 ( “ Rule 403 ” ) “ if its probative value is substa ntially 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. ” The major function of Rule 403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. (Citations and punctuation omitted.) Lo fton v. State , 309 Ga. 349,
355 (2) (b) (846 SE2d 57) (2020 ). And while relevance is a binary concept

– evidence is either relevant or not

– probative value is relative : Evidence is relevant if it has “ any tendency ” to prove or disprove a fact, whereas the probative value of evidence derives in large part from th e extent to which the evidence tends to make the existence of a fact more or less probable. Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. And the extent to which evidenc e tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered. Probative value also depends on the marginal worth of the evi dence

– how much it adds, in other words, to the other proof available to establish the fact for which it is offered. The stronger the other proof, the less the marginal value of the evidence in question. And probative value depends as well upon the need f or the evidence. When the fact for which the81 evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence. (Citations, punctuation and footnote s omitted ; emphasis supplied .) Olds v. State , 299 Ga . 65, 75

- 76 (2) (786 SE2d 633) (2016). We consider each of McIver ’ s evidentiary contentions in turn

. ( b ) McIver complains of the State ’ s introduction of evidence of Diane ’ s supposed second will, which the trial court characterized as

“ powerful evidence of motive. ” A s noted above in footnote 6 , the evidence that such a will existed was very slight, consisting of a
statement allegedly made by Diane about two years before her death referring to a n unidentified document as “ my new will. ” No second will was ever found despite an intensive search ; 57 the McIvers ’ estate planning attorneys knew of no such will ; and no evidence was presented of the supposed will ’ s contents or whether it s provisions

were advantageous, disadvantageous, or neutral to McIver. Moreover, no evidence was presented that McIver knew of such a

57 The State executed search warrants at the offices of the McIvers’ attorneys, and an advertisement was placed in the legal organ of the county seeking any attorney who had drafted such a will.82 will or its contents, or had access to it

. Yet the State argued that the mere existence of a supposed second will, with no evidence of its provisions or of McIver ’ s knowledge of or access to it , was relev ant to show that he had a financial motive to kill Diane and to show that when he shot her, he did so with the intent to kill or at least violently injure her. The State noted that the supposed second will theoretically could have left all Diane ’ s property to someone other than McIver , including her interest in the ranch property

. But, a s McIver points out, the supposed second will could not have affected the disposition of Diane ’ s interest in the ranch property , because the McIvers held the property as joi nt tenants with right of survivorship. See OCGA § 44

- 6

- 190; see also Biggers v. Crook , 283 Ga. 50, 52

- 53 (1) (656 SE2d 835) (2008) ( noting that OCGA § 44

- 6

- 190 (a) (3) provides for a “ lifetime transfer of all or a part ” of a joint tenant ’ s interest. (Empha sis supplied. ) )

. Moreover, as to Diane ’ s other property, the State ’ s argument required the jury to make a series of increasingly speculative83 inferences : (1) that Diane executed or intended to execute a second will; (2) that the provisions of th e will w ere disadvantageous to McIver in some way ; (3) that McIver knew of the new will; (4) that McIver knew the contents of the new will; and ( 5 ) that McIver therefore had a motive to kill Diane to prevent her from executing the new will or, if she had already executed it, to kill her so that he could obtain and destroy all copies of the new will. Without any additional evidence, t h e chain of inferences between the evidence in question and any legally relevant point “ is simply too long, dubious, [and] attenuated ” to allow the evidence to be introduced

. State v. Stephens , 310 Ga. 57, 60

- 61 (1) (849 SE2d 459) (2020) ( affirming trial court ’ s exclusion of evidence r equiring series of unproven inferences to connect defendant with murder weapon ). See also Olds , 299 Ga. at 75 n.14 (2) ( noting “ ‘ the number of intermediate propositions between the item of evidence and the ultimate consequential fact that the item is offer ed to prove ’ ” as tending to diminish probative value. (Citations omitted.) )

