Different Malice, Different Verdicts: Montgomery v. State and the Coexistence of Malice‑Murder Acquittals with Felony‑Murder Convictions Based on Aggravated Battery

I. Introduction

In Montgomery v. State, S25A1017 (Ga. Dec. 9, 2025), the Supreme Court of Georgia addressed two interrelated doctrinal questions at the intersection of homicide law, jury verdict coherence, and jury instructions:

1. Whether a defendant’s acquittal on malice murder renders repugnant—and thus invalid—his conviction for felony murder predicated on aggravated battery, where both offenses involve a form of “malice.”
2. Whether a pattern jury instruction stating that the State need not prove “malice” for felony murder constitutes plain error when the predicate felony (aggravated battery) itself requires “maliciously” causing bodily harm.

The Court unanimously affirmed Sherrod Montgomery’s conviction and life sentence for felony murder, clarifying and reinforcing two important strands of Georgia criminal doctrine:

• The conceptual separation between the “malice” required for malice murder and the distinct “malice” required for aggravated battery; and
• The demanding standard for setting aside jury instructions on plain‑error review, particularly when those instructions closely track the pattern charges and, viewed as a whole, correctly state the law.

Against the backdrop of recent Georgia and United States Supreme Court decisions on repugnant verdicts—most notably the McElrath line of cases—Montgomery further narrows the circumstances in which a jury’s mixed verdicts in a multi‑count homicide prosecution will be deemed legally incompatible.

II. Factual and Procedural Background

A. The Incident

On the night of May 20, 2021, a group had gathered at a Carroll County residence owned by Donnie Green, described at trial as a “hangout spot” for drinking, card playing, and socializing. Present were:

• Sherrod Montgomery (the appellant),
• Ricky Cox (the eventual victim),
• Brothers Jesse and Charles Dallas, and
• Later, Lisa Miley, Jesse’s ex-girlfriend.

During a card game in the kitchen, Cox—visibly intoxicated—accused Montgomery, who was dealing, of cheating by refusing to show his cards. Cox then refused to continue playing. Jesse, Charles, and Montgomery finished the hand without Cox. Montgomery then “went across the table and hit [Cox],” knocking him to the floor, where Cox “didn’t get up.”

Witnesses testified that Montgomery walked over to Cox and continued to punch and kick him while Cox lay on the floor. Jesse attempted to intervene. After a few minutes, Montgomery stopped and left the house. Cox remained on the floor “breathing hard.” With help from a neighbor, Carleton Nunn, Jesse and Charles carried Cox to the living room couch.

When Miley arrived, she observed that Cox was bleeding from his mouth and appeared unconscious, prompting her to call 911. Law enforcement officers found Cox unresponsive with a swollen eye and facial swelling. He was transported to a hospital, where he died on May 21, 2021.

The medical examiner later testified that Cox sustained:

• Multiple bruises to the face, scalp, and upper body,
• Internal bleeding,
• Fifteen fractured ribs, and
• Four lacerations of the heart.

The cause of death was “blunt force injuries related to a physical altercation,” and the manner of death was homicide. There was conflicting testimony about whether Cox had a pocketknife during the incident, but: (1) no witness testified that Cox threatened anyone with a knife that night, and (2) several witnesses had never known him to carry a knife. The next morning, Montgomery was arrested.

B. Charges, Trial, and Verdicts

On September 1, 2021, a Carroll County grand jury indicted Montgomery on four counts:

1. Malice murder (Count 1);
2. Felony murder predicated on aggravated battery (Count 2);
3. Aggravated assault (Count 3); and
4. Aggravated battery (Count 4).

A jury trial was held from January 9–13, 2023. The jury returned mixed verdicts:

• Not guilty of malice murder (Count 1);
• Guilty of felony murder based on aggravated battery (Count 2);
• Guilty of aggravated assault (Count 3); and
• Guilty of aggravated battery (Count 4).

