In the Supreme Court of Georgia

Decided: March 5, 2024

S23A0927. McCULLUM v. THE STATE.

 PINSON, Justice.

In November 2019, Appellant Samuel Earl McCullum was convicted of the 1998 rape and malice murder of Monica Blackwell and 

the 1999 rape of C.C.1 McCullum contends on appeal that his convictions for the malice murder and rape of Blackwell, who died of 

1 Blackwell died on August 6, 1998, and C.C. was raped on May 9, 1999. 

On February 28, 2017, a DeKalb County grand jury indicted McCullum for 

malice murder (Count 1), felony murder predicated on rape (Count 2), felony 

murder predicated on aggravated assault with intent to rape (Count 3), and 

rape (Count 4), all in connection with Blackwell, and for another count of rape 

(Count 5), in connection with C.C. (Count 5 superseded a 2007 indictment that 

had also charged him with raping C.C.). At a trial from November 4 through 

14, 2019, a jury found McCullum guilty on all counts. The trial court sentenced 

McCullum to life in prison for malice murder, plus two consecutive life sentences for the rape convictions; the felony murder counts were vacated by operation of law.

McCullum filed a timely motion for new trial on December 10, 2019, 

which was amended by new counsel on October 28, 2022, and again on December 14, 2022. Following a hearing on December 15, 2022, the trial court denied 

McCullum’s motion for new trial, as amended, on January 3, 2023. McCullum 

filed a timely notice of appeal on January 25, 2023, and the case was docketed 
2

cocaine intoxication and blunt-force trauma, were not supported by 

sufficient evidence.2 As to malice murder, McCullum argues that the 

evidence was not sufficient because no evidence showed that he intoxicated Blackwell or otherwise connected him to the drugs she 

took. As to Blackwell’s rape, he argues the evidence was not sufficient because the evidence did not exclude his hypothesis that he 

and Blackwell had a consensual sexual relationship. But the evidence, which we recount in detail below, was sufficient to authorize 

the jury to find that McCullum’s actions caused Blackwell’s death

and to convict him of malice murder. The evidence was also constitutionally sufficient to convict McCullum of Blackwell’s rape: evidence that Blackwell was found partially clothed and beaten by the 

side of the road with McCullum’s sperm in her vagina authorized 

to the August 2023 term of this Court and submitted for a decision on the 

briefs.

2 To the extent McCullum challenges the sufficiency of the evidence supporting the counts for which he was found guilty but not convicted—the two 

counts of felony murder of Blackwell—those challenges are moot because the 

counts either merged or were vacated by operation of law. See, e.g., Beamon v. 

State, 314 Ga. 798, 800 (2) n.2 (879 SE2d 457) (2022). 
3

the jury to reject his hypothesis that they had consensual sex. Finally, with respect to the conviction for the rape of C.C., McCullum 

contends that the trial court abused its discretion in denying his motion to dismiss that count on constitutional speedy trial grounds and 

in denying his motion to sever that count from the counts related to 

Blackwell’s murder and rape, but we conclude that the trial court 

applied the correct standards and did not abuse its discretion by 

denying the speedy trial motion or the motion to sever.3

1. The Evidence at Trial

The evidence at trial, viewed in the light most favorable to the 

verdicts, showed the following.

(a) Evidence of Blackwell’s Rape and Murder

Bonita Cox, Blackwell’s cousin, last saw Blackwell in early August 1998. Blackwell was a recovering drug addict, had been in rehab, and, according to Cox, was “being a mother” to her son. On the 

3 McCullum does not challenge the sufficiency of the evidence for his conviction for the rape of C.C. See Davenport v. State, 309 Ga. 385, 392 (4) (846 

SE2d 83) (2020) (holding that we no longer routinely review sua sponte the 

sufficiency of the evidence in non-death penalty cases).
4

last day Cox saw her, Blackwell was with a man whom Cox had 

never seen before. At trial, Cox identified McCullum in the courtroom as the man she saw Blackwell with that day. Blackwell introduced Cox to McCullum, said she would be back later, and left with 

him. After that, Cox never saw Blackwell alive again.

On August 6, 1998, a group of friends saw a body on the roadside and reported it to the police. This turned out to be Blackwell, 

who was partially clothed and “barely alive.” Blackwell was transported to the hospital, where she died. 

Dr. Gerald Gowitt, the medical examiner who performed 

Blackwell’s autopsy, listed her cause of death as “acute cocaine intoxication.” Dr. Gowitt testified that Blackwell had several abrasions on her face; a tooth knocked out, which was located in her 

esophagus; hemorrhages and bruises on the back of her head; and 

other similar blunt-force impacts to both sides of her head—all of 

which were consistent with someone hitting or beating her. Blackwell also had a “large amount” of benzoylecgonine, “a cocaine breakdown product,” in her blood. 
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Dr. Gowitt explained that cocaine is a stimulant that raises the 

user’s pulse and blood pressure, and “something you really don’t 

want to have happen to you” while under the influence of cocaine is 

another event, such as a beating or rape, that raises the pulse and 

blood pressure even more. Dr. Gowitt believed Blackwell died because, while she was under the influence of cocaine, she experienced 

“a lot of trauma to the head,” which would have raised her pulse and 

blood pressure. Dr. Gowitt was unable to determine from the autopsy if Blackwell had been raped but opined that, if she had been, 

that too would have contributed to her death in combination with 

the beating and cocaine. He concluded that Blackwell died because 

of “[t]he combination of acute cocaine intoxication superimposed on 

all of these head injuries.” 

During the autopsy, Dr. Gowitt also did a sexual assault workup on Blackwell, consistent with the standard office policy at the 

time for “any female that is murdered.” A GBI forensic scientist 

identified the presence of sperm on the vaginal smear collected during Blackwell’s autopsy, developed a DNA profile from the sperm, 
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and added that DNA profile to the Combined DNA Index System 

(CODIS).

A GBI forensic serologist tested Blackwell’s shorts but found 

no seminal fluid. In response to a hypothetical scenario posed by the 

State, the serologist agreed that the absence of seminal fluid on 

Blackwell’s shorts was more consistent with her being raped and 

then dropped on the side of the road than it was with having consensual sex. If Blackwell had consensual sex, dressed, and walked 

around afterwards, gravity would have caused the seminal fluid to 

leave her body, and the fluid likely would have been found on her 

shorts.

In 2002, the DNA evidence collected during the investigation 

of Blackwell’s rape and murder was matched to McCullum via 

CODIS. 

(b) Evidence of C.C.’s Rape

On the evening of May 9, 1999, C.C. was walking along Lawrenceville Highway when a car approached her and the man driving 

offered her a ride, which she accepted. The man told C.C. he needed 
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to stop by his work, pulled into an auto repair shop, locked the gate, 

and then pulled his car into one of the bays and closed the bay door. 

C.C. was worried at this point but was unable to flee because there 

was a guard dog on the property that “seemed to be very vicious.” 

The man raped C.C. in the back of the car. C.C. testified that the 

man was “very aggressive. So the more I fought him, the more aggressive he would become with me.” The man then made C.C. exit 

the car and go into the bathroom, where he raped her again and tried 

to force her to give him oral sex; when she refused, he “hit” her and 

“knocked [her] to the ground,” and then raped her again. Eventually, 

the man drove C.C. back to her apartment, letting her go after she 

promised she would not “tell on him” because she was “on the run”

(she had come to Georgia because she was trying to avoid arrest for 

drug charges in Ohio). 

C.C.’s friends convinced her to report the rape, and she did. But 

she gave the police a fake name because she did not want to be arrested for the pending charges in Ohio. C.C. submitted to a sexual 

assault examination, and her sexual assault kit was sent to the GBI, 
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where an analyst generated a DNA profile from sperm that was present on a vaginal swab collected during C.C.’s examination. That

DNA was entered into CODIS. In 2002, the DNA evidence collected 

during C.C.’s sexual assault examination was matched to McCullum 

via CODIS. 

At trial, C.C. identified McCullum in the courtroom as the man 

who gave her a ride and raped her in May 1999. Sherri Meeks, the 

owner and operator of the auto repair shop that employed McCullum 

at the time of C.C.’s assault, testified that McCullum sometimes did 

repairs overnight, alone, and that McCullum therefore had keys to 

the property, which was fenced. Meeks also confirmed that a German Shepherd guard dog who was not “friendly to strangers” stayed 

on the property at night to guard it.

(c) Evidence of the CODIS Match and Other Assaults

In 2007, investigators from Georgia traveled to North Carolina, 

where McCullum was incarcerated, to obtain a buccal swab from 

him to confirm the CODIS matches to the DNA collected from Blackwell’s autopsy and C.C.’s sexual assault examination. The buccal 
9

swab was tested and confirmed the match to the DNA collected in 

C.C.’s case in 2007;4 the match to the DNA from Blackwell’s case 

was confirmed in 2017.5 McCullum’s DNA was also matched to evidence collected during the investigation of the 1995 rape and murder 

of Theresa Blackwell (no relation to Monica Blackwell) in North Carolina, the 1998 rape and murder of Tamika Withers in Fulton 

County, Georgia, and the 2002 rape of a young woman, A.J., in Kentucky. At trial, the State introduced evidence of each of these assaults under OCGA § 24-4-413,6 which showed the following.

