In the Supreme Court of Georgia

Decided: October 5, 2021

S21A0970. HUGHS v. THE STATE.

 COLVIN, Justice.

Following a jury trial, Jerome Edward Hughs was convicted of 

felony murder in connection with the death of Kaidence Alexander, 

an 18-month old child.1 Hughs claims that the evidence presented 

at his trial was insufficient to support his conviction, that he was 

 1 On December 10, 2013, a Richmond County grand jury indicted Hughs

for malice murder and felony murder predicated on cruelty to children in the 

second degree. At a jury trial held from June 22 through 25, 2015, Hughs was 

acquitted of malice murder and found guilty of felony murder; he was 

subsequently sentenced to life in prison without the possibility of parole. 

Hughs filed a motion for new trial on July 15, 2015. After a hearing, the trial 

court denied the motion on November 29, 2016, and Hughs appealed to this 

Court. However, prior to the docketing of the appeal, trial counsel withdrew 

from the case, and a new attorney was appointed to represent Hughs. New 

counsel then filed a motion to remand Hughs’s case in order to raise claims of 

ineffective assistance of trial counsel, and this Court granted the motion. 

Upon remand, new counsel filed another motion for new trial on July 11, 

2019, raising claims of ineffective assistance of counsel. New counsel amended 

the motion on August 15, August 26, and August 31, 2019. After a series of 

hearings, the trial court denied the motion as amended on February 9, 2021. 

Hughs timely filed a notice of appeal. The appeal was docketed to the August

2021 term of this Court and submitted for a decision on the briefs. 
2

denied constitutionally effective assistance of counsel, and that the 

trial court erred when it gave a so-called “Allen charge” during jury 

deliberations. For the reasons set forth below, we affirm.

1. Hughs contends that the evidence presented at trial was 

constitutionally insufficient to sustain his murder conviction. He

also argues that the evidence of his guilt was insufficient as a matter 

of Georgia statutory law, see OCGA § 24-14-6, because the State’s 

case was based solely on circumstantial evidence and did not exclude 

the reasonable hypotheses that someone or something else caused

Kaidence’s death. We address each claim in turn.

(a) Hughs claims that the evidence was legally insufficient to 

support his conviction for felony murder predicated on cruelty to 

children in the second degree because the State failed to establish 

every element of the crime charged. We disagree. When evaluating

the sufficiency of 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, any rational trier of fact 

could have found the essential elements of the crime beyond a 
3

reasonable doubt.” (Citation and emphasis omitted.) Jackson v. 

Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) 

(1979). “This Court does not reweigh evidence or resolve conflicts in 

testimony; instead, evidence is reviewed in a light most favorable to 

the verdict, with deference to the jury’s assessment of the weight 

and credibility of the evidence.” (Citation and punctuation omitted.) 

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

Viewed in this light, the evidence presented at trial showed 

that, in the summer of 2012, Jasmine Fobb surrendered 

guardianship of her two small children (Kaidence and her sister) to 

Danielle and Jerome Hughs, Fobb’s sister and brother-in-law.2 In 

the months leading up to Kaidence’s death, Fobb and the children’s 

biological father, Patrick Alexander, remained in contact with their 

children. On February 14, 2013, Fobb and Alexander traveled to 

Augusta to see their children, and they stayed with the Hughs 

family during their visit. 

 2 The Hughs had eight children of their own, ranging in age from one to 

fourteen years.
4

On the afternoon of February 20, 2013, emergency services 

were dispatched to the Hughs’s home in Richmond County in 

response to a call concerning an unresponsive 18-month-old child. 

Emergency personnel entered the home and found Kaidence lying 

motionless and supine on an ottoman. While there were no obvious 

outward signs of trauma or injury, the child was not breathing and 

had no pulse. They placed Kaidence in an ambulance, administered 

CPR, and were able to regain a pulse about eight to ten minutes 

before they arrived at the hospital. Kaidence was then intubated, 

placed on mechanical ventilator support, and admitted to the 

pediatric intensive care unit (“PICU”). Upon her initial 

examination, Dr. Remuka Mehta, Kaidence’s treating physician, 

observed fingertip shaped bruises on Kaidence’s chest and reported 

suspected child abuse to child services. 