. Here t he State ’ s evidence arguably show ed the possibility of a second will , and such84 a will might be relevant to motive if evidence of its provisions and McIver’s knowledge of its existence were shown . However, the State here did not offer evidence sufficient to “ make the existence of any fact that is of consequence to the determination of the action more probable or less probable ” under Rule 401. It wa s therefore irrelevant and in admissible , and the trial court abused its discretion in admitting it

. ( c ) McIver also complains of the State ’ s introduction of evidence regarding OCGA § 53

- 1

- 5, sometimes referred to as the “ slayer
statute , ” which the trial court also characterized as “ po werful evidence of motive. ” 58 Prosecution witnesses testified that the statute imposed a forfeiture on any person found guilty of

“ intentional ” homicide, and would apply to Diane ’ s extant will and

58 OCGA § 53

- 1

- 5 (a) provides: An individual who feloniously and intentionally kills or conspires to kill or procures the killing of another individual forfeits the right to take an interest from the decedent’s estate and to serve as a personal representative or trustee of the decedent’s estate or any trust created by the decedent. For purposes of this Code section, the killing or conspiring to kill or procuring another to kill is felonious and intentional if the killin g would constitute murder or felony murder or voluntary manslaughter under the laws of this state.85 possibly to the joint tenancy of the ranch property. But t h e connection between this evidence and a motive f or McIver ’ s alleged intent to kill or injure Diane is tenuous at best . As the trial court observed at the hearing on McIver ’ s motion for new trial, “ It seems like it would cut against the financial motive, ” because it would prevent McIver from receiving any interest in Diane ’ s estate and possibly the ranch property as well . Neither the Attorney General nor the District Attorney addresses this issue in their briefs , asserting in conclusory fashion that testim ony regarding the slayer statute was evidence of motive and thus relevant. 59 Th e State also fails to address why McIver, if he were trying to avoid the effect of the slayer statute while intentionally killing Diane for financial gain, would do so in circums tances where there could be no question that he shot Diane , in the presence of her

59 Both the District Attorney and the Attorney General rely heavily upon the assertion that McIver invited testimony regarding the slayer statute in questioni ng a witness, and thus cannot complain of its introduction. McIver argues in reply that the witness’ answer was non

- responsive and counsel interposed an objection. But we assume that this will not recur on any retrial.86 best friend. Without more, this evidence was not relevant to demonstrate a motive for McIver to murder Diane or his intent to kill her , and it should have been excluded

. 60 ( d ) McIver next complains that evidence of the cataloging of Diane ’ s possessions , as well as the auction of her jewelry, furs, and other items months after her death , was irrelevant to any issue in the case and should not have been admitted

. The State argued at trial that this evidence showed that McIver had no sentimental attachment to Diane ’ s personal items , indicating that he did not love

60 McIver also asserts that the prejud icial effect of this evidence substantially outweighs any probative value under Rule 403, arguing strenuously that the State ’ s purpose in presenting evidence of the slayer statute was to convince the jury to return a verdict of guilty at least as to felony murder . We agree. He points out that the witnesses testified, and the prosecutor emphasized , that a conviction for an intentional killing would prevent McIver from inheriting any portion of his wife ’ s estate. This evidence had an undue tendency to suggest that the jury should find McIver guilty of murder rather than involuntary manslaughter in order to punish him by barring him from inheriting Diane’s property, which would be an improper basis for decision. Thus, even if relevant, the at best minimal proba tive value of the evidence was substantially outweighed by the danger of unfair prejudice

. See Old Chief v. United States , 519 U. S. 172 , 180 (B) (1) (117 SCt 644, 136 LE2d 574) (1997) (observing that evidence may create a danger of unfair prejudice when i t has “the capacity . . . to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged” or has “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” (Citations and punctuation omitted.)). So the evidence should have been excluded under Rule 403 as well.87 her , only wished to obtain her money, and thus had a motive for killing her

