In the Supreme Court of Georgia

Decided: August 9, 2022

S22A0583. MOORE v. THE STATE.

 COLVIN, Justice.

Nikita Moore appeals her conviction for malice murder arising 

out of the 2010 death of her two-year-old son, Ma’Kel MooreTompkins.1 On appeal, Moore claims that the circumstantial 

 1 The death occurred on December 10, 2010. On April 29, 2011, a Fulton 

County grand jury indicted Moore and her boyfriend, Reginald Johnson, on 

charges of malice murder (Count 1), felony murder predicated on aggravated 

assault (Count 2), felony murder predicated on cruelty to children in the first 

degree (Count 3), felony murder predicated on aggravated battery (Count 4), 

aggravated assault (Count 5), aggravated battery (Count 6), and two counts of 

cruelty to children in the first degree (Counts 7 and 8). Moore was also indicted 

for felony murder predicated on cruelty to children in the second degree (Count 

9) and cruelty to children in the second degree (Count 10).

Moore and Johnson were jointly tried before a jury from August 13 to 21, 

2012. The jury found Moore and Johnson guilty as charged. The trial court 

sentenced both defendants to serve life in prison with the possibility of parole 

for Count 1 and 15 years concurrent for Count 8. The court merged for 

sentencing purposes or vacated by operation of law the remaining counts. See 

Malcolm v. State, 263 Ga. 369, 372-374 (4), (5) (434 SE2d 479) (1993). See also 

Dixon v. State, 302 Ga. 691, 697-698 (4) (808 SE2d 696) (2017). Moore filed a 

motion for new trial on September 20, 2012, and amended the motion on 

August 20, 2020. After conducting a hearing on May 17, 2021, the trial court 
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evidence presented at trial was insufficient to support her murder 

conviction because it failed to exclude every reasonable hypothesis 

other than her guilt.2 For the reasons that follow, we affirm.

Construed in the light most favorable to the jury’s verdicts, see 

Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013), the evidence 

presented at trial showed that, in the latter half of 2010, Moore and 

her boyfriend, Reginald Johnson lived together with Ma’Kel. Moore 

worked day shifts at a Sonic restaurant, and Johnson worked night 

shifts at a McDonald’s. When one adult was at work, the other had 

exclusive control over Ma’Kel. 

Ma’Kel was in the process of being potty trained, and when he 

soiled his diaper, Moore would strike him with a belt or her hand.

Moore allowed Johnson to do the same. On several occasions, the 

couple’s disciplinary practices caused Ma’Kel to have bruises and 

other visible injuries.

 

denied the motion for new trial on November 4, 2021. The case was docketed 

to this Court’s April 2022 term and submitted for a decision on the briefs.

2 Moore does not raise any challenge to her conviction for cruelty to 

children in the first degree.
3

Moore testified that on December 8, 2010, Ma’Kel seemed 

healthy and ate and drank normally that evening. Moore woke up 

to get ready for work at around 4:30 a.m. the next morning, and 

Johnson returned home while she was in the shower. Moore dressed 

Ma’Kel and placed him in the car so that Johnson could drive her to 

work at about 5:30 a.m. After arriving at Sonic, Moore mentioned 

to her coworker, Linda Carpenter, that her son was not feeling well 

and was having a hard time waking up that morning. 

In his statements to police, Johnson said that when he arrived 

back at home with Ma’Kel, he noticed that Ma’Kel had wet his 

diaper. When he questioned Ma’Kel about the soiled diaper, Ma’Kel 

walked over to Johnson to give him a hug, as if to apologize. Johnson 

then decided to give Ma’Kel a shower, but he could not let go of 

Ma’Kel in the shower because his legs were limp. While trying to 

dry Ma’Kel, Johnson noticed that the back of his head was swollen. 

Johnson called Moore at work to ask what was wrong with Ma’Kel, 

saying that he was acting strangely and was unresponsive. Moore 

instructed Johnson to bring Ma’Kel back to Sonic so she could check 
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on him. 