While in the PICU, Kaidence remained unresponsive and her 

brain function stopped. The child’s brain had swollen so much that 

it could no longer be contained by her skull, and CT scans showed 

chronic subdural bleeding and fluid collected in the area around the 
5

bleed. Based upon this, Dr. Mehta concluded that an acute illness 

or injury had occurred shortly before Kaidence’s arrival at the 

hospital. Dr. Mehta also noted that Kaidence had numerous 

fractured ribs in various stages of healing, and ruled out CPR as a 

cause based upon the posterior location of the rib fractures. 

Kaidence was officially pronounced dead on February 27, 2013. 

Dr. Lora Darrisaw performed the autopsy and located 14 rib 

fractures in different stages of healing, ranging from one to 21 days 

old. Kaidence also had a new injury to the tip of her tongue that had 

necrotized3 due to insufficient oxygen and blood flow. Dr. Darrisaw 

noted that the child had bitten her tongue so hard it nearly severed

the tip from the rest of the organ and opined that the tongue injury 

was caused by an intentional and forceful manual compression of 

Kaidence’s mouth. Dr. Darrisaw further noted several impact sites 

to the child’s skull, which caused hemorrhaging and swelling in the 

brain. Dr. Darrisaw opined that the cause and manner of Kaidence’s 

 3 Dr. Darrisaw testified at trial that necrotic tissue is dead or dying 

tissue.
6

death was homicide by manual asphyxia with inflicted head trauma 

causing cerebral edema. 

Officers spoke with Fobb and Alexander, who were in the home 

on the date of the incident.4 Officers learned that, on the morning 

of February 20, Kaidence had been acting fussy and complaining 

about trouble with her ear. Alexander was watching television on 

the sofa in the living room, and Fobb was in the kitchen, preparing 

some juice for the children, when Hughs came into the kitchen and 

asked why Kaidence was upset. Fobb stated that she did not know, 

explained that the child was probably just being whiny, and noted 

that she had just checked Kaidence’s diaper. Hughs then turned to 

Kaidence and said, “Girl, come on,” and Kaidence followed Hughs 

into his bedroom. 

Approximately two minutes later, Hughs summoned Fobb into 

the bedroom. When Fobb entered the room, Kaidence was lying at 

the foot of the bed, seemingly asleep. Hughs showed Fobb that the 

 4 Seven of the Hughs’s eight children were also at the house on February 

20. However, none of their statements were admitted at trial as defense 

counsel successfully challenged the admissibility of their statements pre-trial.
7

child had a dirty diaper and posited that that was why she had been 

fussy. Hughs then lifted the child from the bed and handed her to 

Fobb, who noticed that the child felt heavy. Fobb attempted to get 

a response from the child by tapping her leg, suctioning mucus from 

her nose, and splashing her with water, but Kaidence remained 

unresponsive. Upon noticing that the child was not breathing, 

Alexander called 911, and he and Fobb moved the child to the 

ottoman in the living room to provide CPR until emergency services 

arrived.

Officers also interviewed Hughs about the day of the incident. 

He denied harming the child in any way and accused Fobb and 

Alexander of abusing Kaidence on prior occasions. Still, Hughs 

admitted to disciplining Kaidence’s older sister with a belt. Hughs 

told officers that, on the day of the incident, he was awakened by the 

sound of Kaidence crying. When he went to see what the issue was, 

he found Fobb holding the crying child. He reprimanded Fobb for 

constantly picking up Kaidence and told Fobb to put Kaidence down. 

Thereafter, Hughs stated that Kaidence followed him into his 
8

bedroom, at which point he discovered that the child was wearing a 

dirty diaper. He admitted to being alone with the child before 

summoning Fobb into the room to show her Kaidence’s diaper. 

Hughs told officers that, when Fobb entered the bedroom, Kaidence

was already lying on Hughs’s bed, seemingly asleep, and that is 

when Fobb noticed that the child was unresponsive. 

Although the evidence did not show exactly how Kaidence’s 

fatal injuries were inflicted, Hughs admitted that he escorted a 

walking, talking Kaidence into his bedroom and that he was alone 

with her prior to the child being found limp and unresponsive. 

