Jamie Courtney Wright v. State ( 2022 )

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
March 2, 2022
In the Court of Appeals of Georgia
A21A1655. WRIGHT v. THE STATE.
PHIPPS, Senior Appellate Judge.
A jury found Jamie Courtney Wright guilty of two controlled substance
offenses and two firearm offenses. Wright appeals from the denial of his motion for
a new trial, arguing that: (i) the trial court erred when it admitted (a) statements he
made while detained by law enforcement officers without the benefit of Miranda1
warnings and (b) evidence concerning prior convictions entered after he pled guilty
to controlled substance and firearm offenses; and (ii) the evidence was insufficient
to support his convictions. For the reasons that follow, while we reject Wright’s
challenges to the admission of statements he made to officers and to the sufficiency
1
Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
of the evidence, we agree that the trial court improperly admitted the facts underlying
Wright’s prior guilty pleas, and we reverse his present convictions on that basis.
On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, and the defendant no longer enjoys a presumption of
innocence. Krauss v. State, 263 Ga. App. 488, 488 (1) (588 SE2d 239) (2003). So
viewed, the evidence shows that, in November 2015, a narcotics investigator and
other law enforcement officers arrived at a home in Richmond County in search of
a fugitive. The homeowner let the officers in and gave consent to search the home.
In addition to the homeowner, Wright and another person were in the home at the
time. After Wright emerged from a bedroom, the investigator asked him to wait with
the other occupants on a screened-in porch. Another officer stood in the yard, “a few
feet from the steps leading onto the porch” at that time.
Upon entering the room Wright had vacated, which was now unoccupied, the
investigator found a black book bag behind the door. On top of the open book bag’s
other contents lay a one-gallon plastic bag with more than 47 grams of a green, leafy
substance that the investigator initially believed was marijuana but later learned
contained a synthetic cannabinoid known as “spice.” The investigator then walked
out to the porch, where all three occupants were waiting, and asked “who did the bag
2
belong to.” At that time, the investigator did not describe the bag he was asking
about. Wright, the only one to respond, said that the bag was his. To confirm which
bag he was asking about, the investigator retrieved the black book bag and asked
Wright if it was his. The record contains no indication that any of the bag’s contents
were visible to Wright or the others on the porch at that time. Wright responded,
“Yeah, that’s my bag and everything in it,” and he added that the others on the porch
“didn’t have anything to do with it.”
After obtaining Wright’s consent to search the bag, the investigator found a
handgun, a digital scale, a rolled-up dollar bill with oxycodone powder on it, and 38
smaller bags of “spice.” During a search incident to Wright’s ensuing arrest, officers
also found $605 in small denominations. No personal-use drug paraphernalia — such
as rolling papers or smoking devices — was found in the black book bag or on
Wright’s person. The investigator testified at trial as an expert in narcotics
investigation that everything he found was consistent with distribution and not
personal use.
Wright testified that he had been dropped off at the home where he was
arrested approximately one hour before law enforcement arrived. He claimed that the
only bag he had with him at that time was a small red and black bag that contained
3
diapers and other items for his child, and that neither the black book bag at issue here
— which he knew nothing about — nor its contents were his. Wright further testified
that he had gone into the room where the black book bag was found to look out of a
window when the officers arrived. According to Wright, he never told officers that
he owned the black book bag but instead simply claimed ownership of the red and
black bag he brought with him.
At the conclusion of the first part of Wright’s bifurcated trial, the jury found
him guilty of possession with intent to distribute a Schedule I controlled substance
(“spice”), possession of a Schedule II controlled substance (oxycodone), and
possession of a firearm during the commission of a crime. During the second part of
the bifurcated trial, the trial court admitted Wright’s 2011 convictions and sentences
for possession with intent to distribute marijuana and possession of a firearm during
the commission of a crime, following which the jury found him guilty of possession
of a firearm by a convicted felon.2
2
As discussed in more detail below in Division 2, the trial court admitted
evidence of the facts underlying the prior convictions during the first part of the
bifurcated trial. The convictions and sentences themselves, however, were admitted
only during the second part of the bifurcated trial.
4
1. On appeal, Wright challenges the denial of his pre-trial motion to suppress
the investigator’s testimony that Wright made two statements claiming ownership of
the black book bag and its contents. He contends that his statements were
inadmissible as the products of a custodial interrogation that occurred before officers
advised him of his Miranda rights. We disagree.3
In reviewing a trial court’s decision on a motion to suppress, we accept the trial
court’s rulings on disputed facts unless clearly erroneous, but review the application
of the law to the facts de novo. State v. Hammond, 313 Ga. App. 882, 884 (723 SE2d
89) (2012). We construe the evidence in the light most favorable to the trial court’s
decision. State v. Holler, 224 Ga. App. 66, 71 (2) (b) (479 SE2d 780) (1996). “[I]n
conducting our review, we may consider trial testimony in addition to the testimony
submitted during the motion to suppress hearing.” Thompson v. State, 313 Ga. App.
