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In the Supreme Court of Georgia



                                                   Decided: January 18, 2023


                       S22A1215. WHITED v. THE STATE.


       BETHEL, Justice.

       Justin Lee Whited was convicted of felony murder, aggravated

battery, and cruelty to children in the first degree in connection with

the death of his seven-week old daughter, Dinah Whited. On appeal,

Whited argues that: (1) the trial court plainly erred by giving a

single-witness charge under OCGA § 24-14-8 without also giving a

charge on accomplice corroboration; and (2) the trial court abused

its discretion by denying Whited’s motion in limine under OCGA §

24-4-403 to exclude from evidence a recording of a phone call in

which Whited discussed the decision to remove his daughter from

life support.1 For the reasons that follow, we affirm.


      Dinah was brought to the hospital on April 23, 2016, and she died on
       1

August 8, 2016, after being removed from life support. On November 30, 2016,
      1. The evidence presented at trial showed the following. 2 On

the night of April 22, 2016, Whited and his wife, Jamie Whited, left

their children with Jamie’s aunt and uncle, Rhonda and Robert

Scarborough, while they went to the fair. Whited and Jamie had two

children: a two-year-old boy and Dinah. Jamie and Whited picked

up both children from the Scarboroughs around 10:30 p.m. Rhonda

testified that at that point, Dinah was “fine[,] . . . not in pain or

nothing.” After Whited and Jamie returned home, they put their son

to sleep in his own bed. Dinah slept in the middle of their bed,



a Walton County grand jury indicted Whited for malice murder (Count 1), two
counts of felony murder (Counts 2 and 3), aggravated battery (Count 4), and
two counts of cruelty to children in the first degree, which were based on
separate acts of physical abuse on April 23, 2016 (Counts 5 and 6). At a jury
trial held in May 2018, Whited was found guilty of Counts 2, 3, 4, and 5. The
jury found Whited not guilty of Count 1 and Count 6. The trial court sentenced
Whited to life in prison without the possibility of parole on Count 2 and 20
years in prison on Count 5, to be served concurrently with Count 2. The trial
court purported to merge Count 3 with Count 2, but Count 3 was actually
vacated by operation of law. See Noel v. State, 

 (2) (

) (2015). Count 4 merged with Count 2 for sentencing. On May 23, 2018,
Whited filed a motion for new trial, which he amended two times through
counsel. Following a hearing, the trial court denied the motion, as amended,
on May 24, 2022. Whited timely filed a notice of appeal. This case was docketed
to this Court’s August 2022 term and submitted for a decision on the briefs.
       2 Because this case requires an assessment of whether certain assumed

errors by the trial court were harmless, we lay out the evidence in detail and
not only in the light most favorable to the jury’s verdicts. See Strong v. State,

 (1) n.2 (

) (2020).
                                       2
between Whited and Jamie.

     The next morning, Jamie awoke to Dinah crying and went to

the kitchen to make her a bottle. Jamie testified that Dinah had

stopped crying before she returned to the bedroom, but when she

returned, she realized that Dinah was not breathing normally and

was “gasping for breath.” At that point, Jamie woke Whited up and

said that they needed to take Dinah to the hospital because “[b]abies

don’t breathe like this.”

     Jamie and Whited then placed Dinah and their son into the

car, and Whited began driving to the hospital. However, they

returned home shortly after leaving their driveway to call an

ambulance because Dinah was no longer breathing and was “turning

blue.” As they returned home, Jamie called 911, and Whited began

performing CPR on Dinah. Paramedics arrived and transported

Dinah to a hospital in Monroe. At that point, Dinah was not

breathing on her own and did not have a pulse.

     Dinah was ultimately transported via helicopter to a hospital

in Atlanta. Medical personnel at the hospital conducted initial X-

                                 3
rays of Dinah, which showed collarbone fractures, shoulder

fractures, multiple rib fractures, and bone fractures in both of her

legs. Dr. Tamika Bryant, one of Dinah’s physicians at the hospital

in Atlanta, testified that all of these fractures showed signs of

healing at the time the images were taken at the hospital, which

indicated that they were sustained prior to that day. Medical

personnel also performed a head CT scan on Dinah, which showed a

brain injury and bleeding around her brain that had occurred within

the 72 hours before her arrival at the hospital. An ophthalmologist

at the hospital also observed that Dinah had multiple retinal

hemorrhages.