Moreover, the medical experts testified at trial to seeing numerous 

signs of abuse – i.e., rib fractures in various stages of healing and 

fingerprint marks to Kaidence’s chest – and that Kaidence’s head 

and mouth injuries were inflicted a short time prior to her arrival at 

the emergency room for treatment. Based on the foregoing, a 

rational jury could conclude that Hughs, acting with criminal 

negligence, caused Kaidence, an 18-month-old child, cruel or 

excessive physical or mental pain that led to her death. See OCGA 
9

§ 16-5-1 (c) (felony murder occurs when a person “causes the death 

of another human being irrespective of malice” during the 

commission of a felony); OCGA § 16-5-70 (c) (“Any person commits 

the offense of cruelty to children in the second degree when such 

person with criminal negligence causes a child under the age of 18 

cruel or excessive physical or mental pain.”). Accordingly, the jury 

was authorized to find Hughs guilty beyond a reasonable doubt of 

felony murder predicated on cruelty to children in the second degree. 

See Jackson, 443 U. S. at 319.

(b) Hughs also claims that, as a matter of Georgia statutory 

law, the evidence presented at trial was insufficient to sustain his 

conviction because the evidence of his guilt was entirely 

circumstantial and did not exclude other, reasonable hypotheses. 

Under OCGA § 24-14-6,

in order to convict [Hughs] of the crimes based solely upon 

circumstantial evidence, the proven facts had to be 

consistent with the hypothesis of [his] guilt and exclude 

every reasonable hypothesis save that of [his] guilt. Not 

every hypothesis is reasonable, and the evidence does not 

have to exclude every conceivable inference or hypothesis; 

it need rule out only those that are reasonable.
10

(Citation and punctuation omitted.) Cochran v. State, 305 Ga. 827, 

829 (1) (828 SE2d 338) (2019). Whether the evidence excludes every 

other reasonable hypothesis is a question for the jury, see Collett v. 

State, 305 Ga. 853, 855-856 (1) (828 SE2d 362) (2019), and that 

finding will not be disturbed on appeal unless the verdict is 

insupportable as a matter of law, see Akhimie v. State, 297 Ga. 801, 

804 (1) (777 SE2d 683) (2015). 

Hughs claims that the evidence did not exclude the reasonable 

hypotheses that someone else in the home committed an act upon 

Kaidence that caused her to stop breathing or the possibility that 

Kaidence’s death was the result of unexplained or natural causes. 

Viewing the evidence as a whole, and as discussed at length above,

the evidence was sufficient to enable the jury to reject as 

unreasonable the hypotheses that someone else caused Kaidence’s 

injuries and that Kaidence died as a result of unexplained or natural 

causes. See Long v. State, 309 Ga. 721, 726-727 (1) (b) (848 SE2d 

91) (2020) (in context of claim raised pursuant to OCGA § 24-14-6,
11

“[i]t was for the jury to determine the credibility of the witnesses 

and to resolve any conflicts or inconsistencies in the evidence” 

(citation and punctuation omitted)); Debelbot v. State, 305 Ga. 534 

(1) (826 SE2d 129) (2019) (circumstantial evidence was sufficient to 

support malice murder convictions where evidence showed that the 

child was healthy when she left the hospital following her birth, her 

injuries were non-accidental, and she was in the sole care of the 

defendants when her injuries occurred).

2. Hughs alleges that he received ineffective assistance of 

trial counsel based upon counsel’s failure to retain and call an expert 

witness to challenge the medical testimony presented by the State. 

In order to establish constitutionally ineffective assistance, a 

defendant must show that his counsel’s performance was 

professionally deficient and that, but for such deficient performance, 

there is a reasonable probability that the result of the trial would 

have been different. See Strickland v. Washington, 466 U. S. 668 

(III) (104 SCt 2052, 80 LE2d 674) (1984). If the defendant fails to 

satisfy either prong of the Strickland test, this Court is not required 
12

to examine the other. See Green v. State, 291 Ga. 579 (2) (731 SE2d 

359) (2012). 