As to the rape of A.J. in Kentucky, officers responded to a 911 

4 McCullum was indicted for C.C.’s rape in 2007, but that indictment was 

later superseded by the 2017 indictment that charged him with crimes against 

both Blackwell and C.C. 

5 Investigator Bill Presnell explained that when he submitted McCullum’s buccal swab to the GBI in 2007, he thought the GBI would test the DNA 

against both cases. But when Blackwell’s case was put on a trial calendar in 

2017, he realized that the DNA had been confirmed against only C.C.’s case, 

not Blackwell’s case. He then submitted a new request to the GBI, and McCullum’s buccal swab DNA was then confirmed against the DNA collected in 

Blackwell’s case. 

6 That code section provides that “[i]n a criminal proceeding in which the 

accused is accused of an offense of sexual assault, evidence of the accused’s 

commission of another offense of sexual assault shall be admissible and may 

be considered for its bearing on any matter to which it is relevant.” OCGA § 

24-4-413 (a). On appeal, McCullum does not challenge the admissibility of the 

evidence of his assaults against A.J., Theresea Blackwell, or Withers.
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call from an auto repair shop reporting a rape in progress. When 

officers arrived at the shop, they first encountered McCullum and 

then heard a woman, A.J., screaming. Officers detained McCullum 

and then found A.J. chained to a pipe and bound with duct tape with 

her pants around her ankles. McCullum worked at the shop. 

During the investigation of A.J.’s rape, officers in Kentucky 

learned that McCullum had lived in Fayetteville, North Carolina in 

1995, contacted police in North Carolina, and suggested “it might be 

a good idea” for them to check for any unsolved homicides during 

that time. North Carolina police located a sexual assault kit with 

DNA evidence from the unsolved 1995 rape and murder of Theresa 

Blackwell, who had been found dead on the side of the road with her 

blouse pulled up, dried blood on her face and in her hair, and ligature marks on her neck, hands, and ankles; a fan belt and bungee 

cord were also found near her body. The DNA evidence from Theresa 

Blackwell’s case produced a match in CODIS to McCullum. North 

Carolina police were able to confirm that in 1995, McCullum worked 

at an auto repair shop located less than a mile from where Theresa’s 
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body was found. 

Withers’s body was found in Fulton County, Georgia on March 

15, 1998. The dress she had been wearing was knotted around her 

arm, she had blunt-force trauma and lacerations about her head and 

face, and her cause of death was blunt-force trauma. Forensic testing revealed the presence of saliva on Withers’s breast, a DNA profile was obtained from the saliva and added to CODIS, and that DNA 

was later matched to McCullum.

2. The Sufficiency of the Evidence of Malice Murder

McCullum contends that the evidence was insufficient as a 

matter of constitutional due process to support his conviction for the 

malice murder of Blackwell. He argues that the State failed to prove 

beyond a reasonable doubt that he caused Blackwell’s death because 

there was no evidence that he gave Blackwell the cocaine that killed 

her or that otherwise connected him to the cocaine she took.

(a) In reviewing the sufficiency of the evidence as a matter of 

constitutional due process, “the relevant question is whether, after 

viewing the evidence in the light most favorable to the prosecution, 
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any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” Cooper v. State, 317 Ga. 676, 

682 (1) (895 SE2d 285) (2023) (quoting Jackson v. Virginia, 443 U.S. 

307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)). 

“A person commits the offense of murder when he unlawfully 

and with malice aforethought, either express or implied, causes the 

death of another human being.” OCGA § 16-5-1 (a). In other words, 

the essential elements that must be proven to convict someone of 

malice murder are (1) malice, (2) causation, and (3) the death of another person. See Taylor v. State, 303 Ga. 624, 626 (1) (814 SE2d 

353) (2018). “Whether a killing is intentional and malicious is for the 

jury to determine from all the facts and circumstances.” Id. (punctuation and citation omitted). A malicious intent to kill can be shown 

by conduct the defendant knows “is substantially certain to cause 

the result, whether or not he desires the result to occur.” Id. (citation 

and punctuation omitted). “Cause,” for purposes of malice murder, 

is “proximate cause.” Id. at 627 (1). An injury proximately causes the 

victim’s death when the injury (1) is “the sole proximate cause of the 
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death,” (2) “directly and materially” contributes to the “happening of 

a subsequent accruing immediate cause of the death,” or (3) “materially accelerated the death, although proximately occasioned by a 

pre-existing cause.” Id. (citation and punctuation omitted). 

The evidence at McCullum’s trial, viewed in the light most favorable to the verdicts, authorized the jury to conclude that McCullum’s conduct caused Blackwell’s death because, at a minimum, he 

“materially accelerated” her death by beating and raping her, even 

if the death was “proximately occasioned by a pre-existing cause,” 

that is, cocaine intoxication. See id. The evidence showed that 

McCullum and Blackwell were together before her death, he was the 

last person she was seen with when she was alive, semen found in 

Blackwell’s vagina produced a DNA profile that matched McCullum’s DNA, the absence of seminal fluid on Blackwell’s shorts was 

more consistent with rape than consensual sex, and she had bluntforce injuries to her head that were consistent with hitting or beating. Although the medical examiner listed Blackwell’s cause of death 

as “acute cocaine intoxication,” he testified that the “combination” of 
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Blackwell’s head injuries and her cocaine intoxication together

caused her death; he also agreed that a rape would have further 

raised Blackwell’s blood pressure and pulse, and so would have also 

contributed to her death. Based on this evidence, the jury was authorized to conclude that McCullum beat and raped Blackwell and 

left her on the side of the road while she was under the influence of 

cocaine. The jury was also authorized, based on the medical evidence, to conclude that the beating and rape caused her death because, according to the medical examiner’s testimony, those events, 

in combination with the cocaine, caused her death. 

As for malice, the evidence authorized the jury to infer malice 

from the condition Blackwell was found in—nearly dead by the side 

of the road, only partially dressed, with significant head injuries. 

This condition was also nearly identical to the conditions in which 

McCullum’s other rape and murder victims were found. Like Blackwell, the murder and rape victims from North Carolina and Fulton 

County, Georgia were also found by the side of the road, partially 

clothed, with head injuries and bodily fluids containing McCullum’s 
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DNA on them. 

In sum, the evidence was constitutionally sufficient to support 

McCullum’s conviction for the malice murder of Blackwell. See, e.g., 

Taylor, 303 Ga. at 626-628 (1) (affirming conviction for malice murder where the evidence authorized the jury to conclude that the defendant intended to hit the victim with his car, which was the proximate cause of the victim’s death from an embolism).

(b) McCullum points out that the indictment charged that he 

“did with malice aforethought cause the death of Monica Blackwell, 

a human being, by cocaine intoxication in a manner unknown to the 

Grand Jury and dumping her without medical assistance on the side 

of the road.” Relying on the indictment’s language, he argues that 

the evidence therefore was not constitutionally sufficient because no 

evidence connected him to the cocaine Blackwell took, so the State 

did not prove that he caused her death “by cocaine intoxication” as 

the indictment specified. But in support of this argument, McCullum 

cites only the United States Supreme Court’s pathmarking decision 
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on the due process standard for assessing the sufficiency of the evidence, Jackson v. Virginia, 443 U.S. at 319 (III) (B), and one of our 

decisions applying Jackson’s standard. And that standard asks 

“whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (second 

emphasis added). In other words, the Supreme Court’s standard expressly says that evidence is measured against the essential elements of the crime, with no mention of other factual allegations set 

out in the indictment that are not elements of the crime. That is how 

we have consistently applied Jackson’s venerable standard since it 

was announced more than four decades ago. When our sufficiency 

decisions have looked to the indictment, they have done so only to 

determine which crime was charged, and whether the evidence was 

sufficient to authorize a jury to find the defendant guilty of that 

crime beyond a reasonable doubt. See, e.g., Harrington v. State, 300 

Ga. 574, 577-578 (2) (a) (797 SE2d 107) (2017) (reversing armed robbery conviction because the evidence did not exclude the reasonable 
17

hypothesis that the property in question, a cell phone, was taken 

during the defendant’s earlier entry into the victim’s home and before the victim interrupted the burglary-in-progress and was shot by 

the defendant, which meant there was not sufficient evidence of an 

essential element of the crime, i.e., that the phone was taken from 

the victim’s person by the use of an offensive weapon); Walker v. 