The trial court sentenced Montgomery to life with the possibility of parole on the felony murder count, merging the remaining counts into that conviction.

C. Post‑Trial Proceedings and Appeal

Montgomery filed a timely motion for new trial, later amended by new counsel. After an evidentiary hearing, the trial court denied the motion on September 30, 2024. Montgomery then filed a timely notice of appeal. The case was docketed to the Supreme Court of Georgia’s August 2025 term and orally argued on August 26, 2025.

On appeal, Montgomery asserted two principal errors:

1. The verdicts were “repugnant” because the jury acquitted him of malice murder (which requires malice) but convicted him of felony murder based on aggravated battery (which, he argued, requires the same malice).
2. The trial court plainly erred in instructing the jury that the State did not need to prove “malice” for felony murder, where the predicate felony—aggravated battery—requires that the defendant “maliciously” cause bodily harm.

The Supreme Court of Georgia rejected both arguments and affirmed.

III. Summary of the Opinion

1. No repugnant verdicts. The Court held that the verdicts were not “repugnant” because the forms of “malice” required for malice murder and aggravated battery are legally distinct. Citing Pope v. State, 286 Ga. 1 (2009), the Court emphasized:

• Malice for malice murder is the unlawful intention to kill without justification, excuse, or mitigation.
• Malice for aggravated battery is an actual intent to cause the particular bodily harm produced (i.e., the serious injury) without justification or excuse.

Therefore, the jury could logically find that Montgomery intended to cause serious bodily harm (satisfying aggravated battery and furnishing a predicate for felony murder) but did not intend to kill (negating malice murder). The verdicts thus “logically co‑exist” and are not repugnant under Caldwell v. State, 317 Ga. 507 (2023).

Additionally, the Court stressed that repugnant verdicts require “affirmative findings shown on the record” as to the jury’s rationale that cannot logically or legally exist together. No such findings appeared here. Without an explicit record of the jury’s reasoning, courts will not speculate about why a jury acquitted on one count but convicted on another.

2. No plain error in jury instructions. Because Montgomery did not object to the jury instructions at trial, the Court reviewed for plain error under State v. Kelly, 290 Ga. 29 (2011). The trial court had given pattern instructions:

• Defining malice murder and its “malice” as an “unlawful intent to kill without justification,”
• Stating that, for felony murder, the State “does not have to show that the Defendant acted with malice,” and
• Defining aggravated battery as maliciously causing bodily harm by rendering a part of the body useless, with “malice” meaning an intent to cause the bodily harm without justification or excuse, or willfully acting while aware of a strong likelihood of that harm.

Though acknowledging that the instructions “may have been somewhat confusing” and that a “better instruction” would have more explicitly contrasted the two forms of malice, the Court held there was no “clear and obvious” error:

• Read as a whole, the instructions correctly explained the different meanings of “malice” in the context of malice murder and aggravated battery.
• The trial court properly informed the jury that felony murder does not require malice or intent to kill, but does require proof of all elements of the predicate felony (aggravated battery), including its intent element, consistent with Burley v. State, 316 Ga. 796 (2023).

Because Montgomery failed to show a clear and obvious instructional error, the Court did not reach the remaining prongs of the plain‑error test. The judgment of conviction for felony murder was affirmed.

IV. Detailed Analysis

A. Issue One – Alleged Repugnant Verdicts

1. Montgomery’s argument

Montgomery contended that the verdicts were “repugnant” under McElrath v. State, 308 Ga. 104 (2020), because:

• Both malice murder and aggravated battery allegedly share the same essential element of “malice,” and
• The jury’s not guilty verdict on malice murder necessarily meant it found he did not act with malice in causing Cox’s death, while its guilty verdict on felony murder predicated on aggravated battery necessarily meant it found he did act with malice toward Cox.

He argued that a defendant cannot logically and legally be found to have acted both with and without malice in relation to the same killing.