844, 846 (1) (723 SE2d 85) (2012) (citation and punctuation omitted).
The Fifth Amendment bars the admission of an accused’s statements made
during a custodial interrogation, unless he first is advised of and voluntarily waives
3
Although we reverse Wright’s convictions in Division 2, we nevertheless
address this claim because it involves issues likely to recur on retrial. See Allaben v.
State, 299 Ga. 253, 257 (3) (787 SE2d 711) (2016); Hines v. State, 353 Ga. App. 710,
714 (3) (839 SE2d 208) (2020); see also Divisions 2 and 3, below.
5
his Miranda rights. Gardner v. State, 261 Ga. App. 10, 11 (582 SE2d 7) (2003); see
Miranda v. Arizona, 384 U. S. 436, 444-445, 478-479 (III) (86 SCt 1602, 16 LE2d
694) (1966). “The issue of whether a person is in custody for Miranda purposes is a
mixed question of law and fact, and the trial court’s determination will not be
disturbed unless it is clearly erroneous.” Pugh v. State, 323 Ga. App. 31, 36 (2) (747
SE2d 101) (2013) (citation and punctuation omitted).
The test to determine whether a detainee is in custody for Miranda
purposes is whether a reasonable person in the detainee’s position would
have thought the detention would not be temporary. The safeguards
prescribed by Miranda become applicable only after a detainee’s
freedom of action is curtailed to a degree associated with formal arrest.
Owens v. State, 308 Ga. App. 374, 378 (2) (707 SE2d 584) (2011) (citation and
punctuation omitted); see Miranda, 384 U. S. at 477 (III) (explaining that protections
of that decision apply “when the individual is first subjected to police interrogation
while in custody at the station or otherwise deprived of his freedom of action in any
significant way”).
When making this determination,
a court must examine all of the circumstances surrounding the
interrogation . . . . Whether a suspect is in custody does not depend upon
the subjective views harbored by either the interrogating officers or the
6
person being questioned. Instead, the only relevant inquiry is how a
reasonable person in the suspect’s position would have understood the
situation. A reasonable person is one neither guilty of criminal conduct
and thus overly apprehensive nor insensitive to the seriousness of the
circumstances.
Chavez-Ortega v. State, 331 Ga. App. 500, 502-503 (1) (771 SE2d 179) (2015)
(citations and punctuation omitted); accord Pugh, 323 Ga. App. at 36 (2) (“Unless a
reasonable person in the suspect’s situation would perceive that he was in custody,
Miranda warnings are not necessary.”) (citation and punctuation omitted). Thus, “a
custodial situation does not arise even if an officer believes he has probable cause to
arrest a defendant, where the officer takes no overt step to communicate that belief.”
Pugh, 323 Ga. App. at 37 (2) (citation and punctuation omitted); see Arce v. State,
245 Ga. App. 466, 466-467 (538 SE2d 128) (2000) (probable cause for an arrest,
standing alone, does not convert a temporary detention into a formal arrest),
disapproved in part on other grounds by State v. Turnquest, 305 Ga. 758, 775 & n. 15
(827 SE2d 865) (2019).
“[A]s a general rule, one who is the subject of a general on-the-scene
investigation is not in custody though he may not be free to leave during the
investigation.” State v. Lucas, 265 Ga. App. 242, 244 (2) (593 SE2d 707) (2004)
7
(citation and punctuation omitted); see Miranda, 384 U. S. at 477-478 (III) (the
requirements of Miranda do not apply to “[g]eneral on-the-scene questioning as to
facts surrounding a crime or other general questioning of citizens in the fact-finding
process” because “[i]n such situations the compelling atmosphere inherent in the
process of in-custody interrogation is not necessarily present”). In that situation,
officers may make inquiries “solely to determine whether there currently is any
danger to them or other persons” and “may even temporarily detain anyone who tries
to leave before the preliminary investigation is completed.” State v. Wintker, 223 Ga.
App. 65, 67 (476 SE2d 835) (1996). A detention accompanied by such inquiries does
not trigger Miranda’s requirements “unless the questioning is aimed at obtaining
information to establish a suspect’s guilt.”4 Id. (citations and punctuation omitted);
accord Thompson, 313 Ga. App. at 847-848 (1); Lucas, 265 Ga. App. at 244 (2); see
Futch v. State, 145 Ga. App. 485, 486, 488-489 (3) (243 SE2d 621) (1978) (a
question regarding who owned a closed trunk suspected of containing marijuana,
made during an initial on-the-scene investigation involving two suspects at a motel
before any arrest, did not require Miranda warnings). Thus, Miranda warnings are
not required where a defendant who is not in custody “responds to an officer’s initial
4
We address this proposition more fully in Division 1 (c), below.