State, 296 Ga. 161, 166-167 (1) (c) (766 SE2d 28) (2014) (reversing 

conviction for felony murder of a baby because, although the evidence may have been sufficient to show that the defendant smothered the baby, the indictment only charged him with felony murder 

based on predicate felonies—i.e., essential elements of the crime—

of which there was not sufficient evidence). McCullum has not cited 

any decision (from Georgia or otherwise) that supports this indictment-allegation-focused approach, which his argument at best implicitly suggests. Nor has he offered any argument in support of departing from our longstanding approach to applying Jackson to the 
18

essential elements of the crime.7 Absent any such showing, we de7 In Musacchio v. United States, 577 U.S. 237 (136 SCt 70, 193 LE2d 639) 

(2016), the United States Supreme Court reiterated that, under Jackson v. Virginia, a challenge to the constitutional sufficiency of the evidence looks to 

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” 577 U.S. at 243 (II) (citation and punctuation omitted) (second emphasis added). The question in Musacchio was 

whether, in assessing the constitutional sufficiency of the evidence, a jury instruction that “incorrectly adds one more element” to the charged crime requires proof beyond a reasonable doubt of that extra element; the Court concluded that such proof of an extra element was not required. Id. at 243-244 (II).

In a footnote, the Court noted that it left “open several matters,” and 

“express[ed] no view on the question whether sufficiency of the evidence at trial 

must be judged by reference to the elements charged in the indictment, even if 

the indictment charges one or more elements not required by statute,” among 

other questions. Id. at 244 (II) n.2. We must take the Court’s explanation at 

face value: the Court simply took “no view” on the question whether the sufficiency analysis should measure evidence against not just the elements of the 

crime, but also extra “elements” added in the indictment that are not part of 

the crime. The Court offered nothing to suggest that this novel theory of sufficiency finds support in Jackson or any of its past decisions. Nor does the balance of Musacchio hint at such a theory. The dissent suggests that Musacchio

is both “consistent with” and may go “further” than Jackson in this way when 

it explains sufficiency review as ensuring “that a defendant receives . . . a 

meaningful opportunity to defend against the charges against him,” but that 

understanding of sufficiency review comes directly from—and indeed, is a 

quote from—Jackson itself. See Musacchio, 577 U.S. at 243 (II) (quoting Jackson, 443 U.S. at 314-315). We decline to read reasoning derived from Jackson

itself as an expansion of that decision’s standard for sufficiency review. Nor do 

we read Jackson itself to require more than what it says, which is to look at 

whether “any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt” when assessing the constitutional sufficiency of the evidence. Jackson, 443 U.S. at 319 (III) (B) (second emphasis 

added).
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cline to expand that settled approach in the way McCullum’s sufficiency argument would require.8 And as we just explained above, 

the evidence here was sufficient to authorize the jury to find beyond 

a reasonable doubt that each essential element of malice murder 

8 We do not decide a “difficult open question of federal constitutional law” 

here, as the dissent suggests. As we noted above, we do not read the Supreme 

Court’s decision in Musacchio to have “opened” any such question anew about 

Jackson’s well-settled standard for assessing the constitutional sufficiency of 

the evidence, and McCullum has raised no argument that we should address 

and decide any such “open question.” Given this posture, we merely apply Jackson’s established standard and measure the evidence against the essential elements of the charged offense, just like thousands of our decisions assessing 

the constitutional sufficiency of evidence in the nearly 45 years since Jackson 

was issued.

By contrast, the dissent would expand sufficiency review in a novel way

without citing a single decision across the country that has actually adopted 

that expanded approach. Although the dissent proposes an alternative path to 

reversal by construing McCullum’s sufficiency argument as a fatal variance 

claim, the dissent resolves this claim by applying its expanded view of the 

standard for reviewing the sufficiency of the evidence to reverse the trial 

court’s denial of McCullum’s motion for a directed verdict on malice murder.

So under either the dissent’s novel indictment-based sufficiency review or the 

construed fatal-variance theory, the dissent necessarily rejects the longstanding approach to sufficiency review that we apply here, under which McCullum’s conviction is affirmed.

The dissent expresses concern about the “due process implications” of 

applying Jackson’s established approach, relying on a hypothetical prosecution

for malice murder by shooting that the State proves at trial by evidence of poisoning or stabbing. We agree that scenario sounds unfair, but the defendant’s 

recourse there is clear: he could raise a fatal variance claim and secure a new 

trial if the difference between the indictment and the evidence introduced at 

trial prevented him from preparing his defense, took him by surprise, or failed 

to adequately protect against another prosecution for the same offense. See, 

e.g., Roscoe v. State, 288 Ga. 775, 776 (3) (707 SE2d 90) (2011). See also Berger 

v. United States, 295 U.S. 78, 82 (1) (55 SCt 629, 79 LE2d 1314) (1935).
20

was met. His claim therefore fails. 9

3. The Sufficiency of the Evidence of the Rape of Blackwell

McCullum contends that the evidence at trial was not sufficient to convict him of Blackwell’s rape as either a matter of constitutional due process or under OCGA § 24-14-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be 

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

9 McCullum’s only enumeration and argument challenging his malice 

murder conviction is that the evidence was insufficient to support that conviction as a matter of constitutional due process. A sufficiency claim is different 

in kind from a fatal-variance claim, which “merely is concerned with proof introduced in support of allegations and is not concerned with the findings the 

jury may make after having heard the evidence.” See Oglesby v. State, 243 Ga. 

690, 692 (3) (256 SE2d 371) (1979) (emphasis added). See also McCrary v. 

State, 252 Ga. 521, 522, 524 (314 SE2d 662) (1984) (concluding that the evidence was constitutionally sufficient to support the conviction for felony murder predicated on robbery but reversing that conviction because of a fatal variance where the indictment for malice murder did not “fairly put[] the defendant on notice” that he would have to defend against a charge of robbery or a 

felony murder predicated thereon). Even to the extent that McCullum’s sufficiency argument notes a difference between an allegation in the indictment 

and the proof at trial, he has offered no argument that this difference was a 

fatal variance—that is, that it prevented him from preparing his defense to the 

charges against him, took him by surprise, or failed to adequately protect him 

against another prosecution for the same offense. See, e.g., Roscoe, 288 Ga. at

776 (3). So we cannot reasonably construe McCullum’s sufficiency arguments 

as a fatal-variance claim, and we express no opinion as to whether such a claim

could have been successful were it properly before us.
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reasonable hypothesis save that of the guilt of the accused.”).

These claims fail. Viewed in the light most favorable to the verdict, the evidence showed that McCullum was the last person seen 

with Blackwell before she was found beaten and left on the side of 

the road, half naked, and with his sperm in her vagina, and the absence of seminal fluid in Blackwell’s shorts was more consistent with 

rape than consensual sex. That evidence authorized a jury to find 

beyond a reasonable doubt that McCullum raped Blackwell, and to 

reject as unreasonable the hypothesis that Blackwell consented to 

having sex with McCullum. See OCGA § 16-6-1 (a) (1) (“A person 

commits the offense of rape when he has carnal knowledge of: . . . [a] 

female forcibly and against her will.”). See also Lewis v. State, 306 

Ga. 455, 457, 459 (1) (a) (831 SE2d 771) (2019) (evidence which included that the victim’s body was discovered partially undressed, 

had defensive wounds, and had defendant’s sperm in her vagina was 

sufficient to sustain his convictions for murder and rape, and authorized the jury to reject his alternate hypothesis, that he and the 

victim had consensual sex, as unreasonable); Daniels v. State, 298 
22

Ga. 120, 123 (1) (779 SE2d 640) (2015) (evidence, including the state 

in which the victim’s body was found, DNA evidence linking the defendant to the victim, and evidence of prior similarly violent sexual 

conduct by the defendant, was “sufficient to support the jury’s conclusion that [the defendant] assaulted, raped, and murdered [the 

victim] as opposed to having engaged in consensual sex with her 

prior to her death at the hands of another”); Walker v. State, 282 Ga. 

406, 408 (1) (651 SE2d 12) (2007) (evidence, which included the state 

in which the victim’s body was discovered and DNA evidence linking 

the defendant to the victim, was sufficient to support the jury’s conclusion that the defendant raped and murdered the victim, and authorized the jury to reject the defendant’s alternate hypotheses, including that he and the victim had consensual sex). 

4. The Speedy Trial Motion 

McCullum contends that the trial court abused its discretion in 
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denying his motion to dismiss Count 5 (rape of C.C.) on constitutional speedy trial grounds.10

McCullum was initially indicted for C.C.’s rape in 2007. In 

2011, he filed a motion to dismiss the indictment for violations of his 

right to a speedy trial under the federal and state constitutions. A 

month later, the case was dead-docketed because McCullum was 

transferred to Kentucky to stand trial for the rape of A.J. In 2017, 

he was reindicted for C.C.’s rape in a superseding indictment that 

also included charges for the rape and murder of Blackwell. On June 

22, 2017, McCullum filed a “Motion to Adopt and Conform Applicable Motions Filed under [the] Previous Indictment,” which encompassed the 2011 motion to dismiss on speedy trial grounds. The trial 

court held a hearing on the speedy trial motion, orally denied the 

motion, and then entered a written order of denial on July 13, 2017. 

