ROOKS v. THE STATE (Two Cases) ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: October 24, 2023
S23A0783. ROOKS v. THE STATE.
S23A0801. CLARK v. THE STATE.
WARREN, Justice.
Appellants Joshua Rooks and Quatez Clark were convicted of
malice murder and other crimes in connection with the shooting
death of Christopher Dean.1 Rooks contends that the evidence
1 Dean was killed on October 17, 2016. In February 2017, a Fulton
County grand jury indicted Rooks, Clark, Christopher Lockett, Jasper Green,
Lamar Almon, Xavier Gibson (“Xavier”), and Orlando Gibson (“Orlando”) for
malice murder, three counts of felony murder, participating in criminal street
gang activity, armed robbery, two counts of aggravated assault (one count for
shooting Dean and the other for “striking him about his body with a wooden
board”), tampering with evidence, concealing the death of another, and
possession of a firearm during the commission of a felony. Xavier was also
indicted for an additional count of felony murder and for possession of a firearm
by a convicted felon.
Rooks, Clark, Lockett, Green, and Xavier were tried together from March
19 to April 1, 2019. Orlando’s case was severed for trial, and Almon’s charges
were still pending when he testified for the State at the joint trial of the other
five co-defendants. The jury found Rooks guilty of all counts except one count
of felony murder, the aggravated-assault counts, and the firearm count. The
jury found Clark guilty of all counts. (The jury found Lockett guilty of all
counts except the firearm count; the jury found Green guilty of all counts
presented at trial was legally insufficient to support his convictions
and that the trial court erred by failing to grant his motion for a
directed verdict of acquittal. Clark similarly contends that the trial
court erred by failing to grant his motion for a directed verdict of
acquittal on certain counts; he also claims that the court erred by
failing to grant his motion for new trial on the “general grounds” set
except one count of felony murder, the aggravated-assault counts, and the
firearm count; and the jury found Xavier guilty of all counts except one count
of felony murder and possession of a firearm during the commission of a
felony.) The trial court sentenced Rooks to serve life in prison for malice
murder, 5 concurrent years for the gang-activity count, 10 concurrent years for
armed robbery, 3 concurrent years for tampering with evidence, and a
suspended term of 5 consecutive years for concealing a death. Rooks’s felony-
murder counts were vacated by operation of law. Clark was sentenced to serve
life in prison for malice murder, 10 concurrent years for the gang-activity
count, a consecutive life sentence for armed robbery, 10 concurrent years for
the count of aggravated assault based on striking Dean, 3 concurrent years for
tampering with evidence, 5 concurrent years for concealing a death, and 5
consecutive years for the firearm count. Clark’s felony-murder counts were
vacated by operation of law, and the remaining count of aggravated assault
merged. The record shows that Orlando later pled guilty to several counts
related to the crimes, including murder. The record does not indicate what
happened to Almon’s, Lockett’s, Green’s, or Xavier’s cases, which are not part
of these appeals.
Rooks filed a timely motion for new trial, which he later amended twice.
Clark also filed a timely motion for new trial, which he also later amended.
Following a hearing, the trial court denied Rooks’s motion in October 2022; the
court denied Clark’s motion in March 2023, after a separate hearing. Rooks
and Clark each filed timely notices of appeal. Rooks’s case was docketed to this
Court’s April 2023 term; Clark’s case was docketed to the August 2023 term.
Both cases were submitted for a decision on the briefs.
2
forth in OCGA §§ 5-5-20 and 5-5-21 and by admitting under OCGA
§ 24-4-404 (b) (“Rule 404 (b)”) evidence showing that he participated
in another murder 11 days after Dean’s murder and that he
committed marijuana- and firearm-related crimes about two months
after Dean’s murder. As explained below, we affirm the convictions
in both cases.
1. By way of background, the State’s theory of the case was
that Dean’s former associate, Brian Dye, who—like Dean, was a
drug dealer, and who was a member of the Gangster Disciples
gang—directed Christopher Lockett to kill Dean; that Lockett lured
Dean to a house on Sandy Creek Drive in Atlanta on the pretext of
buying marijuana; and that Lockett recruited several of his
associates, including Rooks, Clark, Jasper Green, Lamar Almon,
Xavier Gibson (“Xavier”), Xavier’s brother Orlando Gibson
(“Orlando”), and Shakur Wright, to participate in Dean’s murder.
The evidence presented at the trial of Rooks, Clark, Lockett, Green,
3
and Xavier showed the following. 2
(a) The State’s Case-In-Chief
Dean and his associate Dye, a member of the Gangster
Disciples gang, sold marijuana, and Dean often traveled to
California to obtain his supply. In March 2015, he was arrested
there on drug-related charges, which were eventually dismissed in
August 2016 after he became a confidential informant and provided
investigators useful information about his and Dye’s suppliers in
California. Later in 2015, Dean told Dye, who was then in prison in
Georgia, about his cooperation with California law enforcement
officials. Dye was unhappy with Dean’s decision to cooperate, which
resulted in a “falling out” between them. Two friends of Dean’s
testified that Dye had threatened Dean and his family, and that
2 As noted in footnote 1 above, Orlando’s case was severed, and Almon
testified at the trial of the other five co-defendants. Dye and Wright were not
charged in the indictment. The record indicates that about two years after
trial, in 2021, Wright pled guilty to several counts related to the crimes,
including murder.
4
Dean was afraid that Dye would kill him. 3
Lockett, also known as “Tommy G,” had often bought
marijuana from Dean and Dye. Cell phone records showed that at
11:28 a.m. on October 17, 2016, Lockett’s phone called a phone that
was associated with Green, a member of the Gangster Disciples. A
few minutes later, Dean’s phone called Lockett’s phone. One of
Dean’s friends testified that when he visited Dean at his house in
Lithia Springs that morning, Dean was packaging marijuana for
sale, saying that “Tommy G said he wants six pounds.” At 12:04
p.m., Clark’s phone called Wright’s phone, and cell site location
information (“CSLI”) indicated that Clark’s and Lockett’s phones
were near Lockett’s house on Markone Street in Atlanta around that
time. Dean’s phone called Lockett’s phone again at 12:41 p.m.
Lockett’s phone then communicated with Green’s phone several
times. Almon, who worked with Green at a funeral home in
3 Dye testified that he was not a member of the Gangster Disciples and
that he had not threatened Dean. To rebut Dye’s denial of gang membership,
the prosecutor tendered into evidence a March 2016 document from the
Department of Corrections noting that Dye admitted gang membership and
requested to be housed with a fellow Gangster Disciples member.
5
Carrollton, testified that after Green received a phone call at some
point that day, Green asked if Almon “wanted to make some money.”
Almon agreed, and he and Green rode to Atlanta.