2. Repugnant vs. inconsistent verdicts in Georgia law

The Court’s analysis builds on a line of cases distinguishing:

• Inconsistent verdicts, and
• Repugnant verdicts.

In Caldwell v. State, 317 Ga. 507 (2023), the Court defined “repugnant verdicts” as those where:

“in order to find the defendant not guilty on one count and guilty on another, the jury must make affirmative findings shown on the record that cannot logically or legally exist at the same time.”

By contrast, in State v. Owens, 312 Ga. 212 (2021), the Court explained that “inconsistent verdicts” occur when a jury returns “seemingly incompatible” guilty and not guilty verdicts on different counts. Inconsistent verdicts generally are allowed to stand because:

• The jury’s rationale typically is not apparent from the record; and
• Court inquiries into the jury’s deliberations are tightly constrained.

The Court reiterated in Feder v. State, 319 Ga. 66 (2024), that courts “cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense,” recognizing possibilities such as compromise or lenity.

“Repugnant verdicts” are thus a narrow subset of cases where the jury’s reasoning is actually transparent and reveals logically incompatible affirmative findings. In Guajardo v. State, 290 Ga. 172 (2011), the Court emphasized that repugnant‑verdict reversal is reserved for the “rare instance” where the appellate record “makes transparent the jury’s rationale.”

3. The impact of the McElrath decisions

Montgomery relied on McElrath v. State, 308 Ga. 104 (2020), where the Georgia Supreme Court had held that a guilty‑but‑mentally‑ill verdict on malice murder and a not‑guilty‑by‑reason‑of‑insanity verdict on felony murder were repugnant. That case later went to the United States Supreme Court as McElrath v. Georgia, 601 U.S. 87 (2024). The U.S. Supreme Court held that vacating or disregarding an acquittal (even if repugnant) violates the Double Jeopardy Clause. On remand, in McElrath v. State, 319 Ga. 539 (2024), the Georgia Supreme Court acknowledged that where verdicts are repugnant, the remedy is to vacate the guilty verdict, not the acquittal.

In Montgomery, the Court cites this later McElrath decision to note the proper remedy if a verdict truly is repugnant: the guilty verdict must be vacated. However, the Court first had to ask whether the verdicts here were repugnant at all.

4. The crucial doctrinal lever: Pope v. State and the dual meanings of “malice”

The Court’s key analytic move is to reaffirm and apply Pope v. State, 286 Ga. 1 (2009), which held that “there is an important difference between the ‘malice’ required for malice murder and the ‘malice’ required for aggravated battery.” In Pope, the Court explained:

• Malice murder requires “the unlawful intention to kill without justification, excuse or mitigation.”
• Aggravated battery requires “an actual intent to cause the particular harm produced (that is, bodily harm) without justification or excuse.”

Thus, as Pope illustrated:

A defendant “might have had malice in the form of the intent to cause bodily harm with no malice in the form of the intent to kill, and yet death might still occur; in such a case the defendant would be guilty of felony murder but not malice murder.”

Montgomery directly applies this reasoning. The Court holds that the jury could rationally and legally conclude that:

• Montgomery intended to seriously injure Cox (thereby acting “maliciously” for purposes of aggravated battery), but
• He did not intend to kill Cox (therefore lacking malice for malice murder).

Death nevertheless occurred; thus, the elements of felony murder (death caused during the commission of a felony—here, aggravated battery) are satisfied without any requirement that the defendant intended to kill.

5. No record-based affirmative findings; no repugnancy

The Court also emphasizes the procedural requirement for repugnant verdicts: there must be “affirmative findings shown on the record” that are logically incompatible. Here:

• The jury returned a simple not guilty verdict on malice murder and guilty verdicts on felony murder and the predicate felonies.
• The jury gave no special interrogatories, no written explanations, and no other recorded findings of fact that reveal its reasoning.