On June 24, 2019, McCullum renewed his speedy trial motion. 

10 McCullum does not contend that the speedy trial provision found in 

Article I, Section I, Paragraph XI (a) of the Georgia Constitution offers greater 

protection than the analogous provision found in the Sixth Amendment to the 

United States Constitution, so we assess his claim under only the United 

States Constitution. 
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The trial court held another evidentiary hearing and again denied 

the motion. The court’s July 25, 2019, order incorporated the factual 

findings and rulings from the July 2017 order and included additional findings with respect to the evidence that McCullum presented at the 2019 hearing. 

Constitutional speedy trial claims are analyzed under the twopart framework set out in Barker v. Wingo, 407 U.S. 514, 530-533 

(IV) (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United States, 

505 U.S. 647, 651 (II) (112 SCt 2686, 120 LE2d 520) (1992). Courts 

must first consider whether the length of time between the defendant’s arrest and trial is “presumptively prejudicial,” and a delay 

greater than one year is “typically presumed to be prejudicial.” Goins v. State, 306 Ga. 55, 57 (2) (b) (829 SE2d 89) (2019) (citation and 

punctuation omitted). The State concedes that the decade-plus delay 

between McCullum’s indictment and trial for C.C.’s rape was presumptively prejudicial, and we agree. See id.

If a court concludes the delay is presumptively prejudicial, as 

the trial court correctly did here, it must then apply a balancing test 
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that considers the length and reasons for the delay, the defendant’s 

assertion of his speedy-trial right, and the prejudice to the defendant. See Johnson v. State, 300 Ga. 252, 257 (3) (794 SE2d 60) (2016). 

These factors are to be considered collectively along with the relevant circumstances, see Leonard v. State, 316 Ga. 827, 839 (6) (889 

SE2d 837) (2023), and no one element is determinative of whether 

the right to a speedy trial has been violated, see Sweatman v. State, 

287 Ga. 872, 873 (2) (700 SE2d 579) (2010). Because trial courts are 

generally better situated to apply this “ad hoc” approach, we “accept 

the factual findings of the trial court unless they are clearly erroneous” and we accept the trial court’s conclusion “unless it amounts to 

an abuse of discretion.” See Henderson v. State, 310 Ga. 231, 235 (2) 

(850 SE2d 152) (2020) (citation omitted). We next address each of 

the Barker-Doggett factors in turn.

(a) The Length of the Delay 

As stated above, we agree with the trial court that the 10-plusyear delay between McCullum’s indictment and trial for C.C.’s rape

was presumptively prejudicial. See Goins, 305 Ga. at 57 (2) (b). The 
26

trial court found that McCullum had been incarcerated out of state 

for eight of the ten-plus years that comprised the delay, thus mitigating the weight the delay’s length had against the State, and ruled 

that “[w]eighing the length of the delay under the unique facts and 

circumstances of this case, the delay should be weighed against the 

State but not heavily.” We agree that the delay was uncommonly 

long, yet under the circumstances of this case, we see no abuse of the 

trial court’s discretion in weighing that factor against the State but 

not heavily given that a presumptively prejudicial length of delay 

does not “automatically trump the other Barker factors” and must 

instead be considered as part of the “case-by-case balancing required 

by Barker and this Court’s precedent.” See State v. Pickett, 288 Ga. 

674, 678 (2) (d) n.1 (706 SE2d 561) (2011) (“[A] bright-line rule allowing the presumption of prejudice after any period of delay to automatically trump the other Barker factors would be contrary to the 

case-by-case balancing required by Barker and this Court’s precedent.”). 
27

(b) The Reasons for the Delay

The trial court found that from 2007 to 2009, McCullum was 

incarcerated in North Carolina and Kentucky, so his incarceration 

during that period was not attributable to the pending rape charge 

in Georgia. From 2009 to 2011, the trial court found, McCullum was 

incarcerated in Georgia while awaiting trial for C.C.’s rape but, at 

the same time, was also serving his sentence for his North Carolina 

conviction. The trial court also found that from September 2011 to 

February 2017, the case was dead docketed at the State’s request to 

permit Kentucky’s prosecution of McCullum for the rape of A.J.

McCullum was extradited back to Georgia in February 2017, and 

since February 2017, McCullum had been arraigned and motions 

had been heard. The trial court also considered the complexity of the 

case and the State’s difficulty in locating an out-of-state witness, 

noted that the case appeared on “several trial calendars” during this 

period but did not go forward, and concluded that this factor “should 

weigh against the State, but not heavily,” in part because McCullum 

bore “some moderate responsibility for the delay,” as he represented 
28

at one point that he was not ready to proceed. 

The record supports the trial court’s findings regarding the reasons for the delay, and under the circumstances of this case, we see 

no abuse in the trial court’s discretion in ruling that those reasons 

should be weighed against the State, but not heavily so. See Barker, 

407 U.S. at 531 (IV) (“A deliberate attempt to delay the trial in order 

to hamper the defense should be weighted heavily against the government,” while an unintentional delay, such as that caused by the 

mere negligence of the prosecuting attorneys or the overcrowded 

docket of the trial court, “should be weighted less heavily.”). Accord

Wilkie v. State, 290 Ga. 450, 452 (721 SE2d 830) (2012); Sweatman, 

287 Ga. at 875 (4); Hassel v. State, 284 Ga. 861, 862 (b) (672 SE2d 

627) (2009).

(c) The Assertion of the Right to a Speedy Trial

The trial court found that McCullum failed to raise the speedy 

trial issue until more than two years after his indictment and 

weighed this factor “against Defendant, but not heavily.” Neither 

party asserts that the trial court abused its discretion in so ruling, 
29

and we see no abuse of discretion either. See Pickett, 288 Ga. at 676 

(2) (c) (3) (“[A] defendant may assert his constitutional right to a 

speedy trial at any time after he is arrested. . . . However, once his 

constitutional right accrues, the defendant has the responsibility to 

assert it, and delay in doing so normally will be weighed against 

him.”) (citations omitted). 

(d) Prejudice 

In assessing the prejudice of the delay to McCullum, the trial 

court considered the “oppressive pretrial incarceration, anxiety and 

concern of the accused, and the possibility that the accused’s defense 

will be impaired by dimming memories and loss of exculpatory evidence.” See Doggett, 505 U.S. at 654 (III) (A) (quoting Barker, 407 

U.S. at 532 (IV)) (punctuation omitted)). The trial court noted that 

this Court has recognized a “minimal possibility of oppressive pretrial incarceration” when a defendant was incarcerated for a separate offense, see Williams v. State, 279 Ga. 106, 109 (1) (d) (610 SE2d 
30

32) (2005) (punctuation omitted);11 that McCullum had presented no 

evidence that he experienced oppressive pretrial incarceration or 

undue stress or anxiety due to the pending Georgia rape charge; and 

that “[m]ost critically . . . the record contains no evidence nor any 

articulated prejudice to Defendant’s prospective defense likely to occur at trial.”12 Therefore, the court ruled that “[u]nder the unique 

11 On this point, McCullum relies on Redding v. State, 313 Ga. 730 (873 

SE2d 158) (2022) (“Redding II”) to argue that the trial court abused its discretion in relying on McCullum’s incarceration on the North Carolina charges in 

finding no prejudice. But in Redding II, we held that the trial court erred in 

ruling that the defendant’s probation hold on other charges, which prevented 

him from making bond, precluded the need to assess prejudice associated with 

pretrial incarceration. See Redding II, 313 Ga. at 735-736 (2). Redding II did 

not overrule Williams or its recognition that the possibility of oppressive pretrial incarceration is generally minimal when a defendant is already incarcerated for unrelated offenses, so we see no abuse of the trial court’s discretion 

here, where the trial court plainly assessed this factor and whether McCullum 

provided any evidence thereon as part of its prejudice analysis.

12 In its 2019 order, which incorporated the factual findings and rulings 

of the 2017 order, the trial court noted that at the more recent hearing McCullum was permitted to provide additional evidence on prejudice. McCullum 

called an investigator from the public defender’s office who testified that he 

was able to locate a witness who was familiar with McCullum and C.C. but 

that the witness was hostile and did not wish to speak with him further. Our 

review shows that the witness whom the investigator referred to was Meeks, 

the owner and operator of the mechanic shop where McCullum worked and 

where he raped C.C. The investigator testified that “to my knowledge she was 

supposed to be able to testify or give me a statement about her seeing [McCullum] with the alleged victim two or three days after the alleged incident was 

supposed to have happened,” but that when he spoke with her in 2019, “she 

couldn’t recall specifically seeing him with her after the incident because she
31

circumstances of this case . . . this final factor is weighed heavily 

against Defendant.” 