Trial counsel testified at the hearing on Hughs’s amended 

motion for new trial that he received and reviewed all of the 

discovery material, which included hours of taped interviews, 

Kaidence’s medical records (including records from prior doctor 

visits), and the autopsy report and photos. Counsel also interviewed

Dr. Darrisaw prior to trial and attempted to interview Dr. Mehta 

but was unable to reach her. Counsel explained the defense theory 

as follows:

The defense was that we had a situation where Mr. Hughs 

would have been accused of just walking back into a room 

with a young child and basically committing murder, 

whether it was malice murder or felony murder. And so, 

what we wanted to show was that there were different 

problems and issues with the State’s case dealing number 

one with why would he do that? That was obvious. And 

then, secondly also with different issues surrounding the 

child herself that had come up before. Some health issues 

to some extent. We weren’t going to go extensively into 

those, but we basically were trying to establish that this 

was not a murder case. The case was only going to deal 

with, he probably was alone with the child maybe two 

minutes, if that long. And so, what we wanted to do was, 

kind of, establish that in that time, period of time, he 
13

would not have been able to do what they were alleging 

that he did with approximately ten people in the house.

Counsel testified that his strategy at trial was to elicit 

testimony on cross-examination from the State’s medical experts 

and the emergency personnel who responded to the scene that 

Kaidence’s injuries were inconsistent with abuse. Specifically, trial 

counsel sought to establish, through cross-examination, that a 

number of pre-existing health issues could have caused Kaidence’s 

older injuries and that her newer injuries were consistent with the 

life-saving measures attempted on February 20.5 In preparation for 

his cross-examination of these witnesses, counsel consulted with a 

nurse practitioner who “help[ed] with medical records and also 

potentially cause of death.” Trial counsel testified that, based upon 

the defense’s theory of the case, calling a defense expert at trial could 

have been problematic because, while an expert might have helped 

to “muddy the waters,” he was concerned that a competing expert 

would have to make concessions that directly contradicted the 

 5 The record shows that trial counsel implemented this strategy at trial.
14

defense’s theory of the case. 

Hughs also called Dr. Ronald Wright, a forensic pathologist, at 

the motion for new trial hearing. Dr. Wright opined that Kaidence’s 

death was the result of an epileptic seizure. However, on crossexamination, Dr. Wright conceded that, prior to her death, Kaidence

showed none of the signs that a patient suffering from a seizure 

would have normally displayed, such as shaking, making “gurgly”

sounds, and rhythmic limb movements. He further conceded that

tongue bites during seizures were generally far more minor than the 

injury seen on Kaidence’s tongue, that the manner of death in this 

case could still be a homicide even if it arose out of a seizure, that 

Kaidence’s rib injuries were caused by abuse, and that Kaidence was 

“an abused child.”

Hughs argues that trial counsel’s decision not to retain or 

present testimony from a competing medical expert was deficient 

performance. However, “[t]he decision whether to call an expert 

witness is a matter of trial strategy within the broad range of 

professional conduct afforded trial attorneys.” Davis v. State, 290 
15

Ga. 584, 586 (2) (a) (723 SE2d 431) (2012). “A court considering a 

claim of ineffective assistance must apply a ‘strong presumption’ 

that counsel’s representation was within the ‘wide range’ of 

reasonable professional assistance.” (Citation omitted.) Harrington 

v. Richter, 562 U. S. 86, 104 (IV) (131 SCt 770, 178 LE2d 624) (2011). 

“Even under de novo review, the standard for judging counsel’s 

representation is a most deferential one. . . . The question is whether 

an attorney’s representation amounted to incompetence under 

‘prevailing professional norms,’ not whether it deviated from best 

practices or most common custom.” Id. at 105 (quoting Strickland, 

466 U. S. at 690); see also Crouch v. State, 305 Ga. 391, 400 (3) (825 

SE2d 199) (2019) (“[T]rial counsel’s performance is judged according 

to an objective standard of reasonableness, considering all the 

circumstances from counsel’s perspective at the time of the 

challenged conduct, and in the light of prevailing professional 

norms.”).6 Therefore, “a tactical decision will not form the basis for 

 6 Though the trial court, in denying the motion for new trial, determined 

that trial counsel was not deficient for other reasons, in reviewing that 
16

an ineffective assistance of counsel claim unless it was so patently 

unreasonable that no competent attorney would have chosen it.” 

(Citation and punctuation omitted.) Brown v. State, 288 Ga. 902, 909

(5) (708 SE2d 294) (2011).