Surveillance video recordings from Lockett’s house 4 showed
that around 12:50 p.m., Lockett, Rooks, Clark, and a man who the
prosecutor argued at trial was Wright walked out the back door of
the house, and an Infiniti SUV and a Chevy truck—in which there
was a driver but no passengers—backed out of the driveway.5 CSLI
indicated that Rooks’s cell phone moved away from the area of
Lockett’s house around 1:00 p.m. The surveillance videos showed
that meanwhile, around 1:10 p.m., the truck—which still contained
a driver but no passengers—pulled back into Lockett’s driveway,
and moments later, Lockett went in the back door. At 1:22 p.m.,
Rooks’s phone pinged off a cell tower near the house on Sandy Creek
4 There were four exterior surveillance cameras at Lockett’s house, which
were positioned to video Lockett’s back door, his driveway, the street in front
of the house, and a cross-street.
5 At trial, Lockett, Rooks, and Clark stipulated that they were at
Lockett’s house that day. A photo of Wright was admitted into evidence, and
as discussed below, the jury observed Wright when he testified.
6
Drive in Atlanta, where Xavier lived with his brother Orlando, about
15 minutes away from Lockett’s house. GPS data from Dean’s tan
Toyota Camry and CSLI from his cell phone indicated that Dean
arrived at the Sandy Creek Drive house and called Lockett’s phone
at 1:32 p.m. Lockett’s phone and Wright’s phone then called Rooks’s
phone. CSLI showed that both Rooks’s and Clark’s phones were
near the Sandy Creek Drive house around this time.6
The surveillance videos from Lockett’s house showed that
around 1:50 p.m., the Infiniti SUV returned; moments later, a black
Dodge Charger pulled out of the driveway. CSLI from around this
time showed that Rooks’s phone was near Lockett’s house. The
surveillance videos showed that at 2:06 p.m., Green and Almon
arrived and walked toward Lockett’s house and out of view; a few
minutes later, the Charger pulled in; and Lockett, Rooks, Green, and
Almon went inside the house. Almon testified that when he and
6 The prosecutor argued that this evidence showed that Rooks drove
Clark and Wright in the Infiniti SUV to the Sandy Creek Drive house, while
Lockett went somewhere in the truck and soon returned to his house.
7
Green arrived, Green spoke to a man, whom Almon did not know
but identified at trial as Lockett. Lockett gave Green some money.
Lockett then called Rooks and told him to pick up Green and Almon
and to take them to the house “where the body was.” 7 Rooks, whom
Almon did not know but whom he identified at trial, then drove
Green and Almon in a black Charger to the house on Sandy Creek
Drive. The surveillance videos showed that at 2:11 p.m., Rooks,
Green, and Almon walked out the back door, and the black Charger
pulled out of the driveway. Around this same time, Rooks’s phone
called Wright’s phone three times. Then from 2:16 to 2:31 p.m.,
Rooks’s phone called Lockett’s, Clark’s, and Wright’s phones several
times; the calls to Clark were forwarded to Clark’s voicemail.
Around this same time, Rook’s phone traveled from near Lockett’s
house back to the area of the Sandy Creek Drive house. Wright’s
phone called Rooks’s phone back at 2:33 p.m.8
7 Almon testified on cross-examination that he did not actually hear
Lockett speak to Rooks during the call.
8 The prosecutor argued that this evidence showed that Rooks dropped
8
Almon further testified as follows. Rooks dropped off Green
and Almon at the house on Sandy Creek Drive, and Almon saw a
“gold” Toyota in the driveway. Two men, whom Almon did not know
but identified at trial as Xavier and Wright, came out of the house.
They were not wearing shirts, were sweating, and seemed
“paranoid.” They told Green and Almon that “the body was already
in the trunk,” and “all [they] need[ed] to do [wa]s go inside the house
and wipe down as much as [they] can and take the car and take it
somewhere and burn it up.” Xavier and Wright then left, running
through the wood line behind the house. Green put on a pair of blue
latex gloves and gave another pair to Almon. Green went in the
kitchen, where he told Almon to come look at “[t]he blood and
everything that was over there,” but Almon went to a window to
“keep an eye out.” Green told Almon that the “dead” man, whom
Almon later learned was Dean, was killed “because he was an
off Clark and Wright at the Sandy Creek Drive house; drove the Infiniti SUV
back to Lockett’s house; left again and drove somewhere in the black Charger;
and returned shortly thereafter to pick up Green and Almon and drive them to
the Sandy Creek Drive house.
9
officer.” After a few minutes, Green and Almon decided to leave,
even though they had not “wipe[d] down” the house, and Green
buried his and Almon’s gloves in the backyard. They then got in the
Toyota, and after Almon suggested that they abandon the car rather
than burn it, Green drove to a MARTA station and parked the car.
Green and Almon then walked away from the station, and Green
later gave Almon $500. The GPS data from Dean’s Toyota Camry
confirmed that at 2:37 p.m., the Camry traveled from the house on
Sandy Creek Drive to the Hamilton E. Holmes MARTA station,
where the Camry parked at 2:48 p.m. Surveillance video recordings
from the MARTA station showed that moments later, Green and
Almon walked out of the station.
Surveillance videos from Lockett’s house showed that the black
Charger pulled into the driveway at 2:42 p.m., and Lockett, Rooks,
Clark, and the man the prosecutor asserted was Wright went inside.
Clark and the man the prosecutor asserted was Wright were not
wearing shirts. Later that day, when Dean did not arrive to pick up
his son, one of Dean’s friends called Lockett to inquire whether Dean
10
had delivered marijuana to Lockett; Lockett responded that Dean
“never showed up.”
The next day, October 18, investigators found Dean’s dead body
in the trunk of the Camry at the MARTA station. An autopsy
showed that he had been shot twice in the back of the head—once at
contact range and once at an indeterminate range—which caused
his death. He had extensive abrasions, lacerations, and skull
fractures on the right side of his head, which were consistent with
blunt-force injuries that occurred before he was shot. In the Camry,
investigators found, among other things, papers showing Xavier’s
name, a crowbar, pillows (one of which had a bullet hole in it), a
kitchen-style chair, part of a two-by-four piece of lumber, a sheet and
comforter, a long-handled red dustpan, and several items of
clothing. Testing later showed that a long-sleeved shirt found in the
trunk contained DNA from Dean, Clark, and at least one other,
unknown person; a white T-shirt found in the trunk contained
Clark’s DNA and the DNA of at least two other, unknown people;
and a sweatshirt and jacket found in the trunk contained both
11
Xavier’s and Dean’s DNA, as well as DNA from other, unknown
people.
Investigators reviewed a surveillance video from a store near
the Sandy Creek Drive house, which showed that Xavier had
purchased a long-handled red dustpan around 9:30 a.m. on the day
of the murder. A few weeks after the murder, on November 10, 2016,
investigators searched the Sandy Creek Drive house pursuant to a
warrant. They found large amounts of blood in the kitchen, in a
small room near the kitchen, on the back porch, and in the crawl
space under the house. Testing later showed that blood collected
from the scene belonged to Dean. Investigators also observed couch
pillows and a kitchen-style chair that matched the pillows and chair
found in the trunk of Dean’s Camry. They found part of a two-by-
four piece of lumber that was secured to a door; testing showed that
the lumber found in the Camry originated from the lumber found in
the house. Investigators noticed that the bed in Xavier’s room had
no sheets or comforter on it, and they found a comforter in another
bedroom in the house that was similar to the one found in the
12
Camry’s trunk. Investigators also found blue latex gloves buried in
the backyard.