The record supports the trial court’s findings that McCullum 

failed to present sufficient evidence—and that the record otherwise 

lacked sufficient evidence—of prejudice under the fourth BarkerDoggett factor. Although we recognize that extraordinarily long pretrial delays “simultaneously increase the degree of prejudice presumed and decrease the expectation that the defendant can demonstrate tangible prejudice,” it remains true that “the passage of time 

is not alone sufficient to sustain a speedy trial claim.” Williams v. 

State, 277 Ga. 598, 601 (1) (d) (592 SE2d 848) (2004). Under the circumstances of this case, the trial court did not abuse its discretion 

in weighing this factor against McCullum. See Williams v. State, 314 

Ga. 671, 680 (4) (d) (878 SE2d 553) (2022) (“[W]hile a presumption 

couldn’t recall the incident time with any specificity.” He added, “she seemed 

hostile. She didn’t want to be involved in any form or fashion, and so she was 

really short with me.” We see no abuse of discretion in the trial court’s conclusion that even in light of this evidence, “there is still no showing of specific 

prejudice by the defense.”
32

of prejudice always exists once the threshold of presumptive prejudice is satisfied, the prejudice prong may be weighed against the defendant even in cases of excessive delay.” (citation and punctuation 

omitted)). See also Burney v. State, 309 Ga. 273, 286 (4) (a), 290-291 

(4) (d) (845 SE2d 625) (2020) (holding that the defendant failed to 

make the requisite showing of prejudice under the fourth BarkerDoggett factor despite presumptively prejudicial six-and-a-half-year 

delay). Cf. Williams, 279 Ga. at 109-110 (1) (d) (“We agree with the 

trial court that while the prejudice factor must not be weighed heavily against Williams, he has been unable to show any specific impairment to his defense attributable to the delay.”).

(e) Balancing the Factors

After making the above findings and conclusions, the trial 

court balanced the factors and denied the motion, noting that the 

length and reason for the delay weighed against the State, but not 

heavily; McCullum’s two-year delay in asserting his speedy-trial 

right weighed “slightly” against him; and the absence of prejudice 
33

weighed “heavily” against McCullum, so on balance and in the absence of any evidence “that the State delayed the case to hamper the 

defense or gain a tactical advantage,” the lengthy delay was “reasonable under the circumstances and in light of the complexity of 

the case.” The trial court’s detailed and reasoned denial orders show 

that it fulfilled its duty to weigh all four Barker-Doggett factors in 

the context of the particular circumstances of this case. See Jenkins 

v. State, 294 Ga. 506, 513 (2) (c) (755 SE2d 138) (2014). And under 

the circumstances of this case, we see no abuse in the trial court’s 

discretion in applying the Barker-Doggett framework and denying 

McCullum’s motions to dismiss Count 5 of the indictment for the

violation of his constitutional right to a speedy trial. See id. 

5. The Motion to Sever

McCullum finally contends that the trial court abused its discretion by not severing Count 5 (rape of C.C.) from Counts 1-4 (rape 

and murder of Blackwell) because he had an “absolute right to sever” 

and the crimes against each woman were so dissimilar. 

McCullum filed a pretrial motion to sever, which the trial court 
34

denied after a hearing. As relevant here, the trial court ruled that

“under OCGA § 24-4-413, the sexual assault of [C.C.] would clearly 

be admissible during the trial of the sexual assault and murder of 

Monica Blackwell.” 

A defendant has an “absolute right” to severance when charges 

are joined together “solely because they are of the same or similar 

character,” while severance lies within the trial court’s discretion 

when joinder is based on “the same conduct or on a series of acts 

connected together or constituting parts of a single scheme or plan.” 

See Harris v. State, 314 Ga. 238, 281 (4) (875 SE2d 659) (2022) (citations and punctuation omitted). But multiple offenses are not 

joined together “solely because they are the same or similar character” if evidence of one offense would be admissible at a separate trial 

for the other. See Carson v. State, 308 Ga. 761, 765 (2) (a) (843 SE2d 

421) (2020) (quoting Green v. State, 291 Ga. 287, 289 (2) (728 SE2d 

668) (2012)). Typically, a trial court does not abuse its discretion in 

denying a motion to sever where evidence of one charge would be 

admissible in the trial of the other and there is no evidence that the 
35

joinder confused or misled the jury. See Carson, 308 Ga. at 765-766 

(2) (a); Heard v. State, 287 Ga. 554, 558-559 (4) (697 SE2d 811) 

(2010). Cf. Harris, 314 Ga. at 282 (4) (concluding the trial court 

abused its discretion in denying defendant’s motion to sever the 

counts charging the defendant with a sex crime against a minor from 

charges related to the death of the defendant’s son where the offenses were “of an entirely different character”).

McCullum concedes that, under OCGA § 24-4-413, the evidence 

of C.C.’s rape “might be admissible” during the trial of Blackwell’s 

rape and murder, and we agree with the trial court that the evidence 

of C.C.’s rape would have been admissible under Rule 413 at a trial 

for Blackwell’s rape and murder. See OCGA § 24-4-413 (a) (in any 

criminal proceeding where the defendant is accused of sexual assault, evidence that the defendant committed other sexual assaults 

is admissible for any relevant purpose). He also has not offered any 

evidence that the failure to sever his trial for C.C.’s rape from his 
36

trial for Blackwell’s rape and murder confused or misled the jury.13

See, e.g., Simmons v. State, 282 Ga. 183, 185-186 (4) (646 SE2d 55) 

(2007). Accordingly, we conclude that the trial court did not abuse 

its discretion in refusing to sever Count 5 (rape of C.C.) from Counts 

1-4 (rape and murder of Blackwell). See Carson, 308 Ga. at 765-766 

(2) (a); Heard, 287 Ga. at 558-559 (4). 

Judgment affirmed. All the Justices concur, except Peterson, 

P.J., Bethel, and McMillian, JJ., who dissent in part.

13 McCullum concedes that the evidence of C.C.’s rape “might be admissible” under Rule 413 but contends that it should have been excluded under 

OCGA § 24-4-403 (Rule 403) because the probative value of the evidence of the

sexual assault of C.C. did not substantially outweigh the prejudicial effect of 

McCullum “having to defend multiple trials within a trial.” But he has not 

pointed on appeal to any unfair prejudice that resulted from the introduction 

of this evidence. At most, he argues that evidence of C.C.’s rape should have 

been excluded because it tended to support the State’s theory that the presence 

of his semen in Blackwell’s vagina resulted from rape rather than his contention that he and Balckwell had consensual sex. But although “inculpatory evidence is inherently prejudicial in a criminal case,” the risk of some prejudice 

does not require exclusion. “[I]t is only when unfair prejudice substantially 

outweighs probative value that the rule permits exclusion.” See Harris v. State, 

313 Ga. 225, 232 (3) (869 SE2d 461) (2022). Because McCullum has not made 

this showing, we conclude that the trial court did not abuse its discretion by 

failing to rule that evidence of C.C.’s rape should be excluded under Rule 403 

and granting the motion to sever on that basis. See McWilliams v. State, 304 

Ga. 502, 509-511 (3) (2018) (reviewing for an abuse of discretion the defendant’s claim that the admission of extrinsic evidence under OCGA §§ 24-4-404 

(b) and 24-4-413 violated Rule 403 and concluding the probative value of the 

prior sexual assaults, which tended to disprove the defendant’s claim that the 

murder victim’s injuries were accidental, was not outweighed by the risk of 

unfair prejudice). See also Carson, 308 Ga. at 765-766 (2) (a); Heard, 287 Ga. 

at 558-559 (4).
37

 MCMILLIAN, Justice, dissenting in part.

Under the well-established standard of Jackson v. Virginia, 

443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), this Court determines whether evidence is sufficient as a matter of constitutional 

due process by examining whether “any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable 

doubt.” Id. at 319 (III) (A) (emphasis in original). The United States 

Supreme Court has also recently indicated that, consistent with 

Jackson, sufficiency review under this legal standard may include 

something more than only looking at the elements of the crime:

Sufficiency review essentially addresses whether the government’s case was so lacking that it should not have even 

been submitted to the jury. On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure 

that a defendant receives the minimum that due process 

requires: a “meaningful opportunity to defend against the 

charge against him and a jury finding of guilt beyond a 

reasonable doubt.” 

Musacchio v. United States, 577 U.S. 237, 243 (II) (136 SCt 709, 193 

LE2d 639) (2016) (quoting Jackson, 443 U.S. at 314-15; other citation and punctuation omitted). 
38

Here, the State elected to allege in Count 1 of the indictment 

that in violation of OCGA § 16-5-1 (a), McCullum “did with malice 

aforethought cause the death of Monica Blackwell, a human being, 

by cocaine intoxication in a manner unknown to the Grand Jury and 

dumping her without medical assistance on the side of the road.” 