Absent such an explicit record of the jury’s rationale, labeling the verdicts “repugnant” would:

“be based on either pure speculation, or would require inquiries into the jury’s deliberation that the courts generally will not undertake.”

The Court thus treats the verdicts as, at most, potentially inconsistent, not repugnant. Under Owens, Feder, and Caldwell, such inconsistencies do not warrant reversal.

6. Commentary: Doctrinal and practical significance

Montgomery consolidates several important propositions:

1. Conceptual separation of malice. The decision reinforces that “malice” in Georgia is a term of art with context‑specific meanings. Defense arguments that equate malice for malice murder with malice for aggravated battery are foreclosed by Pope and now strongly reaffirmed here.
2. Narrowing repugnant‑verdict doctrine. After the U.S. Supreme Court’s McElrath decision, Georgia’s doctrine on repugnant verdicts is not only limited in remedy (vacating the guilty verdict only) but now further limited in application. Montgomery makes it harder for defendants to characterize mixed verdicts in homicide cases as repugnant where different mental states are at issue.
3. Strategic implications for charging. Prosecutors can, with some comfort, continue to charge both malice murder and felony murder predicated on aggravated battery, knowing that a jury may acquit on malice murder and still convict on felony murder without rendering the verdicts legally repugnant.
4. Jury lenity and compromise preserved. The Court’s refusal to infer logical inconsistency from bare verdicts preserves the traditional tolerance for jury lenity, compromise, or mistake, so long as the conviction itself rests on a legally sufficient and coherent theory.

B. Issue Two – The Felony‑Murder Jury Instruction and Plain Error Review

1. The challenged instructions

During the charge conference, the trial court notified the parties it would use the pattern charges; no objections were raised. The jury was instructed, in relevant part, as follows.

On malice murder:

“The killing must have been done with malice to be murder. Malice, as the term is used here, is not necessarily ill will or hatred. Rather, it is the unlawful intent to kill without justification.”

On felony murder and aggravated battery:

“For felony murder, the State must prove that the Defendant caused the death of another person by committing a felony. The State does not have to show that the Defendant acted with malice to prove felony murder. Aggravated battery is a felony which I will define for you shortly. You may find the Defendant guilty of felony murder if you believe that he caused the death of another person by committing the felony of aggravated battery regardless of whether he intended … death to occur.”

On aggravated battery and its malice element:

“For aggravated battery, the State must prove that the Defendant one, maliciously caused bodily harm to another person, two, by rendering a part of that person’s body useless.… In deciding whether or not the Defendant acted maliciously … understand that malice is not ill will or hatred. Malice, in this context, means an intent to cause the resulting bodily harm without justification or excuse. Malice also means willfully doing an act while aware of a strong likelihood that that particular bodily harm may result.”

2. Montgomery’s appellate theory

Montgomery conceded he had not objected below, triggering plain‑error review. He argued on appeal that:

• While the statement “the State does not have to show that the Defendant acted with malice to prove felony murder” is generally correct (felony murder does not require intent to kill),
• It was misleading or erroneous in this case because the predicate felony—aggravated battery—does require proof of malice.

According to Montgomery, the instruction effectively told the jury that it could convict him of felony murder without finding the malicious intent necessary to commit aggravated battery, despite the fundamental principle that the State must prove each element of the predicate felony beyond a reasonable doubt to sustain a felony‑murder conviction.

3. The plain‑error standard

Under State v. Kelly, 290 Ga. 29 (2011), and subsequent decisions such as Bowdery v. State, 321 Ga. 890 (2025), Baker v. State, 319 Ga. 456 (2024), and Walton v. State, S25A0794 (Ga. Aug. 26, 2025), plain‑error review requires the appellant to show:

1. The alleged error was not affirmatively waived;
2. The error was “clear and obvious,” not subject to reasonable dispute;
3. The error likely affected the outcome of the trial; and
4. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

If any single prong is not satisfied, the court need not reach the others. As Bowdery notes, “[s]atisfying this high standard is difficult, as it should be,” and to establish a “clear and obvious” instructional error, an appellant must point to controlling authority or unequivocally clear statutory language that plainly establishes the error.