. We agree that the evi dence is relev ant. T he attorney for Diane ’ s estate explaine d at some length the manner in which the estate was administered , and his fairly extensive role in advising McIver , because he believe d that McIver had n ever acted as an executor before

. The attorney testifie d that one of an executor ’ s first duties is to locate all the assets of the estate , although several of Diane ’ s friends testified that the cataloging of her possessions made them uncomfortable

. The attorney further explained that he, not McIver, suggeste d the sale of Diane ’ s personal property, because he reviewed the records of the estate and determined that there was not sufficient cash in the estate to satisfy the specific bequests listed in the will . For that reason , he advised McIver to sell Diane ’ s clo thing, jewelry, and furs to meet the immediate needs of the estate, because those items were very stylish, expensive, one - of

- a - kind items that would lose their value over time. McIver agreed with this recommendation , and the property was sold at auction

.88 As the State argues, t his evidence was relevant to show a financial motive on McIver ’ s part in agreeing to an early sale of Diane ’ s property , because the cataloging and immed iate sale of the property, while not directly providing monetary gain to him, would move the administration of the estate forward and thus contribute
to his earlier receipt of the remaining estate assets. 61 See Slakman v. State , 280 Ga. 837, 841, 842 (3) (632 SE2d 378) (2006) (evidence of defendan t ’ s participation in probate proceedi ng admissible as logically tending to show defendant ’ s “greed and his desire for financial gain from his wife ’ s death ”)

. In addition, this evidence was relevant to show McIver ’ s indifference to Diane ’ s memory, which would also go to motive

. 62 We therefore c annot say that the trial

61 Diane’s will provided that, after specific bequests of real and personal property to McIver and others, and the distribution of furnishings, art, “j ewelry, clothing and other such personal effects” according to a list referenced by the will, the residue of the estate was to be placed in a trust for McIver’s benefit. 62 In his brief, McIver argue s only that this evidence was not relevan t and does not as sert that it should have been excluded under Rule 403. In any event, w hile the probative value of this evidence was low, because of the attorney’s initiation of the sale, the lack of a direct benefit to McIver, and the small monetary amount involved compar ed to the overall value of the estate

– the State presented evidence that Diane’s estate was worth between $3.6 and89 court abused its discretion in ruling that this evidence was relevant

. ( e ) McIver also complains that the State improperly elicited testimony regarding the relative merits of Emory Hospital and Grady Hospital with regard to treatin g gunshot wounds and their distance from the site of the shooting, ostensibly to show t hat McIver intentionally directed Carter to drive to Emory in order to delay Diane ’ s treatment and increase the likelihood of her death. As noted above in footnote 4, the State a cknowledged during oral argument in this Court that no evidence was presented at trial that McIver believed that Grady was better equipped than Emory to treat gunshot wounds or that he intentionally d irected Carter to drive to Emory to avoid going to Grady. Accordingly, this evidence was not relevant and should have been excluded. ( f

) We reach a different conclusion with regard to evidence of McIver ’ s demeanor at the hospital. McIver complains that the State elicited irrelevant testimony from hospital personnel that McIver

$ 4.6 million at her death, while the sale realized $67,848

– any prejudicial effect likewise seems small

.90 shed “ no tears ” when told that Diane had died , that he was very calm , and that he did not appear to be upset or distraught

. From this, the State argued in closing that McIver “ show[ed ] none of the universal signs of grief. ” The trial court denied McIver ’ s motion in limine to exclude t his evidence and admitted it at trial over his objection

. E vidence of a defendant ’ s “ condition and demeanor ” near the time of the alleged crime s generally is relevant and admissible,

see Morgan v. State , 307 Ga. 889, 895 (3) (a) (838 SE2d 878) (2020) , including witness testimony regarding his or her “ perception of [the defendant ’ s] demeanor at that time. ” (Citations omitted.) Snipes v. State , 309 Ga. 785, 792 (3) (b) (i) ( 848 SE2d 417) (2020). McIver makes no argument that would take the challenged evidence outside the operation of this general principl e. Accordingly, the trial court did not abuse its discretion in admitting this testimony about McIver ’ s de meanor at the hospital. ( g ) Finally, McIver contends that the State used a “ constant drumbeat of racial animus ” to “ inflame the passion of the jury ,” pointing bot h to evidence and argument by the State to support t his91 contention