Here, the record shows that counsel thoroughly investigated 

and prepared for the medical evidence in this case. The record 

further shows that, based upon this investigation, counsel made a 

reasonable strategic decision to attack the State’s medical evidence 

through a thorough and sifting cross-examination of the State’s 

witnesses, rather than to present the testimony of a competing 

medical expert who would have conceded important factual issues 

harmful to the defense’s theory of the case. Considering all of the 

circumstances from counsel’s perspective, and in the light of 

prevailing professional norms, we conclude that Hughs has failed to 

show that trial counsel’s tactical decision was so unreasonable that 

no competent attorney would have chosen it. See Guzman-Perez v. 

 

decision, “we independently apply the legal principles to the facts.” (Citation 

and punctuation omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) 

(2012).
17

State, 310 Ga. 573 (2) (853 SE2d 76) (2020) (no deficient performance 

where counsel made a strategic decision to elicit medical evidence 

through a thorough cross-examination of the State’s expert rather 

than retain a competing defense expert). Consequently, Hughs has 

failed to carry his burden under Strickland, and the trial court did 

not err in denying his motion for new trial.

3. Finally, Hughs claims that the trial court abused its 

discretion by giving the jury a modified “Allen charge”7 during 

deliberations. The record shows that the jury began its deliberations 

on June 24, 2015, at 3:45 p.m. and that the jurors were sent home 

at 6:00 p.m. that evening after requesting to be released for the 

night. The jury returned at 10:00 a.m. the next morning and 

continued deliberating. That morning, the jury was allowed to 

review a portion of Hughs’s video-recorded statement in the 

courtroom. Then, at 11:35 a.m., the jury foreman sent a note to the 

trial court stating, “Judge, we have no way of coming to an 

 7 See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896).
18

agreement. At this time we are 11 to 1 and the one person does not 

want to have any further discussions.” The trial court then

discussed the option of giving an Allen charge with the parties. 

Defense counsel objected, arguing that the trial court “should just 

inquire would any more deliberation help them before actually 

giving that particular Allen charge.” The trial court disagreed and 

gave the Georgia pattern modified Allen charge. See Ga. Suggested 

Pattern Instructions, Vol. II: Criminal Cases § 1.70.70 (4th ed. 2007) 

(Jury (Hung)).8 The jury returned to deliberate at 11:45 a.m. and 

arrived at a verdict at 1:05 p.m. 

Hughs argues that the modified Allen charge was unduly 

coercive, not because it was legally inaccurate, but because the jury 

had not spent enough time deliberating prior to the trial court giving 

the charge. “The decision of whether to give an Allen charge is 

within the discretion of the trial court,” Mayfield v. State, 276 Ga. 

324, 330 (2) (b) (578 SE2d 438) (2003), and a trial court’s instruction 

 8 The instruction in this case was the new pattern instruction that did 

not include the “must be decided language” that this Court previously 

disapproved in Birchette v. State, 278 Ga. 1 (596 SE2d 162) (2004).
19

is not “coercive simply because [the instruction] compelled the jury 

to continue deliberating after it reported a deadlock,” Porras v. 

State, 295 Ga. 412, 420 (3) (761 SE2d 6) (2014). Instead, “[t]he issue 

in reviewing (an Allen) charge is whether the instruction is coercive 

so as to cause a juror to abandon an honest conviction for reasons 

other than those based upon the trial or the arguments of other 

jurors.” Lowery v. State, 282 Ga. 68, 71 (4) (a) (646 SE2d 67) (2007).

Here, the modified Allen charge read by the trial court was an 

accurate statement of the law and not coercive. See Smith v. State, 

302 Ga. 717, 722 (2) (808 SE2d 661) (2017) (approving of the pattern 

modified Allen charge as “fair and accurate”). Still, Hughs argues 

that the amount of time the jury deliberated before and after the 

modified Allen charge was given is enough to demonstrate coercion. 

While “[c]ontextual factors, like timing, may play a role in 

determining coerciveness where there is a possibility that the charge 

could be coercive . . . , the length of deliberations alone cannot render 

a non-coercive charge coercive.” (Citation and punctuation omitted.) 

Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305) (2012). Because 
20

Hughs has not shown that the modified Allen charge was even 

potentially coercive, he cannot show that the trial court abused its 

discretion by giving the Allen charge during jury deliberations. See 

id.

Judgment affirmed. All the Justices concur.