Additionally, under Holloway v. State, 320 Ga. 653 (2025), and Sauder v. State, 318 Ga. 791 (2024), appellate courts must evaluate jury instructions “as a whole,” not in isolated fragments.

4. The Court’s application of the standard

The Court acknowledged that the instructions “may have been somewhat confusing” and that a “better instruction would have explicitly explained the differences in the malice standards.” It nevertheless concluded that there was no clear and obvious error, for several reasons.

(a) Correct differentiation of malice definitions

First, the trial court correctly defined malice for:

• Malice murder: “the unlawful intent to kill without justification” (consistent with OCGA § 16‑5‑1 and Georgia case law); and
• Aggravated battery: “an intent to cause the resulting bodily harm without justification or excuse” or willfully acting with awareness of a strong likelihood that the particular harm may result.

This tracks the distinction in Pope, and the Court itself notes that the trial court “properly instructed the jury as to the different meanings of ‘malice’ in the contexts of malice murder and aggravated battery.”

(b) Correct statement of felony‑murder law

Second, the statement that the State “does not have to show that the Defendant acted with malice to prove felony murder” is consistent with Burley v. State, 316 Ga. 796 (2023), which reiterates that:

“the main difference between felony murder and malice murder is that felony murder does not require proof of malice or intent to kill.”

Felony murder in Georgia (OCGA § 16‑5‑1(c)) requires:

• That the defendant caused the death of another human being,
• In the commission of a felony.

There is no requirement that the defendant have intended the death itself. The instruction here, which told the jury it could find Montgomery guilty “regardless of whether he intended death to occur,” correctly stated this aspect of felony‑murder doctrine.

(c) Requirement to prove the predicate felony beyond a reasonable doubt

Third, the trial court explicitly required proof of the predicate felony:

• It told the jury that aggravated battery is a felony and that the State must prove aggravated battery’s elements; and
• It furnished a correct definition of aggravated battery consistent with OCGA § 16‑5‑24(a).

Citing Burley, the Court reaffirmed that the State must prove, beyond a reasonable doubt, that the defendant actually committed the charged predicate felony (here, aggravated battery) to sustain a felony‑murder conviction. The instructions, viewed in context, conveyed that requirement.

(d) No authority showing obvious error

Critically, Montgomery did not identify controlling authority or statutory language establishing that the standard pattern charge—distinguishing the malice required for malice murder but still separately defining malice for aggravated battery—is categorically erroneous. At most, his claim described a potential for juror confusion, which falls short of the “clear and obvious” standard required on plain‑error review.

Accordingly, Montgomery failed to carry his burden on the second prong of the plain‑error test. Under Walton, the Court therefore had no obligation to address the outcome‑effect or fairness prongs.

5. Commentary: Guidance for future cases

Montgomery sends several practical signals to trial courts and litigants:

1. Pattern instructions remain safe but not sacrosanct.
   The Court implicitly endorses the continued use of Georgia’s pattern instructions on malice murder, felony murder, and aggravated battery. At the same time, its observation that “a better instruction” would have more explicitly explained the dual meanings of “malice” encourages trial judges to clarify this point when felony murder is predicated on aggravated battery or other “malicious” felonies.
2. Defense counsel must object or request clarifications contemporaneously.
   Because plain‑error review is “difficult” to satisfy, defense attorneys who are concerned about juror confusion over malice should:
   • Object to the pattern charge’s phrasing as applied to the facts of the case; and/or
   • Request a tailored clarifying instruction that distinguishes:
     • Malice as intent to kill (for malice murder), from
     • Malice as intent to cause serious bodily harm (for aggravated battery).
   Failure to do so will usually foreclose relief absent an egregious misstatement of law.
3. Appellate courts will read instructions as a whole.
   The Court reiterates the principle from Holloway and Sauder that no single sentence in a jury charge can be divorced from its context. Where one part of the charge could be read as ambiguous, but the overall instructions correctly state the law, plain‑error relief is highly unlikely.
4. Differentiation of mental states matters at every stage.
   The case underscores the importance of carefully parsing statutory mental states. Whether at the indictment stage, in pre‑trial motions, in objections to jury instructions, or on appeal, counsel must pay close attention to how “intent” and “malice” are defined for each offense.