When Johnson arrived, Moore observed Ma’Kel sleeping in the 

car seat with his head to the side. Moore tried waking Ma’Kel by 

opening his eyes and “hitting him on his face,” but those attempts 

did not work. Johnson prompted her to “feel the back of [Ma’Kel’s] 

head,” and she noticed that it “fe[lt] funny.” Carpenter came out of 

the restaurant with a wet rag to try to awaken Ma’Kel, but he 

remained unresponsive. Moore noticed that Ma’Kel was 

“breath[ing] funny,” as if he had asthma. Carpenter encouraged 

Moore to take Ma’Kel to the hospital. Before leaving, Moore called 

her manager because two people were required to be at the 

restaurant at all times. Moore and Johnson waited for the manager 

to arrive, and, by the time the manager got there, Ma’Kel had been 

sitting in the parking lot for approximately 30 to 40 minutes. 

During that period, no one called for an ambulance.

Moore told Johnson to drive her back to their apartment. At 

the apartment, Moore got Ma’Kel’s Medicaid card and changed her 

shirt because she “didn’t want to walk around in [her] work clothes 
5

and stuff.” Johnson then drove them to a hospital in south Fulton 

County. On the way to the hospital, Moore noticed that Ma’Kel’s 

mouth was “foaming,” and his breathing became more labored. They 

arrived at the hospital at around 7:30 a.m., and a doctor who 

examined Ma’Kel observed multiple bruises on and around Ma’Kel’s 

head, which appeared to have been caused within the prior 24 hours.

The doctor ordered a battery of tests and found a significant 

skull fracture, bleeding beneath the scalp and skull, and bruising in 

the brain. Moore told the doctor that Ma’Kel had hit his head the 

previous day “after falling due to potty-training concerns” but that 

he seemed normal afterward. Because this account did not explain 

the extent of Ma’Kel’s injuries, the doctor grew concerned about 

potential abuse and called the police. The doctor also informed 

Moore and Johnson that Ma’Kel would need to be flown to Children’s 

Healthcare of Atlanta, Egleston Hospital. The doctor said that 

Moore seemed “nonchalant” and Johnson appeared “indifferent” 

when they heard this news.

At Egleston Hospital, Ma’Kel was observed to have multiple 
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bruises on his head and torso, as well as an indentation on the back 

of his skull line. His temperature was 91 degrees, and he was taking 

seven to eight breaths per minute instead of the normal 25 to 30. A 

social worker from the hospital concluded that Ma’Kel’s injuries 

were consistent with “non-accidental trauma.” At around 11:00 

a.m., a doctor evaluated Ma’Kel and found him to be “nearly brain 

dead” from head trauma, which he concluded was likely inflicted “at 

least 12 hours” before he received a CT scan at the previous hospital. 

The doctor said that the amount of force used to cause the injury was 

equivalent to a fall onto concrete from a one-to-two story height and 

that a child would not have been able to act normally after such an 

injury.

Moore told police officers at Egleston Hospital that Ma’Kel may 

have fallen two days prior but then suggested a few minutes later 

that he may have fallen that morning. Johnson offered that the 

injuries may have occurred while Ma’Kel did somersaults, and 

Moore added that Ma’Kel may have scraped his head on a wall while 

sleeping. Moore later admitted that, on December 7 or 8, Ma’Kel fell 
7

while she was spanking him with a belt and the buckle hit his head, 

causing a mark. She also stated that, a week or so earlier, Ma’Kel 

had fallen off a chair in the kitchen, hitting his head as he fell into 

the wall and a table.

Ma’Kel died on December 10, and when Moore saw Ma’Kel’s 

biological father, Maricus Tompkins, at the hospital, she told him,

“Don’t worry about [Ma’Kel’s death], move on, life will be ok.” 

Tompkins testified that Moore also began posting on her social 

media about wanting to go out to clubs and move on with her life.