McCullum defended against this charge at trial by moving for a directed verdict of acquittal on the grounds that the State had failed 

to present any evidence to support the causation element alleged in 

the indictment—that McCullum had anything to do with drugging 

Blackwell. It is now clear from the record that the motion should 

have been granted. However, despite the lack of evidence supporting 

this causation allegation, the Court has now affirmed the malice 

murder conviction on sufficiency grounds on a different theory—that 

McCullum beat and raped Blackwell and left her by the side of the 

road to die—and has concluded that these facts sufficiently supported the statutory elements of the crime of malice murder.

I have serious concerns about the due process implications of 
39

such an approach.14 Moreover, in addressing a different question related to sufficiency analysis, the Musacchio Court left open several 

matters, including whether sufficiency should be evaluated based on 

what has been alleged in the indictment: “we express no view on the 

question whether sufficiency of the evidence at trial must be judged 

by reference to the elements charged in the indictment, even if the 

indictment charges one or more elements not required by statute.” 

Id. at 244, n.2. The Court has now decided to answer this difficult 

open question without analysis, relying on the “elements” language 

in the Jackson test. However, I would follow two lines of authority 

from our Court that have addressed similar sufficiency arguments 

but without deciding which line controls. Under either, I would reverse the malice murder conviction and remand the case to the trial 

court to resentence on one of the felony murder convictions, which 

14 Under the Court’s reasoning, the State could prosecute someone for 

malice murder by shooting and prove the case by any other means such as 

poisoning or stabbing, and the evidence would be sufficient as a matter of constitutional due process because the statutory elements of malice murder would 

be satisfied, notwithstanding that the defendant may have a separate claim 

based on a fatal variance theory.
40

had previously been vacated as a matter of law, and potentially on 

the rape conviction pertaining to Blackwell. For these reasons, I respectfully dissent in part to the Court’s opinion.15

1. Count 1: Malice Murder

Relying on how the State alleged malice murder in the indictment, McCullum contends that the evidence was insufficient because the State failed to produce any evidence that McCullum supplied or was in any way involved in Blackwell’s ingestion of the cocaine.16 The State argues that the other-acts evidence of McCullum’s 

attacks of women showed that McCullum would beat, restrain, or 

incapacitate his victims,17 and since McCullum was seen with Blackwell two days before she was found, the jury could have inferred that 

he used cocaine to incapacitate Blackwell. My review of the record 

shows that the only evidence presented at trial on this issue was Dr. 

15 I fully concur in the remainder of the Court’s opinion. 

16 The Court has rejected this argument, describing it as a “novel theory 

of sufficiency.” (Maj. Op. at 19 n.7.) However, as explained below, this type of 

sufficiency argument relying on the allegations of the indictment has been considered by our Court and federal appellate courts in multiple cases.

17 It does not appear from our record that McCullum drugged any of the 

other women he attacked.
41

Gowitt’s testimony that he did not have “any idea how the cocaine 

got in [Blackwell’s] system,” speculating that it could have been either voluntary or involuntary and that there was simply no way for 

him to know.18 And I would reject the State’s argument that a jury 

is authorized to infer from the other-acts evidence that McCullum 

used cocaine to incapacitate Blackwell, because that evidence, 

though bearing many similarities to Blackwell’s attack, did not involve drugging the victims. Thus, McCullum is correct that the evidence at trial did not show that he caused Blackwell’s cocaine intoxication. 

Although the Court asserts that such an approach to McCullum’s sufficiency claim is “novel” and an extension of Jackson, we 

have held in cases before and after Mussachio was issued that when 

the State elects to charge a crime under a particular theory of prosecution, “we cannot affirm a conviction based upon a legal theory of 

18 I note that even if there was evidence that Blackwell’s cocaine intoxication was involuntary, which would permit the jury to infer that she was murdered by involuntary or forced intoxication, that still would not authorize the 

jury to infer that McCullum was the person who intoxicated her, absent some 

evidence showing that it was him.
42

the crime with which the defendant was never charged.” Walker v. 

State, 296 Ga. 161, 167 n.12 (1) (c) (766 SE2d 28) (2014) (evidence 

not sufficient to support felony murder of child predicated on murder 

of mother when the State theorized that the murder of the mother 

caused the death of the child by being unable to come to the aid of 

the child when the defendant asphyxiated the child with his hand); 

see Harrington v. State, 300 Ga. 574, 577-78 (2) (a) (797 SE2d 107) 

(2017) (where indictment alleged that defendant committed armed 

robbery by “unlawfully taking a cell phone from the immediate presence of [the victim], by use of a handgun,” the State was required to 

prove beyond a reasonable doubt that defendant used the handgun 

to take the cell phone prior to or contemporaneously with the taking 

(punctuation omitted)).19 Because the State presented no evidence 

19 The Court distinguishes Harrington and Walker as sufficiency decisions that have looked to the indictment, “only to determine which crime was 

charged.” (Maj. Op. at 17.) While it is true that these cases looked at the indictment to determine which crime was charged, the analysis did not end there. 

Both cases looked at the specific allegations of the indictment and the manner 

in which essential elements of the crime were charged in order to evaluate sufficiency of the evidence. See Harrington, 300 Ga. at 577 (concluding that State 

failed to support that cell phone was taken from the "immediate presence" of 

the victim "by the use of a handgun" as alleged in the indictment); Walker, 296 
43

linking McCullum to cocaine whatsoever, much less to the cocaine 

in Blackwell’s system, under this line of cases, the evidence is legally 

insufficient as a matter of constitutional due process to sustain 

McCullum’s conviction on Count 1, the malice murder of Blackwell, 

as charged in the indictment.

However, in other cases, this Court has reviewed similar challenges, including a challenge to the sufficiency of the evidence, as in 

actuality a claim that the evidence at trial fatally varied from the 

allegations of the indictment. For example, in Lebis v. State, 302 Ga. 

750, 759-60 (II) (B) (808 SE2d 724) (2017), we noted that “Lebis 

raised sufficiency of the evidence rather than a ‘fatal variance’ between the language of the indictment, which charged joint possession, and the proof at trial,” yet the Court went on to analyze the 

claim as a fatal variance issue. Also, in Mathews v. State, 314 Ga. 

360, 365 (2) (877 SE2d 188) (2022), we summarized the appellant’s 

Ga. at 166 (holding that State failed to prove felony murder predicated on the 

felony alleged in the indictment even though the evidence supported a felonious assault on the victim that caused his death).
44

arguments “that the trial court erred in allowing the prosecution to 

deviate from the allegation in the indictment and offer proof that he 

committed the crimes in an uncharged manner” and “that the evidence at trial and the court’s instructions to the jury on party to a 

crime allowed him to be convicted for merely helping co-defendant 

Jackson, while the indictment specifically charged him with directly 

committing the crimes,” and then stated “[w]e interpret [his] argument as raising [a] fatal variance [claim].” Id; see Brown v. State, 

307 Ga. 24, 27-28 (1) (834 SE2d 40) (2019) (summarizing test for 

fatal variance claim). 

One difference between a fatal variance claim and a claim for 

insufficiency of the evidence is that a fatal variance claim is an error 

that must be asserted at trial and ruled upon to be preserved for 

appellate review. See Hughes v. State, 310 Ga. 453, 456 (2) n.5 (851 

SE2d 580) (2020); Eberhart v. State, 307 Ga. 254, 262 n.7 (2) (a) (835 

SE2d 192) (2019); Davis v. State, 301 Ga. 397, 402 (4) (801 SE2d 897) 

(2017). Compare Jeffries v. State, 272 Ga. 510, 512 (5) (530 SE2d 

714) (2000) (citing OCGA § 5-6-36 (a) to support that the defendant 
45

“is simply incorrect that the failure to move for a directed verdict at 

the close of the evidence precludes [the defendant] from contending 

on appellate review that the evidence is insufficient to support the 

verdict”). Here, after the State rested, McCullum “move[d] for a directed verdict of acquittal as to Counts 1 through 4. That is the Malice Murder, Count 1, of Monica Blackwell did cause the death by 

malice aforethought by cocaine intoxication and by dumping her 

without medical assistance. . . .” In making that argument, he never 

explicitly raised or argued the term “fatal variance,” but his argument included, inter alia, that “[w]e have no evidence or testimony 

that Mr. McCullum in any way caused [Blackwell] or forced her, directed her to ingest cocaine. That was the cause of death.”20 The trial 

court ruled “I believe there is sufficient evidence to go to the jury. I 

would deny the motion to dismiss at this time, or a motion for direct 

verdict.”