V. Complex Concepts Simplified

Several key legal concepts in the opinion benefit from plainer explanation.

A. Malice Murder vs. Felony Murder

• Malice murder (often called “intentional murder”) occurs when:
  • A person unlawfully and with “malice aforethought” (a deliberate, unjustified intent to kill) causes the death of another.
• Felony murder occurs when:
  • A person causes the death of another during the commission (or attempted commission) of a felony,
  • Even if the person did not intend to kill.

In Georgia, then, you can be guilty of felony murder if someone dies as a direct result of a felony you commit (such as aggravated battery), even if you “only” intended to seriously injure, not to kill.

B. Malice in Malice Murder vs. Malice in Aggravated Battery

In everyday language, “malice” suggests ill will or hatred. In Georgia criminal law, it has more specific meanings depending on the crime:

• Malice murder malice:
  • Unlawful intention to kill, without justification, excuse, or mitigation.
  • You mean to cause death.
• Aggravated battery malice:
  • Actual intent to cause the serious bodily harm that occurs (such as disabling a limb or seriously disfiguring someone), or
  • Willfully doing an act while aware of a strong likelihood that that particular harm will result,
  • Without justification or excuse.

The key idea: You can maliciously cause severe injury without maliciously intending to kill. Montgomery relies on this distinction.

C. Aggravated Battery (OCGA § 16‑5‑24)

Under OCGA § 16‑5‑24(a), a person commits aggravated battery when he or she:

• Maliciously causes bodily harm to another by:
  • Depriving the person of a member of his or her body, or
  • Rendering a member of his or her body useless, or
  • Seriously disfiguring the person’s body or a member thereof.

Examples might include breaking someone’s limbs such that they cannot use them, permanently disfiguring their face, or causing a comparable serious injury. In Montgomery, Cox’s extensive rib fractures and heart lacerations, inflicted in a beating, comfortably satisfy the kind of serious bodily harm aggravated battery contemplates.

D. Repugnant Verdicts vs. Inconsistent Verdicts

• Inconsistent verdicts:
  • Happen when the jury’s verdicts seem logically incompatible (for example, guilty of possessing a gun but not guilty of using that same gun in another charge),
  • But the record does not reveal the jury’s actual reasoning.
  • Georgia law generally allows these verdicts to stand; courts do not speculate about whether the inconsistency is due to compromise, lenity, or mistake.
• Repugnant verdicts:
  • Are a narrow category where the record actually shows the jury made two affirmative findings of fact that cannot logically or legally both be true (for example, that the same defendant was both legally insane and legally sane at the same time for the same conduct),
  • And those findings are memorialized in the verdict or special interrogatories.
  • In such cases, the guilty verdict must be vacated (especially after the U.S. Supreme Court’s decision in McElrath v. Georgia).

Montgomery confirms that mere tension between a not guilty verdict on malice murder and a guilty verdict on felony murder predicated on aggravated battery does not amount to repugnancy when the respective malice elements are legally distinct and the record does not reveal the jury’s specific reasoning.

E. Plain‑Error Review of Jury Instructions

Plain‑error review applies when a party did not object to an instruction at trial. It is a very demanding standard. The appellant must show:

1. The trial court made a legal error in the instruction;
2. The error was clear and obvious under existing law (not a close or debatable point);
3. The error probably changed the result of the trial; and
4. The error seriously undermines the fairness or integrity of the judicial process.