Investigators arrested Xavier on the day of the search; they
arrested Green and Almon on December 5, 2016. On December 14,
investigators arrested Lockett at a house on Joseph E. Boone
Boulevard in Atlanta. Rooks and Clark were also there, and they
were arrested on marijuana- and firearm-related charges after
investigators found several guns, marijuana, cash, and scales
associated with drug sales in the house. On December 30,
investigators interviewed Clark; the interview was audio-recorded,
and it was later played for the jury. During the interview, Clark
initially said that he did not know anything about the murder, but
he eventually admitted that he was present at the time of the
shooting, saying that he was there “as a lookout”; he was looking out
the back door of the house when he heard two gunshots; and he then
ran through the woods, leaving his shirt at the house.
At trial, a gang expert testified that the Gangster Disciples was
an “organized” gang; members of the gang considered cooperating
13
with law enforcement “snitching”; and an informant could be
“assaulted” or “killed” for “cooperating with law enforcement.”
Another gang expert testified that the Gangster Disciples was a
“structured and traditional type” of gang; respect was important to
members of the gang; and most of the members of the gang sold
drugs and committed other crimes. The State also presented
evidence that Rooks sent an email using symbols and terminology
typically used by the Gangster Disciples; that photos showed Clark
and Green making hand signs associated with the Gangster
Disciples; and that Xavier had a tattoo depicting Gangster Disciples’
symbols and that he sent a text message using Gangster Disciples’
terminology.
The State also presented testimony from a police officer that
on October 28, 2016, 11 days after Dean’s murder, Clark and Wright
were involved in the shooting death of Benjamin Thompson and the
beating of Johnny Caston during a marijuana deal at Lockett’s
house.
(b) The Cases-In-Chief for Rooks, Clark, and Their Co-
14
Defendants
During Lockett’s case-in-chief, he presented testimony from
Wright, who told the following story. On the day of the murder,
Dean called Wright and arranged to purchase four ounces of cocaine,
and Wright and Clark went to the house on Sandy Creek Drive,
where they often hung out, to meet Dean. After Dean arrived, Clark
went into the bathroom. Dean told Wright that he wanted the
cocaine for a lower price than what they had agreed upon, and when
Wright said, “No,” they began to argue. Dean “swung” at Wright;
Wright fought back; but Dean “got the best of [him].” Wright picked
up a two-by-four piece of lumber and struck Dean four or five times.
Dean then pulled out a gun, which Wright took and used to shoot
Dean, who fell to the ground. Wright was afraid that Dean would
continue to fight, so Wright put a pillow over Dean’s face and shot
him again. Clark then came out of the bathroom, and Wright said
that he had shot Dean “to protect [him]self.” Clark began to “panic.”
Green and Almon “showed up,” and after Wright told them what
happened, Almon told him to put Dean’s body in the trunk of Dean’s
15
car, saying, “I’ll try to take it from here.” Clark helped clean blood
off the floor, and Clark, Wright, Green, and Almon put any items
with blood on them in the trunk. Wright and Clark then fled; Rooks
picked them up; and they went to Lockett’s house, where Wright
lived.
Green testified in his own defense and told a story similar to
Wright’s, claiming that on the day of the murder, he and Almon went
to Lockett’s house, where Green traded two cell phones for
marijuana, and then got a ride from Rooks to the house on Sandy
Creek Drive, where Green and Almon planned to hang out. There,
Green encountered Wright and Clark. Wright said that he had just
killed a man, and Almon offered to help Wright put the body in the
trunk of a tan Toyota in the driveway. Green helped Almon put
bloody items in the car. Wright and Clark then fled, and Green and
Almon took the Toyota to the MARTA station and left it there. On
cross-examination, the State presented evidence that during an
interview with investigators, Green provided a written statement
that—in contrast to his testimony at trial—was substantially
16
similar to Almon’s testimony. 9
Rooks also testified in his own defense, telling the following
story. He was friends with Lockett, Clark, and Wright. On the day
of the murder, he went to Lockett’s house to work on his truck; he
then gave Clark and Wright a ride to an apartment complex near
Sandy Creek Drive so that Wright could visit a woman there. After
he returned to Lockett’s house and continued working on the truck,
Green, whom he had seen at Lockett’s house before, and Almon,
whom he did not know, arrived and asked him for a ride to a house
on Sandy Creek Drive where people often hung out and bought
drugs. He dropped them off near the house and then went back to
Lockett’s house. He did not learn that Dean had been murdered
until about two months later. He denied being a member of the
Gangster Disciples, knowing Dean, or being involved in the murder.
On cross-examination, he testified that after he dropped off Green
and Almon, he called Wright and Clark, and Wright asked him to
9 The video recording of Green’s interview, which was admitted into
evidence and played for the jury, is not included in the record on appeal.
17
pick them up at the apartment complex. When they got in Rooks’s
car, they were not wearing shirts, and Clark looked “shocked.”
Rooks’s defense theory was that the State proved only that he
dropped off Almon and Green and picked up Clark and Wright,
which Rooks admitted, and that he did not have any knowledge of
the crimes.
Clark elected not to testify. His theory of defense was that he
was merely present at the house on Sandy Creek Drive when
someone else—likely Wright—murdered Dean.
Contentions Raised by Both Rooks and Clark
2. In his sole enumeration of error, Rooks contends that the
evidence presented at trial was legally insufficient to support his
convictions for malice murder, armed robbery, tampering with
evidence, concealing a death, and participating in criminal street
gang activity; he also claims that the trial court erred by failing to
grant his motion for a directed verdict of acquittal on those counts.
Specifically, he argues that the evidence failed to prove that he
participated in the crimes and instead showed that he merely
18
provided “rides” to Clark, Wright, Green, and Almon. Clark
similarly claims that the trial court erred by failing to grant his
motion for a directed verdict of acquittal on the counts of malice
murder, armed robbery, aggravated assault based on striking Dean,
possession of a firearm during the commission of a felony, and
participating in criminal street gang activity. In this respect, he
argues that because Wright testified that he killed Dean in self-
defense, the State failed to prove that Clark participated in the
crimes. Rooks and Clark do not prevail on these claims. 10
The test established in Jackson v. Virginia, 443 U.S. 307 (99
SCt 2781, 61 LE2d 560) (1979), is the proper standard for evaluating
the sufficiency of the evidence as a matter of constitutional due
process and for evaluating whether the trial court erred by denying
a defendant’s motion for a directed verdict of acquittal. See Fitts v.
State, 312 Ga. 134, 141 (859 SE2d 79) (2021) (explaining that “‘[t]he
10 Clark does not challenge the sufficiency of the evidence supporting his
convictions for tampering with evidence and concealing a death. To the extent
Rooks and Clark challenge the sufficiency of the evidence supporting the
counts for which they were found guilty but not convicted, those challenges are
moot. See, e.g., Beamon v. State, 314 Ga. 798, 801 n.2 (879 SE2d 457) (2022).
