Appellee Maria Owens was tried and convicted in regard to the death of an eleven-month-old infant Jaylen Kelly.1 The State contends the trial court erred when it failed to sentence appellee on the convictions for felony murder, but rather sentenced her on the conviction for the lesser included offense of involuntary manslaughter OCGA § 16-5-3 a. Because the jury returned mutually exclusive verdicts in this case, the judgment of conviction for involuntary manslaughter is reversed.
1. Viewed in a light most favorable to the jury’s verdicts of guilt, the evidence at trial showed the victim’s parents Danielle and Andre Kelly left the victim and his three-year-old sister in appellee’s care sometime between 7A.M. and 8 A.M. on the morning of June 1, 2011. The parents testified the victim was in good health and acting normally, including walking2 and playing with his siblings, when they left him with appellee that morning. After she arrived at work around 8:30 A.M., Mrs. Kelly said she sent appellee a text message confirming she would be placing the victim and his sister with a new daycare provider.3 Around midmorning, Mrs. Kelly had a conversation with appellee in which appellee advised Mrs. Kelly that the victim was having trouble breathing. Appellee called 911 and informed emergency personnel that the victim was having trouble breathing. A fireman who responded to the call and was a certified paramedic testified when he asked appellee what was wrong, appellee informed him the child had bronchitis. The fireman said appellee’s explanation did not match the symptoms the child was exhibiting.4 The emergency personnel who responded to the scene made a decision to transport the victim to a hospital in Fayetteville. Eventually, the victim was life flighted to a children’s hospital in Atlanta. The doctor who treated the victim at the children’s hospital testified that, when the victim arrived, he was going into cardiac arrest. Medical personnel were concerned about internal bleeding, but could not stabilize the victim to a point where surgery could be performed safely. Upon being informed that continued resuscitation would result in the victim’s being unable to breathe without a ventilator, the parents elected to cease extraordinary measures and the victim died.