     Another of Dinah’s physicians at the hospital in Atlanta, Dr.

Mathew Paden, testified that Dinah was bleeding so much that they

had to “basically completely replace[] her entire blood volume” at the

hospital through a transfusion. He testified that it would have taken

a “tremendous amount of force onto” the veins around Dinah’s skull

that were bleeding “in order to make the[m] tear” and that her

injuries were consistent with a baby who was shaken or received

                                  4
trauma. Dr. Paden noted that a massive injury like Dinah’s would

have been “symptomatic almost immediately.” While Dr. Paden

acknowledged that there are rare medical conditions that could have

resulted in Dinah’s injuries without any shaking or other trauma,

he noted that the hospital tested for those conditions and

determined that Dinah did not have them.

     Medical personnel performed a new set of X-rays on Dinah on

May 14, 2016, which showed additional fractures in both of her legs

that were not identified in the prior X-rays. Dr. Bryant testified that

she suspected that these additional leg injuries occurred around the

same time as the brain injury because they did not show up in the

initial X-ray. She also testified that all of Dinah’s injuries were

consistent with child abuse because normal handling of a seven-

week-old does not result in the kind of injuries Dinah suffered. Dr.

Bryant also testified that a seven-week-old cannot sustain self-

inflicted leg injuries of the sort Dinah experienced because they

cannot “walk, run, crawl, or do anything to cause those injuries.” A

paramedic who responded to the Whited house also testified that

                                  5
Dinah’s collarbone fracture could not have been caused by properly

administered CPR from a trained first responder.

     Over the next few months, medical personnel conducted

several additional tests and found that Dinah had “only the very

tiniest of brain function.” Dinah was taken off life support on August

4, 2018, and she died on August 8. The GBI medical examiner who

performed the autopsy on Dinah testified that the cause of her death

was traumatic brain injury.

     Jamie testified that she was not aware of Dinah’s prior injuries

before she learned about them from hospital personnel who had

examined Dinah. She testified that she had previously noticed a

knot on Dinah’s collarbone but noted that she was assured by

Dinah’s pediatrician, Dr. Holly Hubbard, that there was nothing

wrong with Dinah. Dr. Hubbard testified that she examined Dinah

but did not obtain X-rays when Jamie brought Dinah in to have her

collarbone examined because she “wasn’t suspicious of anything.”

Dr. Paden testified that because injuries in babies do not always

show up externally, a pediatrician might not discover a collarbone

                                  6
fracture during an external exam.

     When asked about Dinah’s collarbone injury at the hospital,

Jamie said that her two-year-old son caused the injury when he

attempted to crawl on top of Dinah to give her a pacifier while she

was in a bouncy seat. But at trial, Jamie testified that the story she

gave at the hospital was not true and explained that there was

another possible cause of her collarbone injury. Prior to the knot

appearing on Dinah’s collarbone, there was an incident where Jamie

left the bedroom while Whited and Dinah were sleeping and re-

entered after hearing Dinah crying to find Dinah with a “knot on her

head,” Jamie and Whited’s son at the foot of the bed, and Whited on

the bed with his elbow propped up. 3

     Dr. Hubbard testified that Dinah’s injuries could not have been

caused by interaction with a two-year-old. She testified that a two-

year-old does not “have enough strength or force” to cause a rib

fracture and that a two-year-old could not have caused the brain



     3 Jamie did not specify how the injury occurred or whether she believed
it was Whited or the son who caused Dinah’s injuries during this incident.
                                     7
bleeding that Dinah suffered because the brain bleeding was

“caused by shaking, and even though [a two-year-old] could shake a

child, it is not with the same force that is required to cause the

bleeding in the brain.”

     Jamie testified that she fabricated the story about her son

crawling on top of Dinah on the bouncy chair because she was

“worried that someone would get suspicious that [she and Whited]

were on drugs” because Whited “had slept so hard while [Dinah]

cried” that their son was able to get on top of Dinah without Whited

noticing. Jamie also testified that, around the time they came to the

hospital, she was detoxing from prescription medication that she

was not prescribed, specifically Roxicodone.