If the instruction is reasonably defensible under existing legal authorities, or if other parts of the charge cure any ambiguity, the error will not be “plain.” Montgomery exemplifies this: even if the instructions could have been clearer, they were close enough to the law, especially in context, that no clear and obvious error existed.

VI. Broader Impact and Future Implications

A. Homicide prosecutions involving aggravated battery

For prosecutors, Montgomery validates the practice of:

• Charging both malice murder and felony murder predicated on aggravated battery arising out of a single killing; and
• Relying on the jury to differentiate between intent to kill and intent to inflict serious bodily injury.

Mixed verdicts—acquitting on malice murder but convicting on felony murder and aggravated battery—will generally withstand repugnant‑verdict challenges so long as:

• The elements of each offense are correctly defined to the jury; and
• The record does not contain explicit, contradictory fact‑findings by the jury.

B. Pattern jury instructions and trial‑level practice

The decision reinforces the strong presumption of correctness afforded to pattern jury instructions that track statutory and case‑law language. At the same time, it suggests a “best practice” for trial courts:

• When felony murder is predicated on a felony that also uses “malice” or another mental‑state term that appears in a different offense (e.g., malice murder),
• The court should consider adding a brief, explicit clarification that:
  • “Malice” as used in the predicate felony has a different, narrower meaning than “malice” in malice murder.

For defense counsel, Montgomery underscores the importance of:

• Engaging in the charge conference and requesting clarifying language when mental‑state terms overlap;
• Objecting to potentially confusing phrasing, thereby preserving the issue for harmless‑error rather than plain‑error review; and
• Framing objections in terms of the jury’s potential misunderstanding of distinct mental elements.

C. Stability and finality of jury verdicts

By constraining the scope of the repugnant‑verdict doctrine and by applying a stringent plain‑error standard, Montgomery promotes finality of jury verdicts. Appellate courts will be reluctant to disturb:

• Guilty verdicts supported by the evidence and logically consistent with correct legal principles, and
• Acquittals whose rationales are opaque, even if the overall verdict appears internally inconsistent.

This stance respects the jury’s traditional role, including its capacity for compromise or lenity, and responds to the constitutional constraints highlighted in McElrath v. Georgia on tampering with acquittals.

D. Refinement of mental‑state analysis in Georgia criminal law

Finally, Montgomery contributes to a broader doctrinal trend in Georgia toward:

• More granular differentiation of mental states (especially within the broad label “malice”), and
• Careful parsing of how those mental states attach to different offenses in multi‑count indictments.

This refinement is especially important where serious violent felonies (such as aggravated battery) serve as predicates for homicide charges, and where appellate claims of logical inconsistency or repugnancy are foreseeable.

VII. Conclusion

Montgomery v. State is a significant clarification of Georgia law on two fronts.

First, it confirms that an acquittal on malice murder can peacefully coexist with a conviction for felony murder predicated on aggravated battery, because the “malice” required for each crime is legally distinct. A defendant may intend to inflict grave bodily injury without intending to kill; if death ensues, felony murder is available even though malice murder is not. The verdicts in such a case are not “repugnant” unless the record explicitly reveals irreconcilable fact‑findings by the jury.

Second, the decision reinforces the difficulty of obtaining relief under plain‑error review for unobjected‑to jury instructions. Where the trial court’s instructions follow pattern charges, correctly distinguish the elements and mental states of the offenses when viewed as a whole, and are reasonably supported by existing authority, they will not be set aside as “clear and obvious” error even if, in hindsight, they could have been drafted more clearly.

Taken together, these holdings strengthen the stability of mixed homicide verdicts in Georgia, confirm the continuing vitality of Pope’s dual‑malice framework, and provide practical guidance to trial courts and practitioners on how to handle overlapping mental‑state terminology in complex criminal prosecutions.