Thus, if I were to analyze this claim as one asserting a fatal 

20 McCullum’s primary argument for a directed verdict was that “there 

is essentially no evidence that he caused the death and raped her in Count 1 

through 4.”
46

variance, the procedural posture of this claim would require consideration of whether the trial court erred in denying the motion for a 

directed verdict of acquittal on the malice murder count, even 

though McCullum did not enumerate as error the denial of his motion for a directed verdict. See Adams v. State, 288 Ga. 695, 699 (2) 

(707 SE2d 359) (2011) (rejecting claim that trial court erred in denying motion for directed verdict asserting that the State failed to 

prove that the offenses occurred within the dates alleged in the indictment); Felder v. State, 270 Ga. 641, 643 (2) (514 SE2d 416) (1999) 

(holding that trial court correctly denied motion for a directed verdict of acquittal when “the evidence is sufficient to show that the 

cigarettes were taken from the person of the victim as alleged in the 

indictment”). As explained above, the State failed to produce any evidence supporting that McCullum supplied or otherwise caused 

Blackwell’s cocaine intoxication. Accordingly, I would conclude that 

the trial court erred in denying the motion for a directed verdict. See 

Ellington v. State, 314 Ga. 335, 339 (2) (877 SE2d 221) (2022) (“The 

standard of review for the denial of a motion for a directed verdict of 
47

acquittal is the same as for determining the sufficiency of the evidence to support the conviction.”) (citation omitted); Fitts v. State, 

312 Ga. 134, 141 (3) (859 SE2d 79) (2021) (explaining that “‘[t]he 

standard of review for the denial of a motion for a directed verdict of 

acquittal is the same as for determining the sufficiency of the evidence to support a conviction’”) (citation omitted).

Because McCullum moved for a directed verdict of acquittal on 

the malice murder charge on the same grounds that he now asserts 

on appeal and, as a result, under either line of cases, the malice murder conviction must be reversed, I would conclude that it is unnecessary for this Court to determine whether his claim should be analyzed as a challenge to the sufficiency of the evidence as a matter of 

constitutional due process or whether his claim is in actuality that 

the evidence at trial fatally varied from the allegation that McCullum caused Blackwell’s death by cocaine intoxication.

This approach is preferable for several reasons. First, it recognizes that although Mussachio referenced the familiar Jackson test 
48

relying on the elements of the crime, it also went further and explained what minimum due process requires in this context—“that 

a defendant receives . . . a meaningful opportunity to defend against 

the charge against him.” Musacchio, 577 U.S. at 243 (II). It is unclear how this language is applied because Mussachio explicitly left 

open the question of whether the allegations of the indictment factor 

into the analysis, but it is difficult to discern how to evaluate “a 

meaningful opportunity to defend against the charge” without some 

reference to the allegations of the indictment.

Second, although this issue remains an open question that the 

United States Supreme Court has recognized but not decided, this 

Court has gone ahead and decided it. Yet, federal appellate courts 

who have considered the issue have declined to decide it, indicating 

that the answer is not as straightforward as the Court thinks it is.21

Instead, in almost every one of those cases, the federal court has 

21 Although not binding on us, the decisions of federal appellate courts 

are persuasive, particularly on matters of federal constitutional law. See Elliott v. State, 305 Ga. 179, 187 (II) (B) (824 SE2d 265) (2019) (“The construction 

of similar federal constitutional provisions, though persuasive authority, is not 

binding on this state’s construction of its own Constitution.”) (cleaned up).
49

assumed without deciding that the allegations of the indictment 

were essential in evaluating sufficiency.22 See United States v. Naushad, 68 F4th 380, 384 (II) (8th Cir. 2023) (recognizing that Musacchio left open the question of whether sufficiency of the evidence 

must be judged by reference to non-statutory elements of the indictment and doubting that sufficiency review includes the non-statutory elements, but concluding that even assuming that the non-statutory element was essential, the government proved its case); 

United States v. Said, 2023 WL 167213, at *4 (V) (A) (1) (5th Cir. 

Jan. 12, 2023) (declining to resolve issue of “whether an erroneously 

heightened indictment obligates the government to prove additional 

elements,” but concluding that assuming that the government was 

required to prove the additional elements alleged, the government 

22 The Tenth Circuit has noted that the question of whether sufficiency 

as a matter of constitutional due process should be evaluated with respect to 

the allegations in the indictment remains open, but in that case, the defendant 

had failed to preserve the error for ordinary appellate review, and the court 

concluded that the defendant failed to show plain error. See United States v. 

Brown, 654 Fed. Appx. 896, 907 (II) (2) (B) (1) (10th Cir. 2016) (noting that 

Musacchio left open the question of whether indictment’s reference to “cruel 

and unusual punishment” required the government to prove that the defendants were convicted inmates but concluding that defendants failed to show 

clear and obvious error under plain error review). 
50

produced sufficient evidence) (citation and punctuation omitted); 

United States v. Bedoy, 827 F3d 495, 509 (II) (B) (1) (5th Cir. 2016) 

(Musacchio leaves open the question of “whether an indictment can 

add an element”; “assuming—without deciding—the Government 

had to prove this additional element,” the evidence was sufficient). 

In addition, my review of decisions of state courts of last resort 

since Musacchio shows that this Court would be the first state supreme court to recognize that Musacchio left open the question of 

whether sufficiency of the evidence at trial must be judged by reference to the manner in which essential elements of the crime are 

charged in the indictment—in this case, causation by cocaine intoxication—and go ahead and decide it.23 

23 One state court of last resort has considered a closely related issue. 

The Texas Criminal Court of Appeals has held that “[i]f a jury instruction includes the elements of the charged crime but incorrectly adds an extra, madeup element, a sufficiency challenge is still assessed against the elements of the 

charged crime, regardless of the source of the extra element.” Ramjattansingh 

v. State, 548 S.W.3d 540, 552 (IV) (2018). In so holding, the Texas court distinguished Musacchio as involving “actual statutory elements” and not “a madeup element” in the indictment. See id. at 546 n.13 (II) (A). Here, all Justices 

agree that causation is an essential element of malice murder although there 

is disagreement on whether the manner in which causation is alleged is part 

of the essential elements of the crime.
51

For these reasons, I conclude that it is unnecessary to decide 

this difficult open question of federal constitutional law. Instead, I 

would rely on the ample authority from our Court in evaluating 

McCullum’s sufficiency argument while finding it unnecessary to decide which line of authority controls and reverse McCullum’s conviction for malice murder.

2. Counts 2 and 3: Felony Murder

Because I would reverse the malice murder conviction, McCullum’s felony murder convictions would no longer stand vacated as a 

matter of law. See Clough v. State, 298 Ga. 594, 597-98 (2) (783 SE2d 

637) (2016); Wallace v. State, 275 Ga. 879, 881 (2) (572 SE2d 579) 

(2002), disapproved on other grounds by Willis v. State, 304 Ga. 686, 

706 (11) (a) n.3 (820 SE2d 640) (2018). Thus, I will also address his 

challenges to the sufficiency of the evidence to support those convictions as well.24

24 In so doing, I note that in addition to arguing that the evidence to 

support these convictions was constitutionally insufficient, McCullum also 

cites OCGA § 24-14-6 and argues that the evidence was wholly circumstantial 

and does not exclude what he characterizes as the reasonable hypothesis that 
52

Count 2 of the indictment alleges that McCullum caused the 

death of Blackwell “in the commission of the offense of rape, a felony,” and Count 3 of the indictment alleges that he caused her death 

“in the commission of the offense of Aggravated Assault with the 

intent to Rape, a felony.” “A person commits the offense of murder, 

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

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

person commits the offense of rape when he has carnal knowledge 

of: . . . [a] female forcibly and against her will.” OCGA § 16-6-1 (a). 

And “[a] person commits the offense of aggravated assault when he 

. . . assaults:25 [w]ith intent . . . to rape.” 

OCGA § 16-5-21 (a) (1). 

Here, for felony murder predicated on rape, the State was required to prove beyond a reasonable doubt that McCullum caused 

McCullum had consensual sex with Blackwell. See OCGA § 24-14-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be 

consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). 

25 An assault consists of the “[a]ttempt[] to commit a violent injury to the 

person of another” or the commission of “an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-

5-20 (a).
53

Blackwell’s death in the commission of raping her and that the rape 

proximately caused Blackwell’s death. See Eubanks v. State, 317 Ga. 

563, 567-78 (2) (894 SE2d 27) (2023); State v. Jackson, 287 Ga. 646, 

660 (6) (697 SE2d 757) (2010). The State was likewise required to 

prove the same elements with respect to the felony murder predicated on aggravated assault with the intent to rape. Id. Proximate 

cause requires “that the death actually happened in a way that was 

a reasonably foreseeable result of the criminal conduct—that is, the 

death must also have been a probable or natural consequence of the 

criminal conduct.” Eubanks, 317 Ga. at 569 (2) (a) (ii) (cleaned up; 

emphasis in original). See also Jackson, 287 Ga. at 652 (2), 654 (3) 

(“Proximate causation imposes liability for the reasonably foreseeable results of criminal . . . conduct if there is no sufficient, independent, and unforeseen intervening cause,” and proximate cause exists 

if the predicate felonious conduct “directly and materially contributed to the happening of a subsequent accruing immediate cause of 

the death,” or if “the homicide was committed within the res gestae 

of the felony and is one of the incidental, probable consequences of 
54

the execution of the design to commit” the predicate felony (citations 

and punctuation omitted)).