     Whited was interviewed by a police officer and a social worker

at the hospital, and the audio of the interview was played for the

jury. During the interview, Whited said the following. Dinah had

slept in his and Jamie’s bed that night. Jamie went to the kitchen in

the morning to make a bottle because Dinah woke up and just “kept

crying and crying and crying.” While Jamie was in the kitchen,

                                 8
Whited woke up and talked to Dinah in an effort to calm her down

before he went back to sleep. When Jamie came back in, she said

that Dinah looked like she was not “breathing right,” and Whited

told Jamie that Dinah “probably wore herself out from crying so

hard.” But Jamie responded to Whited that “something didn’t seem

right.” During the course of the interview, Whited also suggested

that their son caused Dinah’s injuries but did not provide any

meaningful description of how.

       Whited called an expert witness, Dr. Joseph Scheller, who

testified that while Dinah’s injuries could have been a result of a

violent attack or violent shaking, there were other possibilities. He

testified that her brain injury could have been caused by a stroke,

by a bleeding problem, or by being accidentally dropped. He also

testified that Dinah’s previous fractures could have been caused

from an accidental fall, a child jumping on her, or a dog jumping on

her.

       2. Whited contends that the trial court plainly erred by

instructing the jury that a single witness’s testimony is sufficient to

                                  9
establish a fact without also instructing that an accomplice’s

testimony must be corroborated. He argues that the accomplice-

corroboration charge was required in this case because the State

relied on Jamie’s testimony, who Whited contends was his

accomplice. Pretermitting whether the failure to charge was error,

we conclude that Whited’s claim fails because he does not meet the

applicable standard for showing plain error.

     Under Georgia law, “[t]he testimony of a single witness is

generally sufficient to establish a fact.” OCGA § 24-14-8. However,

in “felony cases where the only witness is an accomplice, the

testimony of a single witness shall not be sufficient. Nevertheless,

corroborating circumstances may dispense with the necessity for the

testimony of a second witness.” Id. Thus, as we have held, “a felony

conviction cannot be sustained solely by the uncorroborated

testimony of an accomplice.” (Citation omitted.) McKibbins v. State,

 (1) (

) (2013).

     Here, the trial court charged the jury that a single witness’s

testimony is sufficient to establish a fact and that “[g]enerally there

                                  10
is no legal requirement of corroboration of a witness,” but did not

charge that accomplice testimony requires corroboration. Whited

contends this was error but concedes that “because he did not

request this instruction and failed to object to its omission, his claim

of error is reviewed only for plain error.” Pindling v. State, 

 (2) (

) (2021). See also OCGA § 17-8-58 (b)

(“Failure to object . . . shall preclude appellate review of such portion

of the jury charge, unless such portion of the jury charge constitutes

plain error which affects substantial rights of the parties.”). To

establish plain error, Whited must meet each of the following four

prongs:

     (1) the failure to give the instruction was not affirmatively
     waived, (2) the failure was an obvious error beyond
     reasonable dispute, (3) the error likely affected the
     outcome of the proceedings, and (4) the error seriously
     affected the fairness, integrity, or public reputation of
     judicial proceedings.

Pindling, 

 (2). We do “not have to analyze all elements

of the plain-error test where an appellant fails to establish one of

them.” Payne v. State, 

 (1) (

) (2022).


                                   11
“Satisfying all four prongs of this standard is difficult, as it should

be.” (Citation omitted.) Hood v. State, 

 (2) (a) (

) (2018).

      Pretermitting the question of whether the record supports

Whited’s assertion that Jamie was acting as his accomplice (and

therefore whether the failure to charge on accomplice corroboration

was a clear or obvious error4), we conclude that this enumeration

fails because Whited has not demonstrated that the claimed error

likely affected the outcome of the proceedings. Whited argues that




      4   Under OCGA § 24-14-8,

      if there is evidence that could support a finding that a witness was
      an accomplice to the crime, and that witness provides testimony
      that directly links the defendant to the crime, it is a clear and
      obvious error for the trial court to instruct the jury that the
      testimony of a single witness is sufficient to establish a fact
      without also instructing the jury that an accomplice’s testimony
      must be corroborated.