19
standard of review for the denial of a motion for a directed verdict of
acquittal is the same as for determining the sufficiency of the
evidence to support a conviction’”) (citation omitted). Under that
test, we view all of the evidence presented at trial in the light most
favorable to the verdicts and consider whether any rational juror
could have found the defendant guilty beyond a reasonable doubt of
the crimes of which he was convicted. See Jackson, 443 U.S. at 319;
Fitts, 312 Ga. at 141. “This ‘limited review leaves to the jury the
resolution of conflicts in the evidence, the weight of the evidence, the
credibility of witnesses, and reasonable inferences to be made from
basic facts to ultimate facts.’” Muse v. State, 316 Ga. 639, 647 (889
SE2d 885) (2023) (citation omitted).
In addition, “[e]very person concerned in the commission of a
crime is a party thereto and may be charged with and convicted of
commission of the crime.” OCGA § 16-2-20 (a). A person is
concerned in the commission of a crime if he, among other things,
“[d]irectly commits the crime” or “[i]ntentionally aids or abets” in its
commission. OCGA § 16-2-20 (b) (1) & (3). “‘Conviction as a party
20
to a crime requires proof of a common criminal intent, which the jury
may infer from the defendant’s presence, companionship, and
conduct with another perpetrator before, during, and after the
crimes.’” Muse, 316 Ga. at 648 (citation omitted). Mere presence at
the crime scene, however, “‘is insufficient to make someone a party
to a crime.’” Id. (citation omitted).
Here, the evidence presented at trial, when properly viewed in
the light most favorable to the jury’s verdicts, showed that Rooks
and Clark intentionally assisted Lockett and the other co-
defendants in carrying out the plan to kill Dean because Dean was
believed to be a police informant. Several witnesses testified that
Dye, a member of the Gangster Disciples, threatened Dean after he
learned that Dean provided information to investigators about his
and Dye’s marijuana suppliers in California. And the State
presented evidence that Lockett, who had often bought marijuana
from Dean and Dye, orchestrated Dean’s killing, directing Rooks,
Clark, Xavier, and Green, who were associates of the Gangster
Disciples, to participate in the crimes.
21
In this respect, the CSLI, phone records, and surveillance
videos from Lockett’s house indicated that shortly before Dean was
killed, Rooks drove Clark and Wright from Lockett’s house to the
Sandy Creek Drive house, where he dropped them off. Dean then
arrived at the Sandy Creek Drive house; moments later, Lockett and
Wright called Rooks; and CSLI indicated that Clark was near the
Sandy Creek Drive house. While Dean was being beaten and killed
at the Sandy Creek Drive house, Rooks drove back to Lockett’s
house, where he—at Lockett’s direction—picked up Green and
Almon and drove them to the Sandy Creek Drive house, making
several calls to Lockett, Clark, and Wright; the calls to Clark were
forwarded to Clark’s voicemail. Rooks dropped off Green and Almon
at the Sandy Creek Drive house, and Xavier and Wright instructed
them to clean up the crime scene; take Dean’s car, which contained
Dean’s body and other evidence of the crimes; and burn the car
(although Green and Almon actually left it at the MARTA station).
Rooks then picked up Clark and Wright, who had removed their
shirts, near the Sandy Creek Drive house and drove them back to
22
Lockett’s house. And investigators found two shirts in Dean’s trunk
that contained Clark’s DNA.
Moreover, Clark initially lied during his interview with
investigators—saying that he did not know anything about Dean’s
murder—but later admitted that he acted “as a lookout” during the
crimes and that he heard two gunshots (though he claimed that he
then fled). And Rooks testified that he drove Clark and Wright, and
then Green and Almon, to the area near the Sandy Creek Drive
house and that he later picked up Clark and Wright (though Rooks
claimed that he was not involved in the crimes).
Based on its assessment of the evidence and the reasonable
inferences to be drawn from it, the jury was authorized to reject
Rooks’s claim that he was merely an unwitting driver and Wright’s
story that he alone killed Dean in self-defense, and to conclude
instead that Rooks and Clark shared a common criminal intent with
their co-defendants to beat and kill Dean, take his car, and cover up
the crimes. Accordingly, the evidence was sufficient as a matter of
due process to authorize the jury to find Rooks guilty beyond a
23
reasonable doubt at least as a party to the crimes of malice murder,
armed robbery, tampering with evidence, and concealing a death,
and the trial court did not err by denying his motion for a directed
verdict on those counts. See Jackson, 443 U.S. at 319. See also, e.g.,
Muse, 316 Ga. at 647-648 (explaining that to prove a defendant’s
guilt as a party to a crime, the State is not required to prove that the
defendant personally fired at the victim); White v. State, 298 Ga.
416, 418 (782 SE2d 280) (2016) (holding that “[t]he fact that [the
defendant] was merely the driver and did not actually fire the gun”
that killed the victim did not undermine the legal sufficiency of the
evidence, which showed that the defendant shared a common
criminal intent with the shooter and was thus a party to the crime
of malice murder). The evidence was likewise constitutionally
sufficient to authorize the jury to find Clark guilty beyond a
reasonable doubt at least as a party to the crimes of malice murder,
armed robbery, aggravated assault based on striking Dean, and
possession of a firearm during the commission of a felony, so the trial
court did not err by denying his motion for a directed verdict on those
24
counts. See Jackson, 443 U.S. at 319; Muse, 316 Ga. at 648. See
also, e.g., Blackshear v. State, 309 Ga. 479, 483-484 (847 SE2d 317)
(2020) (holding that evidence that the defendant was near the crime
scene around the time of the victim’s murder, his fingerprints were
found at the scene, and he admitted to investigators that he served
as a lookout while others robbed and killed the victim was
constitutionally sufficient to support his convictions for malice
murder and robbery).
The evidence also was constitutionally sufficient for a jury to
find Rooks and Clark guilty of the criminal street gang crimes of
which they were convicted. To establish that Rooks and Clark
participated in criminal street gang activity under OCGA § 16-15-4
(a), the State was required to prove four elements:
(1) the existence of a “criminal street gang,” defined in
OCGA § 16-15-3 (3) as “any organization, association, or
group of three or more persons associated in fact, whether
formal or informal, which engages in criminal gang
activity”; (2) the defendant’s association with the gang; (3)
that the defendant committed any of several enumerated
criminal offenses, including those “involving violence,
possession of a weapon, or use of a weapon”; and (4) that
the crime was intended to further the interests of the
25
gang.
Blocker v. State, 316 Ga. 568, 574-575 (889 SE2d 824) (2023)
(citation and punctuation omitted).