Viewed in the light most favorable to the jury’s verdict, the evidence presented at trial was constitutionally sufficient to authorize 

a jury to find beyond a reasonable doubt that McCullum assaulted 

and raped Blackwell and sufficient under Georgia statutory law to 

reject as unreasonable the hypothesis that Blackwell consented to 

having sex with McCullum. That evidence included that McCullum 

was the last person seen with Blackwell before she was found beaten 

up and dumped on the side of the road, half naked, and with his 

sperm in her vagina. See Johnson v. State, 307 Ga. 44, 48 (2) (a) (834 

SE2d 83) (2019) (circumstantial evidence, including that defendant 

was the last person seen with the victim before his death, was sufficient to support murder conviction); Lewis v. State, 306 Ga. 455, 457, 

459 (1) (a) (831 SE2d 771) (2019) (evidence which included that victim’s body was discovered partially undressed, had defensive 

wounds, and had defendant’s sperm in her vagina was sufficient to 

sustain his convictions for murder and rape, and authorized jury to 
55

reject his alternate hypothesis as unreasonable); Daniels v. State, 

298 Ga. 120, 123 (1) (779 SE2d 640) (2015) (evidence including the 

state in which victim’s body was discovered, DNA evidence linking 

defendant to victim, and evidence of prior similarly violent sexual 

conduct by defendant “were sufficient to support the jury’s conclusion that [defendant] assaulted, raped, and murdered [victim]”); 

Walker v. State, 282 Ga. 406, 408 (1) (651 SE2d 12) (2007) (evidence, 

which included the state in which victim’s body was discovered and 

DNA evidence linking defendant to victim, was sufficient to support 

jury’s conclusion that defendant raped and murdered victim, and 

authorized jury to reject defendant’s alternate hypotheses). 

Moreover, the evidence was sufficient to authorize the jury to 

find beyond a reasonable doubt that the aggravated assault and/or 

rape proximately caused Blackwell’s death. Because there is nothing 

improbable or unnatural about a death occurring as the result of a 

violent beating and sexual assault that ended with the victim being 

left for dead, Blackwell’s death was a reasonably foreseeable result 

of the aggravated assault and rape. To that end, Dr. Gowitt testified 
56

that any beating and rape sustained by Blackwell “absolutely” contributed to her death. That Dr. Gowitt listed Blackwell’s ultimate 

cause of death as acute cocaine intoxication does not change the conclusion that McCullum’s assault and rape of Blackwell proximately 

caused her death because evidence was presented that showed that 

the beating and rape by McCullum, along with his dumping of her 

on the roadside without medical assistance, materially contributed 

to and accelerated her death, which is sufficient to show that McCullum’s felonious conduct caused her death. See Stribling v. State, 304 

Ga. 250, 253-54 (1) (818 SE2d 563) (2018); see also Virger v. State, 

305 Ga. 281, 289 (3) (824 SE2d 346) (2019) (evidence sufficient for 

jury to find that by allowing victim to suffer rather than promptly 

seeking medical aid, defendant proximately caused victim’s death). 

In sum, I would conclude that the evidence presented at trial 

was constitutionally sufficient to authorize the jury to find beyond a 

reasonable doubt that McCullum caused Blackwell’s death in the 

commission of his assault and rape of her and was therefore guilty 

of Count 2, felony murder predicated on rape, and Count 3, felony 
57

murder predicated on aggravated assault with intent to rape. Because, as discussed above, Counts 2 and 3 would no longer be vacated by operation of law and the evidence would be constitutionally 

sufficient to support those charges, I would vacate that portion of 

the trial court’s final disposition that had vacated Counts 2 and 3 as 

a matter of law and remand this case for sentencing in accordance 

with the law. In so doing, I would remind the trial court that although McCullum was found guilty on both counts of felony murder, 

one predicated on his rape of Blackwell and the other on his aggravated assault of her, he cannot be sentenced on both those counts 

because there was only one victim. See Noel v. State, 297 Ga. 698, 

700 (2) (777 SE2d 449) (2015) (“[A] defendant found guilty of the 

felony murder of the same victim through the commission of more 

than one felony may only be sentenced on one felony murder charge 

and the remaining felony murder charges stand vacated by operation of law.”); Warren v. State, 283 Ga. 42, 44 (4) n.2 (656 SE2d 803) 

(2008) (same). Moreover, “[i]n cases like this one, where a defendant 

is found guilty on multiple counts of felony murder against the same 
58

victim, the decision as to which of the felony murder verdicts should 

be deemed vacated—a decision that may affect which other verdicts 

merge and thus what other sentences may be imposed–is left to the 

discretion of the trial court.” Hinton v. State, 304 Ga. 605, 608 (3) 

(820 SE2d 712) (2018) (citation and punctuation omitted); see also 

Cowart v. State, 294 Ga. 333, 336 (2) (751 SE2d 399) (2013). 

3. Count 4: Rape of Blackwell.

As the above discussion makes clear, the evidence presented at 

trial authorized the jury to find McCullum guilty beyond a reasonable doubt of raping Blackwell. Nonetheless, the trial court would 

have the discretion to decide which felony murder verdict it would 

enter a conviction and sentence upon and which one would be vacated by operation of law, and that decision “may affect which other 

verdicts merge and thus what other sentences may be imposed.”

Hinton, 304 Ga. at 608 (3) (citation and punctuation omitted). 

[I]f, in exercising that discretion, the trial court elects to 

sentence the defendant on a felony murder count predicated on one crime, then it must also sentence him on any 

remaining crime that served as a predicate to a vacated 

felony murder count when the other crime does not merge 
59

with the felony murder conviction on which a sentence 

was entered. 

Id. at 608-09 (3); see also Davis v. State, 301 Ga. 397, 404 (5) n.7 (801 

SE2d 897) (2017); Stewart v. State, 299 Ga. 622, 627-28 (3) (791 

SE2d 61) (2016); Leeks v. State, 296 Ga. 515, 523-24 (7) (769 SE2d 

296) (2015). Cf. Steele v. State, 317 Ga. 411, 414 (2) (893 SE2d 721) 

(2023) (“When the only murder conviction is for felony murder and 

a defendant is convicted of both felony murder and the predicate felony of the felony murder charge, the conviction for the predicate felony merges into the felony murder conviction.” (citation and punctuation omitted)). See also OCGA § 16-1-7 (a) (1) (“When the same 

conduct of an accused may establish the commission of more than 

one crime,” the accused may not “be convicted of more than one 

crime if . . . [o]ne crime is included in the other[.]”). 

Because the trial court would have the discretion to decide 

whether to enter a conviction and sentence on Count 2 (felony murder predicated on rape) or on Count 3 (felony murder predicated on 

aggravated assault with intent to rape), and because that decision 
60

will impact the merger analysis on Count 4 (rape), I would also vacate the conviction and sentence on Count 4 for the trial court to 

consider on remand the proper final disposition of Count 4 in light 

of its sentencing decision on the felony murder counts.26 See Parrott 

v. State, 312 Ga. 580, 583 n.4 (3) (864 SE2d 80) (2021) (explaining 

that in similar cases, we have declined to establish “a policy of appellate sentencing” and that we instead remand them for trial courts 

“to exercise [their] discretion in resentencing” (citation and punctuation omitted)); Noel, 297 Ga. at 700 (2) (remanding for resentencing, and reminding the trial court that “on resentencing, a legal conviction may be entered on only one felony murder verdict, [that] the 

underlying felony charged in that count will merge into the felony 

murder conviction as a matter of law” depending on which felony 

murder conviction was entered, that “the remaining felony murder 

26 The law is clear that if the trial court were to elect to enter a conviction 

and sentence on felony murder predicated on rape, the rape conviction would 

merge. However, if the trial court were to elect to sentence McCullum on felony 

murder based on aggravated assault with the intent to rape, the trial court 

would need to consider whether the rape count would merge into that felony 

murder conviction.
61

verdicts will stand vacated by operation of law, and [that] a determination whether the remaining non-murder felonies merge as a 

matter of fact into the felony murder conviction will need to be 

made”). 

In summary, therefore, I would reverse McCullum’s malice 

murder conviction (Count 1), and, as a result, vacate the trial court’s 

judgment on Counts 2, 3, and 4, for which the evidence was constitutionally sufficient to support convictions, and remand the case for 

resentencing on those counts.

I am authorized to state that Presiding Justice Peterson and 

Justice Bethel join in this dissent.