8
inquiry at an on-the-scene investigation that had not become accusatory.” Taylor v.
State, 235 Ga. App. 323, 326 (2) (509 SE2d 388) (1998) (citation and punctuation
omitted); see id. at 324-327 (1)-(2) (concluding that Miranda warnings were not
required when a detective informed the defendant, while standing outside of a store
where her purse had been found by a store clerk, “that he was investigating the
marijuana found in her purse,” because the detective’s statements did not constitute
interrogation “aimed at establishing her guilt,” but rather were focused on assessing
the general nature of the situation).
Here, the circumstances under which Wright admitted ownership of the black
book bag and its contents do not rise to the level of a custodial interrogation for
purposes of the Miranda requirements. Three primary factors inform our ruling in this
regard.
(a) First, Wright has identified no evidence that officers told any of the
occupants of the home that they were under arrest or explicitly forbade them to leave
the premises.5 Of course, a reasonable person in the occupants’ shoes likely would
5
Before trial, the trial court held a hearing pursuant to Jackson v. Denno, 378
U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964), to determine the voluntariness of
Wright’s allegedly custodial incriminating statements. See Clark v. State, 309 Ga.
App. 749, 751 (3) (711 SE2d 339) (2011). During that hearing, the investigator
9
understand the investigator’s request to wait on the porch as indicating that they were
expected to remain there while officers searched the home for the fugitive they
sought. No reasonable person, however, would perceive such a detention as anything
other than temporary. See Owens, 308 Ga. App. at 378-379 (2) (defendant was not in
custody for Miranda purposes when he was detained for 20 minutes, during which
time he was neither handcuffed nor otherwise restrained); Arce, 245 Ga. App. at 466-
467 (defendant was not in custody while submitting to field sobriety tests, as there
was no evidence that the officer communicated anything other than the fact that he
was conducting a brief investigatory stop, notwithstanding the existence of probable
cause to arrest the defendant); see also generally Chavez-Ortega, 331 Ga. App. at
502-503 (1). And even accepting at face value Wright’s repeated assertions that he
and the others on the porch were “guarded” by one or more officers “standing watch”
over them, the trial court was entitled to find that the officers’ actions in that regard
were incident to the occupants’ temporary detention while officers assessed the scene.
See Lucas, 265 Ga. App. at 244 (2); Wintker, 223 Ga. App. at 67.
testified that Wright was free to move around the porch before his arrest and that the
investigator did not coerce Wright into making a statement with any kind of threat or
action.
10
(b) Second, viewing the evidence in the light most favorable to the trial court’s
ruling, the investigator’s initial question regarding ownership of “the bag” — which
the investigator did not otherwise identify at that time — was directed to all three
occupants then on the porch, rather than to Wright individually. Such a general
request for information to all persons present in a residence (or its curtilage) does not
bear the hallmarks of a “custodial interrogation” or questioning aimed at establishing
a particular suspect’s guilt, but rather more closely resembles a “general on-the-scene
investigation.” See Lucas, 265 Ga. App. at 244 (2); Wintker, 223 Ga. App. at 67;
Futch, 145 Ga. App. at 486, 488-489 (3).
(c) Finally, the investigator’s second question, in which he showed the black
book bag to Wright and asked him to confirm that it was his — while all three
occupants remained free to move about the porch — did not change the nature of
Wright’s detention. Nevertheless, Wright contends that Miranda warnings were
required because the investigator’s second question confronted Wright with the
evidence against him and thus was aimed at establishing his guilt of a drug offense.
However, Wright has not cited, and research has not revealed, any binding precedent
expressly holding that the subjectively accusatory or incriminating nature of an
11
officer’s question (from the officer’s point of view)6 during an initial, on-the-scene
investigation — standing alone — is sufficient to transform a non-custodial situation
into a “custodial interrogation” for purposes of the Miranda requirements. We
address in turn each of the decisions cited by Wright on this issue.
In Lucas, 265 Ga. App. at 243 (2), the defendant (Lucas) gave deputy sheriffs
— who sought to serve a warrant on a third party — consent to search his home for
the third party while Lucas and another man remained seated in the living area,
watched over by one deputy. During the search, another deputy found marijuana and
rolling papers on a cookie tray in a bedroom. Id. That deputy confronted the two men
with the tray and asked to whom it belonged; Lucas said that it was his and was
arrested. Id. The trial court granted Lucas’s motion to suppress his statement on the
ground that it was the result of a custodial interrogation conducted without the benefit
of Miranda warnings. Id. at 242.