With respect to the first element, gang experts testified, among
other things, that the Gangster Disciples was a structured,
“traditional” gang and that members committed an array of criminal
activity, including drug trafficking, fraud, robbery, assault, and
murder. See OCGA § 16-15-3 (1) (defining “[c]riminal gang activity”
as committing several enumerated offenses, including racketeering
and any crime that involves violence). As to the second element, the
State presented evidence that Rooks sent an email using symbols
and terminology typically used by the Gangster Disciples and that
Clark made hand signs associated with the Gangster Disciples. And
as to the third and fourth elements, as discussed above, the evidence
indicated that Dye, a Gangster Disciples member, threatened Dean
because he had provided information to investigators about certain
marijuana suppliers and that Lockett, who had often bought
marijuana from Dye and Dean, orchestrated Dean’s killing with
26
Rooks and Clark. In addition, the State presented evidence that
Gangster Disciples members considered cooperating with law
enforcement “snitching” and that an informant could be “assaulted”
or “killed” for “cooperating with law enforcement.” The evidence
presented at trial thus supported the jury’s findings that the
Gangster Disciples was a criminal street gang; that Rooks and Clark
were associated with the gang; that by participating in Dean’s
killing, they committed a crime “involving violence, possession of a
weapon, or use of a weapon”; and that they committed that crime to
further the gang’s interests. Accordingly, the evidence was
sufficient to authorize the jury to find Rooks and Clark guilty beyond
a reasonable doubt of participating in criminal street gang activity,
and the trial court did not err by denying their motions for a directed
verdict on that count. See Blocker, 316 Ga. at 575-576 (explaining
that a “‘nexus between the [criminal] act and the intent to further
street gang activity . . . can be established by proof of the defendant’s
association with a gang and participation in its activities before and
during the crimes charged’”) (citation omitted); Dixon v. State, 309
27
Ga. 28, 34 (843 SE2d 806) (2020) (holding that a gang expert’s
testimony that the “Bloods,” including its subset “Slime,” was a
criminal street gang; photos showing the defendant making Slime
hand signs; and evidence that the defendant killed the victim to
retaliate against him for disrespecting Slime, sufficiently
established the elements of OCGA § 16-15-4 (a) and thus authorized
the jury to find him guilty of participating in criminal street gang
activity).11
Contentions Raised Only by Clark
3. Clark claims that the trial court abused its discretion by
11 Rooks also briefly claims that the evidence presented at trial was
insufficient under OCGA § 24-14-6, which says “[t]o warrant a conviction on
circumstantial evidence, the proved facts shall not only be consistent with the
hypothesis of guilt, but shall exclude every other reasonable hypothesis save
that of the guilt of the accused.” The circumstantial evidence in this case was
consistent with the State’s theory that Rooks was a party to the crimes, and it
authorized the jury to exclude as unreasonable his hypothesis that he
unknowingly assisted in the commission of the crimes by giving Clark, Wright,
Green, and Almon “rides” to and from the Sandy Creek Drive house. The
evidence was therefore sufficient under OCGA § 24-14-6 to support Rooks’s
convictions. See, e.g., Muse, 316 Ga. at 650 (explaining that “‘where the jury
is authorized to find that the evidence, though circumstantial, was sufficient
to exclude every reasonable hypothesis save that of the guilt of the accused, we
will not disturb that finding unless it is insupportable as a matter of law’”)
(citation omitted).
28
denying his motion for new trial on the “general grounds” set forth
in OCGA §§ 5-5-20 and 5-5-21. See Drennon v. State, 314 Ga. 854,
860 (880 SE2d 139) (2022) (“Even when the evidence is legally
sufficient to sustain a conviction, a trial judge may grant a new trial
if the verdict of the jury is ‘contrary to . . . the principles of justice
and equity,’ OCGA § 5-5-20, or if the verdict is ‘decidedly and
strongly against the weight of the evidence.’ OCGA § 5-5-21.”)
(citation and punctuation omitted). But as we have explained, “‘[t]he
merits of the trial court’s decision on the general grounds are not
subject to our review,’ and the decision to grant a new trial on the
general grounds ‘is vested solely in the trial court.’” King v. State,
316 Ga. 611, 616 (889 SE2d 851) (2023) (citations omitted). Thus,
this claim presents nothing for our review.12
4. Clark also contends that the trial court abused its discretion
12 Clark does not contend that the trial court applied an incorrect
standard in reviewing his general-grounds claim. We also note that we need
not determine in this case the propriety of our past practice of reviewing a
general-grounds claim under the sufficiency-of-the-evidence standard set forth
in Jackson v. Virginia, because as we concluded in Division 2 above, the
evidence was constitutionally sufficient to support Clark’s convictions. See
King, 316 Ga. at 617 n.8. See also Muse v. State, 316 Ga. 639, 653 n.6 (889
SE2d 885) (2023).
29
by admitting evidence showing that he participated in another
murder on October 28, 2016 (11 days after Dean’s murder) and that
he committed marijuana- and firearm-related crimes on December
14, 2016 (about two months after Dean’s murder). Over Clark’s
objections, the trial court admitted this evidence under Rule 404 (b)
for the purposes of proving his intent, motive, opportunity, and
knowledge. As discussed below, we see no abuse of discretion in the
admission of the evidence related to the October 28 incident for the
purpose of showing intent under Rule 404 (b). And even assuming
without deciding that the trial court abused its discretion by
admitting the evidence of the marijuana- and firearm-related crimes
on December 14, any such error was harmless.
(a) We first address the admission of the evidence of the
October 28 incident. As mentioned above, at Rooks and Clark’s joint
trial with their co-defendants, the State presented evidence about
the October 28 incident—in the form of testimony from a police
officer who investigated the incident—showing that Clark and
Wright were involved in the shooting death of Benjamin Thompson
30
and the beating of Johnny Caston during a marijuana deal at
Lockett’s house. The officer testified as follows. Around 9:00 p.m.
on October 28, 2016, her supervisor notified her that a homicide had
occurred at an address on Markone Street, and when she responded
to that address—Lockett’s house—she found Thompson’s body in the
kitchen. She reviewed the surveillance video recordings from
outside the house, which showed that Lockett left the house shortly
before Clark let Thompson and Caston in, and moments later, Clark
and Wright pushed Caston out the door as they “pistol whipped”
him. The officer’s investigation indicated that Wright was the
shooter; Wright was arrested while fleeing from the scene; and
Wright and Clark were charged with crimes related to the murder.13
On cross-examination, the officer testified that her investigation
showed that Clark was “shock[ed]” by the shooting. In addition,
Wright testified about the incident during his direct examination,
claiming that he had arranged to meet Thompson at Lockett’s house
13 The police officer did not specify the crimes with which Clark and
Wright were charged.
31
to buy children’s clothing; when Thompson and Caston arrived, they
pulled guns on him and tried to rob him; Wright grabbed his own
gun; and as Clark struggled with Caston, Wright shot Thompson in
self-defense.