Pindling, 

 (2). But a failure to charge on accomplice
corroboration cannot be clear or obvious error if there is not at least slight
evidence in the record that the witness was an accomplice. See Horton v. State,

 (3) (

) (2020) (concluding that the appellant could
not “show that any error was obvious beyond reasonable dispute” because he
“pointed to no law clearly demonstrating that [the witness could] be considered
an accomplice”).
                                      12
Jamie’s testimony was the “bedrock” of the State’s case because she

was the only testifying witness to place Whited in the bedroom with

Dinah when her crying stopped. A review of Jamie’s testimony does

reveal that Jamie placed Whited with Dinah at the time her crying

stopped and immediately prior to the discovery of her breathing

problems. Indeed, that is the primary evidence she provided that

directly incriminated Whited in the injuries resulting in Dinah’s

death. But Jamie’s testimony on that point can hardly be

characterized as more valuable to the State than Whited’s

statements in his interview with the police that said precisely the

same thing. The jury heard a recording of Whited’s interview given

at the hospital in which he stated that just before Dinah stopped

crying and had trouble breathing, he was alone in the bedroom with

her while Jamie went to make her a bottle. We cannot see how a

rational trier of fact who had been instructed that, to the extent they

found Jamie to be an accomplice, they must find her testimony to

have been corroborated would have reached any different result

under the circumstances described above. In other words, an

                                  13
accomplice-corroboration charge is not likely to affect a jury’s verdict

where evidence from the defendant’s own lips in fact corroborated

the potential accomplice testimony in question. Compare Jackson v.

State, 

 (1) (

) (2022) (concluding

that the failure to provide an accomplice-corroboration charge did

not likely affect the outcome of the proceeding where in addition to

other witnesses corroborating his involvement, the appellant

admitted at trial that he physically accompanied his co-defendants

to help obtain a gun but denied that he knew of any plan or intent

to shoot anyone); Hawkins v. State, 

 (3) (

) (2018) (concluding that the trial court did not commit plain

error in failing to instruct the jury on accomplice corroboration

because there was “significant and consistent evidence outside of the

testimony provided by the accomplice to specifically connect [the

appellant] to [the] murder . . . including [the appellant’s] own

admission”); and Hamm v. State, 

 (2) (

) (2014) (concluding that the failure to charge on accomplice

corroboration   was    harmless    because    the   State   introduced

                                  14
independent evidence connecting him to the shooting and

introduced the appellant’s admission to another person that he

killed someone) with Stanbury v. State, 

 (2) (

) (2016) (concluding that trial court’s failure to charge on

accomplice corroboration “likely affected” the outcome of the

proceedings   even   though    “there   was   slight   evidence   of

corroboration” because the accomplice “was the only witness who

affirmatively identified” the appellant as the shooter). Due to

Whited’s own corroboration of the key points of Jamie’s testimony

and the other physical evidence regarding the nature and extent of

Dinah’s injuries, it is not likely that giving an accomplice-

corroboration charge would have affected the outcome of his trial.

Accordingly, Whited has failed to demonstrate plain error.

     3. Whited also contends that the trial court abused its

discretion by denying his motion in limine under OCGA § 24-4-403

to exclude from evidence a recording of a phone call Whited made

while in jail in which he discussed the decision to remove his

daughter from life support. During the phone call, Whited expressed

                                15
concerns that removing Dinah from life support could affect his

sentence. He noted that if he did not “pull the plug” on Dinah, he

could “just do five years instead of a whole life” in prison. He also

stated that he had “another kid out here”; that he had “a life too”;

that “two lives aren’t worth one”; and that he didn’t “want to [pull

the plug] and lose [his] life at the same time.” Whited also stated

multiple times during the call that he did not harm his daughter and

that he loved her. The State argued that the call was relevant to

Whited’s “frame of mind [] involving the situation with his

daughter.” Whited contends that the trial court’s denial of his

motion was an abuse of discretion. We disagree.

     OCGA § 24-4-401 provides that “relevant evidence means

evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” “The test for

relevance under Rule 401 is generally a liberal one.” Booth v. State,

 (3) (

) (2017). Moreover, “[a]ll relevant

evidence shall be admissible, except as limited by constitutional

                                 16
requirements or as otherwise provided by law or by other rules.”

OCGA § 24-4-402.

     In addition, OCGA § 24-4-403 provides that “[r]elevant

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” “[T]he exclusion of

evidence under Rule 403 is an extraordinary remedy which should

be used only sparingly,” and a trial court’s decision to admit evidence

under Rule 403 will be overturned only for an abuse of discretion.

