Dillard, Presiding Judge. Following trial, a jury convicted Jill Peppers of second-degree murder, second-degree cruelty to children, and involuntary manslaughter.[1] Peppers filed a motion for a new trial, and the trial court granted it as to each of these convictions because it found there was insufficient evidence to support the jury’s verdict. The State now appeals, arguing (1) the trial court’s grant of a new trial based on its finding that there was insufficient evidence to support Peppers’s convictions was erroneous as a matter of law; (2) this Court is permitted to review the trial court’s determination regarding the sufficiency of the evidence; (3) there was no fatal variance between the allegations in the indictment and evidence presented at trial; and (4) there was sufficient evidence to support Peppers’s convictions. For the following reasons, we vacate the trial court’s grant of a new trial and remand the case for further proceedings consistent with this opinion.[2] Viewed in the light most favorable to the jury’s verdict,[3] the record shows that on April 8, 2020, an investigator with the Georgia Division of Family and Children Services (“DFCS”) had a video conference with Peppers—who was in the hospital after giving birth to a baby boy—to educate her on safe sleep practices for infants.[4] The investigator advised Peppers to notify him when she was discharged from the hospital so they could complete a virtual home visit at her sister’s residence, where Peppers had been instructed to go after being discharged. Following this safety training, Peppers signed an acknowledgment form, which, among other things, noted: “Sleeping with my baby increases the risk of my baby dying from suffocation, SUIDS [sudden unexplained infant death syndrome], or SIDS [sudden infant death syndrome]. My baby should be placed on his or her back when sleeping.” The DFCS investigator contacted Peppers again on May 4, 2020, when she was staying in a hotel with the baby and another child, at which point they had another video conference to “rediscuss safe sleep,” and the investigator observed Peppers was following the safety plan at that time. Specifically, Peppers obtained a bassinet and was placing the baby on his back with no soft objects in the sleep area. On May 29, 2020, William Davis—a patrol officer with the Elbert County Sheriff’s Office—responded to a 911 call regarding an unresponsive child. When Davis arrived, an emergency medical technician (“EMT”) was already on the scene, and Davis observed “a young child laying on the bed with blood coming from his nose and blood on the pillows . . . .” According to the EMT, when she arrived, it was immediately obvious that a six-month-old baby was deceased, and so she had no opportunity to resuscitate him. The EMT spoke with Peppers, who could not provide a specific answer regarding what time the baby went to sleep; but Peppers did say the baby fell asleep cradled in her left arm. As for Davis, he learned that Peppers was the baby’s mother and asked her to step outside to speak with him. Peppers told Davis the baby had gone to sleep, and when she woke up, he was unresponsive and cold to the touch. Subsequently, Peppers was charged, via indictment, with second-degree murder, second-degree cruelty to children, and involuntary manslaughter. And following trial, a jury convicted her of those offenses. Peppers then filed a motion for a new trial, which the trial court granted, finding there was insufficient evidence to show Peppers’s act of co-sleeping with her son caused his death. This appeal by the State follows. 1. The State argues the trial court’s grant of Peppers’s motion for a new trial was erroneous as a matter of law. We agree. After the jury found Peppers guilty of all charged offenses, the trial court granted her a new trial. In doing so, the court appeared to rely solely on the testimony of Doctor Lora Darrisaw, who is the director of pediatric forensic pathology and deputy chief medical examiner for the Georgia Bureau of Investigation.[5] On May 30, 2020, Darrisaw performed an autopsy on Peppers’s baby to determine the cause and manner of his death, and she ultimately concluded that he died of SUIDS, which is associated with bed-sharing. Although Darrisaw was clear that SUIDS is related to co-sleeping, she could not say “within a reasonable degree of medical or scientific probability” that co-sleeping was the cause of the baby’s death. Further, Darrisaw could not state the baby would not have died if the co-sleeping had not occurred. The trial court also found it noteworthy that the State tried to prove Peppers smothered her baby because of a streak of blood on her shirt, but Darrisaw testified that it was not uncommon for a baby’s blood to “purge” from the nose upon death from SUIDS. Further, the court determined that evidence of smothering would be a fatal variance from the allegations in the indictment because the counts at issue only alleged Peppers co-slept with her child, not that she smothered him. And as a result, the court did not let the State argue the blood was evidence of smothering. Lastly, the court noted that “[s]ubsumed within the [c]ourt’s finding and conclusion is the finding that the jury’s verdict is contrary to the evidence and the principles of justice and equity.” As previously noted, the State maintains the trial court’s grant of a new trial was erroneous as a matter of law. In fact, both the State and Peppers correctly argue that the grant of a new trial based on insufficiency of the evidence violates Peppers’s constitutional right against double jeopardy.[6] Indeed, once a reviewing court reverses a conviction solely for insufficiency of the evidence to sustain the jury’s verdict of guilty, “double jeopardy bars retrial.”[7] And because the trial court improperly granted the motion for a new trial on sufficiency grounds, we must vacate the trial court’s order granting Peppers a new trial and remand the case for further proceedings.[8] 2. Given our holding in Division 1, we need not address the State’s remaining arguments.[9] In sum, the trial court erred in granting Peppers’s motion for new trial based on its finding that there was insufficient evidence to support her convictions. Suffice it to say, if the court was concerned about the sufficiency or weight of the evidence presented to the jury, it had options for addressing those concerns, such as vacating or reversing Peppers’s convictions or granting a new trial in its capacity as the “thirteenth” juror.[10] What it cannot do—absent extraordinary circumstances not applicable here[11]—is grant a motion for new trial based on a determination that there was insufficient evidence to support the defendant’s convictions. For all these reasons, we vacate the trial court’s grant of a new trial and remand the case for further proceedings consistent with this opinion. Judgment vacated and case remanded. Rickman and Pipkin, JJ., concur.