(i) Under Rule 404 (b), “[e]vidence of other crimes, wrongs,
or acts shall not be admissible to prove the character of a person in
order to show action in conformity therewith,” but such evidence is
admissible for other purposes, including to prove intent, motive,
opportunity, and knowledge. A party offering evidence under Rule
404 (b) must show three things:
(1) the evidence is relevant to an issue in the case other
than the defendant’s character; (2) the probative value of
the evidence is not substantially outweighed by its undue
prejudice; and (3) there is sufficient proof for a jury to find
by a preponderance of the evidence that the defendant
committed the other act.
Kirby v. State, 304 Ga. 472, 479 (819 SE2d 468) (2018). Clark does
not dispute that the trial court properly concluded that the State
met the third part of the Rule 404 (b) test, and we agree.
Accordingly, we analyze below whether the evidence of the October
32
28 incident satisfied the other two parts of the test.
(ii) In evaluating the first part of the test, we look to OCGA
§ 24-4-401, which defines “relevant evidence” as evidence that “ha[s]
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.” Relevance “is a binary
question—evidence is either relevant or it is not.” Kirby, 304 Ga. at
480.
Here, Clark pled not guilty to the charged crimes and did not
otherwise take affirmative steps to remove intent as an issue in the
case. Indeed, Clark’s claim that he was merely present when Wright
or someone else killed Dean meant that the State had to prove that
he shared a common criminal intent with his co-defendants so as to
negate any non-inculpatory explanation for his presence at the
Sandy Creek Drive house. See OCGA § 16-2-20 (defining parties to
a crime). And Clark’s participation in shooting Thompson and
beating Caston during the October 28 incident involved the same
sort of intent as some of the charged crimes, including malice
33
murder, felony murder based on aggravated assault, and the counts
of aggravated assault based on shooting and striking Dean. Thus,
the trial court did not abuse its discretion by concluding that the
evidence of the October 28 incident was relevant to the issue of
intent under the first part of the Rule 404 (b) test. See Booth v.
State, 301 Ga. 678, 683 & n.3 (804 SE2d 104) (2017) (explaining that
“[w]here the intent required for the charged offenses and other acts
is the same, and intent is at issue, the first prong of the Rule 404 (b)
test is satisfied” and noting that the appellant put intent at issue by
pleading not guilty and asserting a mere presence defense). See also
Moon v. State, 312 Ga. 31, 52-53 (860 SE2d 519) (2021) (concluding
that evidence that the appellant committed a prior aggravated
assault was relevant to prove his intent to commit with his co-
defendant the charged crimes of aggravated assault and felony
murder based on that crime, because the State was required to show
that the appellant shared his co-defendant’s intent to violently
injure the victims or to place them in reasonable apprehension of
immediately receiving a violent injury); Frazier v. State, 309 Ga.
34219, 226 (845 SE2d 579) (2020) (explaining that to prove malice
murder, the State must establish malicious intent and concluding
that the appellant’s involvement in a prior shooting was relevant to
show that he had the malicious intent to kill the victim of the
charged crimes). 14
(iii) The second part of the Rule 404 (b) test is governed by
OCGA § 24-4-403 (“Rule 403”), which says that “[r]elevant evidence
may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” Because the
primary function of Rule 403 is to “‘exclude matter of scant or
cumulative probative force, dragged in by the heels for the sake of
its prejudicial effect,’ the trial court’s decision to exclude evidence
14 Because the evidence of the October 28 incident was relevant to prove
intent, we need not decide whether it was also relevant for other purposes, as
the trial court found. See Thompson v. State, 308 Ga. 854, 859 n.6 (843 SE2d
794) (2020). Clark does not contend that the trial court’s limiting instruction,
which told the jury it could consider the evidence for the additional purposes
of proving motive, opportunity, and knowledge, was improper. See id.35
under Rule 403 is ‘an extraordinary remedy which should be used
only sparingly.’” Kirby, 304 Ga. at 480 (citation omitted). “‘Factors
to be considered in determining the probative value of other act
evidence offered to prove intent include its overall similarity to the
charged crime, its temporal remoteness, and the prosecutorial need
for it.’” Mitchell v. State, Case No. S23A0599, 2023 WL 5338775, at
*4 (decided Aug. 21, 2023) (citation omitted). See also Kirby, 304
Ga. at 481.
Here, the October 28 incident and the charged crimes had
significant similarities. In both cases, there was evidence that the
victims arranged to conduct a marijuana deal and that at some point
during the deal, Clark and Wright were involved in beating and
shooting the victims, killing Thompson and Dean. Both incidents
also involved Lockett’s house as a sort of base of operations. On the
other hand, there were also differences between the October 28
incident and the charged crimes. In the October 28 incident, there
was no evidence indicating that the motive for the beating and
shooting was retributive, whereas the evidence of the charged
36
crimes showed that Clark and his co-defendants killed Dean to
punish him for cooperating with investigators in California. Even
so, that difference was not so significant that it was an abuse of
discretion for the trial court to conclude that the similarities gave
the evidence of the October 28 incident substantial probative value.
See Mitchell, 2023 WL 5338775, at *4. Nor was the significant
probative value of the evidence diminished by temporal remoteness,
as the October 28 incident occurred only 11 days after Dean’s
murder. See id. (noting that other-act evidence “carries more
probative value where less time separates it from the charged
offense”).
The State’s need for the evidence relating to the October 28
incident further strengthened its probative value. Clark’s defense
to the charged crimes was that he was merely present at the Sandy
Creek Drive house when someone else—Wright—shot and killed
Dean. By asserting that he was merely present and did not share
his co-defendants’ criminal intent to murder Dean, Clark made
intent a crucial issue at trial. And although the other evidence of
37
Clark’s guilt—which included evidence showing that he was with
Lockett, Rooks, and Wright before and after the murder, he was at
the Sandy Creek Drive house near the time of the murder, and his
DNA was on clothing in the trunk of Dean’s car—was not slight, the
State had no direct evidence that Clark participated in the crimes
other than his statement to investigators that he acted “as a
lookout,” but fled soon after he heard gunshots. See, e.g., id.(concluding that the State had an important prosecutorial need for
other-act evidence to prove intent where the appellant argued that
he was merely present at the crime scene and did not share the
intent of the primary assailant); Moon, 312 Ga. at 56 (determining
that the prosecutorial need for other-act evidence was significant
because most of the evidence against the appellant was
circumstantial and only his co-defendant had a motive to kill the
victim, and evidence that the appellant shared his co-defendant’s
criminal intent was therefore “crucial” to proving the appellant’s
guilt).