. First, a witness testifie d that McIver told him why he asked for his gun when Diane and Carter decided to take the Edgewood Avenue exit from the D owntown C onnector : “ He [i.e., McIver] was concerned because of the people that were around, homeless people, maybe they were carjackers. I didn ’ t know who they all were. Maybe they were Black Lives Matter protesters

. ” McIver asserts that the State brought one of the charges of influencing a w itness

– as to which the trial court granted a directed verdict of acquittal

– for the sole purpose of getting this testimony admitted at trial by the witness in question , and that its probative value was substantially outweighed by the danger of unfair pr ejudice and thus should have been excluded under Rule 403

. Even putting aside the relevance of this testimony to the witness

- influencing count, McIver ’ s testimony was relevant to show what he was thinking in the time leading up to the shooting , and it

was highly probative on that issue because it was McIver ’ s own description of why he asked for his gun. While McIver argues that92 the testimony implied that he was prejudiced against the protesters on account of their race and thus th at he was a person of bad

c haracter, any such prejudic e did not substantially outweigh the probative value of the testimony. Accordingly, the trial court did not abuse its discretion in admitting this evidence . See Edwards v. State , 308 Ga. 176, 183 (2) (839 SE2d 599) (2020) ( appell ant ’ s explanation in recorded telephone c all of events surrounding fatal shooting was “ highly probative ” even though it “ may have cast appellant in an unfavorable light ” (Citations omitted.)). For similar reason s , we conclude that the trial court did not abuse its discretion in admitting t he testimony of Dr. Marty Sellers, one of the two doctors who told McIver that Diane had died

. Specifically, Dr. Sellers testified that when McIver entered the consulting room, the other doctor, Dr. Blayne Sayed, asked Mc Iver to sit down, and McIver responded, “Don’t tell me what to do, boy.” McIver moved in limine to exclude this evidence as irrelevant and

un fair ly prejudicial because it would “[a]ppeal to racial bias” and “inject . . . racial issues into a trial that has nothing to do with race.”93 The record shows, however, that Dr. S a yed did not testify at trial, and Dr. Sellers did not testify about Dr. S a yed ’ s race , ethnicity, or
age . The trial court ruled that this testimony was relevant as it showed McIver ’ s statement s and demeanor during the aftermath of the shooting , and that its probative value was not outweighed by any unfair prejudice. W e conclude that the trial court did not abuse its discretion in so rul ing

. 63 Evidence is intrinsic when it pertains to the chain o f events explaining the context, motive, and set

- up of the crime, and is admissible so long as it is linked in time and circumstances with the charged crime, forms an integral and natural part of an account of the crime, or is necessary to complete the sto ry of the crime for the jury. There is no bright

- line rule regarding how close in time evidence must be to the charged offenses, or requiring evidence to pertain directly to the victims of the charged offenses, for that evidence to be admitted properly as intrinsic evidence.

63 The trial court also stated that th is evidence was admissible to impeach by contradiction the testimony elicited by the defense on cross

examination portraying McIver as a grieving husband and “the consummate Southern gentleman who ’ s polite to everyone . . . . [and] just an all around super good guy.” But a character trait may be proved or rebutted only by testimony as to reputation or in the form of an opinion , unless the character trait “is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character

. ” (Citations, punctuation, and footnote omitted.) Griffin v. State , 309 Ga. 860, 873 (5) (b) (849 SE2d 191) (2020) (citing OCGA § 24

- 4

- 405 )

. Dr. Sellers’ testimony as to a single instance of conduct on McIver’s part did not fall within this r ule.94 (Citations and punctuation omitted