The medical examiner concluded that the cause of death was 

blunt-force trauma. The medical examiner also found multiple 

bruises internal to the scalp, including a square bruise similar in 

shape to a belt-buckle-shaped injury found on Ma’Kel’s buttocks. 

The combined testimony from the doctors who treated Ma’Kel 

established an approximate timeframe for the injury as being 

between about 7:30 a.m. and 7:30 p.m. on December 8. On that day, 

Johnson was alone with Ma’Kel until Moore finished her shift 

sometime between noon and 2:00 p.m., and Moore was alone with 
8

Ma’Kel after 2:00 or 2:30 p.m., when Johnson went to work. 

On appeal, Moore argues that the circumstantial evidence 

presented at trial failed to exclude the reasonable hypothesis that 

Johnson was solely responsible for Ma’Kel’s death. Accordingly, she 

contends that the evidence was insufficient to support the 

requirement of former OCGA § 24-4-6 that circumstantial evidence 

“shall not only be consistent with the hypothesis of guilt, but shall 

exclude every other reasonable hypothesis save that of the guilt of 

the accused.”3 We disagree.

“The fact that the evidence of guilt was circumstantial does not 

render it insufficient.” Anglin v. State, 312 Ga. 503, 506-507 (1) (863 

SE2d 148) (2021) (citation and punctuation omitted). Although 

circumstantial evidence must “exclude every other reasonable 

hypothesis save that of the guilt of the accused,” “[n]ot every 

hypothesis is reasonable.” Id. (citations and punctuation omitted). 

“[I]t is for the jury to determine whether an alternative hypothesis 

 3 Moore was tried under the former Evidence Code. A provision identical 

to former OCGA § 24-4-6 appears in OCGA § 24-14-6 of the current Evidence 

Code. See Tyler v. State, 311 Ga. 727, 731 n.3 (2) (859 SE2d 73) (2021).
9

passes muster,” and we will not disturb a jury’s finding that an 

alternative hypothesis was not reasonable “unless it is 

insupportable as a matter of law.” Id. Further, “[i]t is the role of the 

jury to resolve conflicts in the evidence and to determine the 

credibility of witnesses.” Graham v. State, 301 Ga. 675, 677 (1) (804 

SE2d 113) (2017) (citation and punctuation omitted). Accordingly, 

“the resolution of such conflicts adversely to the defendant does not 

render the evidence insufficient.” Id. (citation and punctuation 

omitted). 

Here, the evidence was sufficient to enable the jury to reject as 

unreasonable the alternative hypothesis that Johnson alone was 

responsible for inflicting the blunt force trauma that led to Ma’Kel’s 

death. By Moore’s own admissions, Ma’Kel suffered several head 

injuries either as a result of her own discipline or when he was under 

her exclusive supervision. Although Moore downplayed the injuries 

Ma’Kel received while in her care, the jury was entitled to discredit 

her testimony and statements about the timing, extent, and cause

of those injuries and find that Moore inflicted the fatal injury during 
10

the window of time in which medical experts estimated the bluntforce trauma occurred. See Wilkerson v. State, 307 Ga. 574, 574 (837 

SE2d 300) (2019) (noting that we defer to the jury’s resolution of 

conflicting evidence, the credibility of witnesses, and the weight of 

the evidence). This is particularly true given Moore’s apparent 

indifference to Ma’Kel’s health, as exhibited by her multiple delays 

in getting him to the hospital, apparent “nonchalan[ce]” when told 

Ma’Kel’s serious medical condition required his transfer to another 

hospital, and inconsistent accounts of how Ma’Kel might have been 

injured. Because the jury was authorized to find that it was 

unreasonable to believe that Moore played no role in causing 

Ma’Kel’s death, former OCGA § 24-4-6’s requirement that 

circumstantial evidence exclude every reasonable hypothesis except 

that of Moore’s guilt was satisfied. 

Judgment affirmed. All the Justices concur.