On balance, the similarities between the October 28 incident
38
and the charged crimes, the close temporal proximity between the
incidents, and the high prosecutorial need for the evidence provided
significant probative value to the other-act evidence. And although
the evidence that Clark had participated in another murder was
highly prejudicial, the evidence was not a “‘matter of scant or
cumulative probative force, dragged in by the heels for the sake of
its prejudicial effect.’” Kirby, 304 Ga. at 484 (citation omitted). See
also Thompson v. State, 308 Ga. 854, 860 (843 SE2d 794) (2020)
(explaining that “‘[i]n a criminal trial, inculpatory evidence is
inherently prejudicial; it is only when unfair prejudice substantially
outweighs probative value that [Rule 403] permits exclusion’”)
(citation omitted). Moreover, the evidence of the October 28 incident
was not overly emphasized at trial, and Clark elicited testimony
from the police officer that supported his theory of defense—namely,
that Wright was the shooter and that Clark was “shock[ed]” by the
shooting. In addition, the jury learned that Clark was being
prosecuted for crimes related to the incident. See Strong v. State,
309 Ga. 295, 311 (845 SE2d 653) (2020) (explaining that the fact that
39
the jury believed that the appellant had “escaped any punishment”
for other crimes he had committed increased the risk that the jury
would want to punish him for his past conduct rather than only for
the charged crimes). And before the officer testified about the
incident, the trial court gave the jury a specific instruction about the
limited purpose of the other-act evidence, and we presume that the
jury followed that instruction. See Thompson, 308 Ga. at 860.
Under these circumstances, we cannot say that the trial court
abused its discretion under Rule 403 by determining that the
probative value of the other-act evidence was not substantially
outweighed by undue prejudice. See id. See also Kirby, 304 Ga. at
484-485.
In sum, Clark has not established that the trial court abused
its discretion under Rule 404 (b) by admitting the evidence of the
October 28 incident. See, e.g., Frazier, 309 Ga. at 226-227; Kirby,
304 Ga. at 485.15
15 In its order denying Clark’s motion for new trial, the trial court
concluded that the evidence of the October 28 incident was admissible as
40
(b) We now turn to the admission of the evidence about the
December 14 incident, which showed that Clark was arrested (with
Rooks) at a house on Joseph E. Boone Boulevard and charged with
marijuana- and firearm-related offenses after investigators found
several guns, marijuana, cash, and scales associated with drug sales
in the house.
At a hearing on the admission of this evidence, the prosecutor
argued, among other things, that the evidence was relevant for the
purposes of proving Clark’s intent, motive, opportunity, and
knowledge, because Dean sold large quantities of marijuana and
Clark was “in that lifestyle.” Specifically, the prosecutor asserted
intrinsic evidence and because it satisfied OCGA § 24-4-418 (“Rule 418”), which
says that evidence of a defendant’s commission of criminal gang activity shall
be admissible in a criminal proceeding in which he is accused of violating
OCGA § 16-15-4, but that the State generally must provide notice of its intent
to offer such evidence at least 10 days before trial. We note, however, that the
State did not provide separate pretrial notice of its intent to offer this evidence
under Rule 418, and some of us are skeptical of the State’s argument in its
briefing here that its pretrial notice of intent to tender this evidence for Rule
404 (b) purposes also satisfied Rule 418’s notice requirement. But because we
have concluded above that the evidence was admissible under Rule 404 (b), we
need not decide whether the evidence was admissible for these other purposes.
See OCGA § 24-4-418 (c) (“This Code section shall not be the exclusive means
to admit or consider evidence described in this Code section.”).
41
that the evidence showed that Clark had the intent and motive to
rob Dean, “knowing that he [had] access to marijuana in large
quantities;” that Clark had the opportunity to rob Dean, because
“these co-defendants are all kind of in that lifestyle” and “they ha[d]
the opportunity to be at the incident location on that date at that
time”; and that Clark had knowledge of a “particularized sort of set
of skills” “specific to that lifestyle, the lifestyle of selling marijuana
and other drugs.” 16 Over Clark’s objections, the trial court
summarily ruled that the evidence of the December 14 incident was
admissible.17
At trial, the prosecutor presented testimony from four
investigators about the December 14 incident and introduced 35
photos of evidence seized from the house on Joseph E. Boone
16 The prosecutor also confusingly argued that the other-act evidence
showed that Clark had knowledge “that [the co-defendants’] action of intending
to rob . . . Dean and all their other acts, sale of narcotics, et cetera, would be
probative to show that they acted with knowledge.”
17 The prosecutor also sought to introduce this other-act evidence against
Rooks and Lockett, and the trial court ruled that the evidence was admissible
with respect to them as well. However, Rooks does not challenge the
admissibility of this evidence in his appeal.
42
Boulevard. First, an investigator testified that he assisted with
executing a warrant at the house in order to locate and arrest
Lockett, whose cell phone was pinging at that location, on charges
in this case and that during a search of the house, he found five guns,
including a handgun and a rifle that were hidden in an air vent, cash
in the living room and in a freezer in the kitchen; an extended
magazine for a semiautomatic pistol; bags of marijuana; and scales.
The prosecutor then tendered into evidence 31 photos taken during
the search, which included photos of the guns and cash in the areas
in which they were found in the house and photos of the guns, cash,
bags of marijuana, and scales set out on tables at a police station.
Second, another investigator who assisted in the search testified
that he found a gun in an air vent and a bag of cash in one of the
bedrooms, and the prosecutor introduced four photos depicting that
evidence. A third investigator testified as follows. When
investigators arrived at the house and knocked, no one answered;
investigators could hear people inside “running around,” so they
“threw a flash-bang” device; and then Lockett, Clark, and Rooks
43
came out of the house. Investigators found marijuana, cash, and a
gun when they “cleared the house,” so they arrested Clark and Rooks
on marijuana- and firearm-related charges and obtained a warrant
to search the house. Finally, another investigator testified that after
the search of the house, Clark and Rooks were arrested “on drug and
weapon charges” and that they were later charged with the crimes
at issue in this case.18 In addition, Rooks testified that Clark lived
at the house on Joseph E. Boone Boulevard; Lockett sold marijuana;
and Rooks knew there was marijuana in the house. The trial court
did not provide a limiting instruction before the presentation of any
of the evidence related to the December 14 incident, but the court
later provided instructions about evidence of other acts before one of
the gang experts testified and during its final charge to the jury.19
18 Although, as noted above, Clark objected to the admission of the
marijuana- and firearm-related evidence at the hearing on its admissibility,
thus preserving this claim for ordinary appellate review, see, e.g., Heard v.
State, 309 Ga. 76, 85 n.12 (844 SE2d 791) (2020), he did not raise any additional
objections to the investigators’ testimony or to the photos.
19 Specifically, before one of the gang experts testified, the trial court
instructed, in pertinent part:
44
Assuming without deciding that the trial court abused its
discretion by admitting the marijuana- and firearm-related
Sometimes evidence is admitted for a limited purpose. Such
evidence may be considered by the jury for the sole issue or purpose
against that party for which the evidence is limited and not for any
other purpose.
In order to prove Count 1 of their case, the State must show
participation in or association with a criminal street gang. To do
so[,] the State has offered or will be offering evidence of other acts
allegedly committed by one or more of the defendants. You are
permitted to consider that evidence only insofar as it may relate to
your consideration of the elements of the offense as to each of the
defendants in this case and not for any other purpose. You may
not infer from such evidence that any defendant is of a character
that would commit such acts. The evidence may be considered only
to the extent that it may show the elements that the State is
required to prove in the crime charged in Count 1 . . . of the
indictment for this case now on trial.
The defendants are on trial for offenses charged in the bill of
indictment only and not for any other acts, even though such acts
may incidentally be criminal.