. ) Hughes v. State , 312 Ga. 149, 152 (1) ( 861 SE2d 94 ) ( 2021 ). Evidence of McIver ’ s statements at the hospital, shortly after the shooting and at or near the time of Diane ’ s death, was closely linked in time and circumstances to the shooting and wa s an integral part of the account of the event. And while intrinsic evidence may be excluded under Rule 403 if its probative value is substantially outweighed by unfair prejudice, see Hughes , 312 Ga. at 153 (1), this evidence, while not particularly probative, was also not particularly prejudicial, especially given that Dr. Sayed did not testify at trial and his age and ethnicity were not made known to the jury

. The refore, the trial court did not abus e its discretion in admitting this testimony. Finally , with respect to McIver ’ s contentio ns as to improper argument by the State in which it was stated or implied that McIver harbored racial prejudice , we caution the State and the trial court to be mindfu l of the impropriety of such argument s if there is a retrial

. While several portions of the State’s closing argument were95 questionable , 64 w e note particularly and with disapproval the prosecutor ’ s display of a PowerPoint slide with a bullet point reading

“ KKK ” during his closing argument

. 65 Q uestioned at oral argument in this Court , t he State ultimately acknowledged that no evidence was produced at trial to support any inference that the Ku Klux Klan was relevant to th is case . McIver enumerate s th e prosecuto r ’ s conduct as error, and he included in his appellate brief a still frame from a video recording of the prosecutor ’ s closing argument, showing the prosecutor gesturing towards the offending slide in the courtroom. But McIver did not object at trial, and “ we do not review unpreserved challenges to closing arguments in non

- death penalty cases, even for plain error. ” (Citation omitted.) Moon v. State , 311 Ga. 421, 426 (4) (858 SE2d 18) (2021).

64 As McIver notes, the State emphasized in closing argument both the Black Lives Matter statement and the statement to Dr. Sellers , making several pointed comments that, from the cold transcript , appear aimed at suggesting that McIver was racially b iased

. 65 This bullet point appeared on the PowerPoint slide immediately below one referencing “Black Lives Matter” protesters.96 While th is instance of th e prosecutor ’ s conduct therefore
cannot be review ed as potential reversible error, we strongly caution the State that this or any similar behavior is not to be repeated upon any retrial of this case. We have repeatedly noted that in the absence of relevance, “ racial bias or prejudice should not be injected into the proceedings, as such issue could tend to destroy the impartiality of the jury and because it would not be relevant .” (Citation and punctuation omitted.) Merritt v. State , 311 Ga. 875, 884 (3) (860 SE2d 455) (2021); see also Boring v. S tate , 289 Ga. 429 , 434 ( 711 SE2d 634 ) ( 2011 ) (link between evidence and appellant ’ s purported satanic beliefs was “forged only via the State ’ s opening statement and closing argument, which itself was improper. ” (Citations omitted.)). Moreover, [t] he respon sibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. . . . It has often been stated that it is the duty of a prosecuting attorney to see that justice is done and nothing more. That dut y should not be forgotten in an excess of zeal or the eager quest for victory in his case. The people of the state desire merely to ascertain beyond a reasonable doubt that the accused is guilty of the crime charged, and do not countenance any97 unfairness u pon the part of their representatives in court. (Citations and punctuation omitted.) Carr v. State , 267 Ga. 701, 712 (10) (482 SE2d 314) (1997) , overruled in part on other grounds by Clark v. State , 271 Ga. 6 (5) (515 SE2d 155) (1999) ; see also Smith

v. State , 288 Ga. 348, 355

- 356 (10) (b) (703 SE2d 629) (2010) ( “ In this regard, we must remind all prosecutors in this State that i t is not their job to pursue stunts and antics during their closing arguments that are designed merely to appeal to the prejudic es of jurors

. ” ) Judgment affirmed in part and revers ed in part

. All the Justices concur , except Peterson, J., not participating, and LaGrua, J., disqualified

.