Flowers v. State, 

 (2) (

) (2020). See

also Moss v. State, 

 (5) (b) (

) (2016)

(“[T]he trial court ha[s] considerable discretion in determining

whether the potential prejudice substantially outweigh[s] any

probative value.”).

     Here, while the considerations appear more challenging than

most 403 balancing efforts, we conclude that the trial court did not

abuse its discretion in determining that the jail call’s probative

value was not substantially outweighed by its prejudicial effect.

Whited’s own statements during the jail call concerning the effect

                                  17
Dinah’s death would have on his potential sentence could be

understood by a jury as indicating callousness or indifference with

respect to the wellbeing of his daughter, the victim of his alleged

crimes. Moreover, any perceived disregard for his daughter’s

wellbeing was relevant to the question of Whited’s intent towards

Dinah on the day she sustained her fatal injuries. In light of the fact

that the State was pursuing a conviction for malice murder, the

contents of the call were relevant to the jury’s consideration of

intent. Evidence of Whited’s valuation of Dinah’s life in the weeks

following her injuries was relevant to a consideration of his intent

with respect to his actions on the day Dinah’s fatal injuries were

sustained. Additionally, Whited’s callousness towards Dinah could

have refuted any suggestion that Dinah’s injuries were caused by

accident. Accordingly, his statements were both relevant to and

probative of whether Whited was responsible for Dinah’s injuries.

See Smith v. State, 

 (3) (

) (2017)

(concluding that the trial court did not abuse its discretion by

admitting the appellant’s jail call in which he denied any

                                  18
involvement in the crime despite a Rule 403 objection due to the

appellant making several derogatory references during the call).

     Whited maintains that the jury hearing his consideration of

the impact on himself, and specifically of the criminal charges he

would face flowing from the decision to terminate life support for

Dinah, was unfairly prejudicial in that it invited the jury to convict

on that basis rather than based on proof of the charged offenses.

While Whited’s discussion of his self-interest in the decision to

remove Dinah from life support also carried a risk of unfair

prejudice, the magnitude of the prejudicial effect of the recorded call

is rightfully considered in light of Whited’s repeated statements that

he never caused Dinah any harm and that he loved his daughter,

which the jury also heard. Cf. Parks v. State, 

 (4)

(

) (2016) (noting that the trial court limiting the

appellant’s impeachment of a witness did not affect his substantial

rights because “some of the [witness’s] testimony was beneficial to

the defense”).

     Additionally, it is noteworthy in considering the extent of any

                                  19
unfair prejudice that the State’s opening and closing statements did

not focus on the jail call. See Morrell v. State, 

 (2)

(

) (2022) (noting that evidence of the appellant’s

involvement in a prior murder was “prejudicial but not extremely

so” in part because “although the State mentioned the [prior]

murder in closing arguments, it focused” on the appellant’s attempt

to cover up his crimes and hinder the State’s case); Morgan v. State,

 (3) (e) (

) (2020) (noting, while

determining that the trial court’s improper admission of a video

recording was harmless error, that the video recording containing

unfair prejudice “played a minor role in both the State’s case and

[the appellant’s] theory of defense”). Instead, the State did not

mention the jail call at all during its opening statement and made

only one brief reference to the call during the State’s closing

statement.

     Therefore, while admission of the call carried some risk of

unfair prejudice, especially in light of the significant deference this

Court affords to a trial court’s admission or exclusion of evidence

                                  20
under Rule 403, we conclude that the trial court did not abuse its

discretion by determining that any unfair prejudice from the

admission of the jail call did not substantially outweigh its probative

value. See Wilson v. State, 

 (2) (

)

(2021) (“We recognize that Rule 403 is an extraordinary remedy, and

that in reviewing the admission of evidence under Rule 403, we look

at the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its undue

prejudicial impact.”); Flowers, 

 (2) (“The

application of the Rule 403 test is a matter committed principally to

the discretion of the trial courts.”); Smith, 

 (3)

(concluding that the trial court did not abuse its discretion in

admitting the defendant’s jail call, despite some risk of unfair

prejudice where the probative value of the defendant’s own

statements could not “be disputed” (citation and punctuation

omitted)). Accordingly, the trial court did not abuse its discretion by

admitting the recording of the jail call into evidence.

     Judgment affirmed. All the Justices concur.

                                  21