During the final charge, the court instructed:
The State has offered evidence of other crimes, wrongs[,] or acts
allegedly committed by a defendant. You are permitted to consider
that evidence only insofar as it may relate to issues presented in
the case and not for any other purpose. You may not infer from
such evidence that the defendant is of a character that would
commit such crimes. The defendant is on trial for the charges
contained in this bill of indictment only and not for any other acts.
Before you may consider any other alleged acts for the limited
purpose as stated, you must first determine whether it is more
likely than not that the accused committed the other alleged acts.
45
evidence, any such error was harmless. 20 “The test for determining
nonconstitutional harmless error is whether it is highly probable
that the error did not contribute to the verdict.’” Kirby, 304 Ga. at
478 (citation and punctuation omitted). “‘In determining whether
the error was harmless, we review the record de novo and weigh the
evidence as we would expect reasonable jurors to have done so.’” Id.20 Although we do not decide whether the trial court abused its discretion
by admitting the evidence, we note that the evidence was not admissible to
prove the Rule 404 (b) purposes that the prosecutor mentioned at the hearing.
The evidence was not relevant to prove Clark’s intent, motive, or opportunity
to rob Dean of marijuana, because the indictment in this case did not allege
that Clark and his co-defendants committed armed robbery (or felony murder
based on that crime) by taking marijuana from Dean. Rather, the armed-
robbery count alleged that they took Dean’s “Toyota Camry motor vehicle.”
Nor was the evidence that Clark possessed marijuana and firearms with some
of his co-defendants relevant to show that Clark had a “particularized sort of
set of skills” “specific to . . . the lifestyle of selling marijuana and other drugs,”
as the prosecutor alleged. See Pritchett v. State, 314 Ga. 767, 777 (879 SE2d
436) (2022) (explaining that “‘knowledge’ under Rule 404 (b) refers to ‘a special
skill like safecracking, bomb-making, or document forgery or to specific
knowledge based on past experience’” and holding that the trial court abused
its discretion by admitting other-act evidence that the appellant had previously
committed a shooting because the “incident provided no specialized knowledge
to [the appellant] about how to shoot someone inside a house, nor does it
support that [he] had any ‘specific knowledge’ based on the experience about
how to shoot someone inside a house”) (citation omitted). The prosecutor’s
focus on Clark’s “lifestyle” was a classic, impermissible propensity argument.
See, e.g., id. at 777-778 (concluding that the prosecutor’s assertion that other-
act evidence was admissible to show that the appellant had the motive “‘to use
violence to control anyone around him’” was an improper propensity
argument).
46
(citation omitted).
The evidence that Clark committed the crimes of which he was
convicted was strong. The surveillance videos from Lockett’s house
showed that Clark was with Lockett and Rooks shortly before Dean’s
murder; CSLI showed that he was in the area of the Sandy Creek
Drive house around the time of the murder; and the surveillance
videos showed that he was with Lockett and Rooks just after the
murder and that he had removed his shirt. Clark’s DNA was found
(along with Dean’s DNA) on two shirts that were in the trunk of
Dean’s car, with his dead body. And significantly, Clark initially
lied during his interview with investigators but eventually admitted
that he acted as a “lookout” during the crimes—an admission that
itself defeated any assertion of “mere presence.”
On the other hand, the State presented a significant amount of
evidence about Clark’s possession of marijuana and firearms on
December 14, which had some prejudicial force. See Strong, 309 Ga.
at 317 (explaining that when an appellant’s trial for the charged
crimes “devolve[s] into a series of mini-trials of him” for other crimes
47
he allegedly committed, it risks confusing the jury, distracting it
from its task of determining the appellant’s guilt as to the charged
crimes, and unfairly prejudicing the appellant). But this prejudice
was lessened for several reasons. First, the jury learned that Clark
had been arrested on December 14 and charged with marijuana- and
firearm-related crimes, thus limiting the risk that the jury convicted
him of murder and the other charged crimes in this case to punish
him for his possession of marijuana and firearms. See id. at 311.
The prosecutor did not mention the marijuana- and firearm-related
evidence during closing argument. See Jackson v. State, 306 Ga. 69,
80-81 (829 SE2d 142) (2019) (holding that the erroneous admission
of evidence that the appellant participated in another shooting was
harmless in light of the other strong evidence showing his guilt and
the fact that there was no indication that the prosecutor emphasized
the erroneously admitted evidence during closing argument).
Moreover, the trial court instructed the jury that it could not infer
from evidence that a defendant committed acts other than those
alleged in the indictment that the defendant was “of a character that
48
would commit such acts,” and we presume that the jury followed
that instruction. See Nundra v. State, 316 Ga. 1, 8 (885 SE2d 790)
(2023) (explaining that the trial court’s instruction that the jury
could not infer from other-act evidence that the appellant was “‘of a
character that would commit such crimes,’” lowered the risk that the
jury would convict for the wrong reasons, even though the
instruction “did not meaningfully explain for which permissible
purpose the evidence was relevant”). In addition, the properly
admitted evidence that Clark “pistol whipped” Caston and
participated in Thompson’s murder with Wright during a marijuana
deal on October 28 made the jury aware that Clark had committed
other marijuana- and firearm-related crimes, and that evidence was
of a more violent nature than the evidence that Clark possessed
marijuana and guns two months later. See Kirby, 304 Ga. at 487.
In sum, given the overall strength of the other evidence of
Clark’s guilt, it is highly probable that any error in the admission of
the evidence showing that Clark possessed marijuana and firearms
did not contribute to the jury’s guilty verdicts. See, e.g., Priester v.
49
State, 316 Ga. 133, 138-139 (886 SE2d 805) (2023) (concluding that
any error in the admission of evidence that the appellant committed
an armed robbery and shot at a car during a drug deal on the day
before he committed the charged crimes was harmless, given that
the trial court instructed the jury that it could not infer propensity
from that evidence and that the other evidence of his guilt was
strong); Nundra, 316 Ga. at 6-9 (holding that any error in the
admission of other-act evidence that the appellant committed armed
robbery and hijacking a motor vehicle was harmless, because the
evidence of his guilt was very strong, the jury learned that he had
pled guilty to those crimes, and the trial court instructed the jury
that it could not infer from the evidence the appellant’s propensity
to commit crimes); Pritchett v. State, 314 Ga. 767, 778-780 (879 SE2d
436) (2022) (acknowledging that the erroneous admission of other-
act evidence regarding three incidents (which showed that the
appellant committed aggravated assault and disorderly conduct and
hit his girlfriend) “carried a risk of prejudice to [the appellant] in no
small part because the State chose to emphasize the three prior
50
incidents through the first four witnesses that it called at trial,” but
concluding that the error was harmless because the evidence of the
appellant’s guilt was substantial, the prosecutor did not emphasize
the evidence during closing argument, and the trial court instructed
the jury as to the limited purposes for which it could consider the
evidence). Accordingly, this claim fails.
Judgments affirmed. All the Justices concur.
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