The State appealed, contending that Lucas was not in custody for Miranda
purposes when he claimed ownership of the tray. Lucas, 265 Ga. App. at 242, 243 (2).
This Court affirmed, highlighting that “an objective standard is used to determine
6
As further explained below, on the facts of this case, the investigator’s second
question was not objectively accusatory, insofar as the incriminating nature of the
question required knowledge that suspected contraband was found in or on the bag.
12
custody,” under which “the proper inquiry is whether a reasonable person in Lucas’s
place would have believed that his freedom was curtailed in a significant way when
the deputy asked who owned the marijuana,” and concluding that the trial court was
entitled to find that standard had been satisfied. Id. at 244 (2). When read as a whole,
we construe Lucas as standing for the proposition that a custodial interrogation may
begin when officers confront a temporarily detained person with evidence that, on its
face, would lead a reasonable person to believe that his detention no longer would be
temporary. Accord Owens, 308 Ga. App. at 378 (2); see also Rhode Island v. Innis,
446 U. S. 291, 300-301 (II) (A) (100 SCt 1682, 64 LE2d 297) (1980) (the inquiry as
to whether in-custody questioning is “reasonably likely to elicit an incriminating
response” “focuses primarily upon the perceptions of the suspect, rather than the
intent of the police”). Here, by way of contrast, the record contains no indication that
Wright was expressly confronted with contraband or any other objectively obvious
wrongdoing when merely asked to confirm his ownership of the black book bag.
Thus, unlike the situation in Lucas, a reasonable person in Wright’s place “neither
guilty of criminal conduct” nor “insensitive to the seriousness of the circumstances,”
Chavez-Ortega, 331 Ga. App. at 503 (1), would have no reason to believe that his
freedom was curtailed any more than it had been when the first question about “the
13
bag” was asked. See Owens, 308 Ga. App. 378 (2); see also Innis, 446 U. S. at 300-
301 (II) (A); Chavez-Ortega, 331 Ga. App. at 503 (1) (“Whether a suspect is in
custody does not depend upon the subjective views harbored by either the
interrogating officers or the person being questioned.”) (citation and punctuation
omitted).
In Thompson, 313 Ga. App. at 845-846, 847-848 (1), we held that an officer’s
question as to “where [Thompson, the defendant] put the vacuums” — made while
Thompson was being detained and after he had been identified as a suspect in the
theft of vacuum cleaners — “was clearly aimed at establishing his guilt” and thus
should have been preceded by Miranda warnings. Notably, however, before he was
questioned, Thompson had been found to be in possession of a crack pipe and push
rods (which had then been placed on top of a patrol car), and he had admitted to an
officer that he recently bought and used crack cocaine. Id. at 847 (1). We concluded
that, “[u]nder these circumstances, after producing drug paraphernalia, admitting to
owning same, and admitting to recently buying and using drugs, a reasonable person
would certainly perceive himself to be in police custody.” Id. No such circumstances
are present here.
14
In Gardner, 261 Ga. App. at 11, it was undisputed that the defendant was in
custody, and the only question on appeal thus was whether the statement sought to
be suppressed “was made in direct response to police interrogation or its functional
equivalent.” Gardner thus has no application in this case.
Finally, in United States v. Luna-Encinas, 603 F3d 876, 877-878, 879 (I), 882-
883 (II) (11th Cir. 2010), which involved a prosecution for possession of a firearm
by an alien unlawfully in the United States, the federal appellate court affirmed the
denial of the defendant’s motion to suppress his answer to an officer’s question about
where a gun was located in his apartment. The court (a) highlighted that the defendant
at that time had been “detained for a relatively brief period in a neutral, outdoor
location” while officers searched the area for a third party and (b) concluded that “a
reasonable person in his position would not have understood his freedom of action
to have been curtailed to a degree associated with formal arrest” for purposes of the
Miranda requirements. Id. at 882 (II) (citation and punctuation omitted). Luna-
Encinas therefore also does not aid Wright’s argument, but rather supports the trial
court’s ruling here.7
7
A few decisions not cited by Wright, which initially may be read to support
his claim on this issue, do not reach so far on closer inspection. For example, in
Aldridge v. State, 247 Ga. 142, 144-145 (2) (274 SE2d 525) (1980), the Supreme
15
All in all, the investigator’s questions about the black book bag in this case did
not bear the hallmarks of a “custodial interrogation,” primarily because (a) Wright’s
Court of Georgia stated that, “[s]o long as the interrogation is not aimed at obtaining
information to establish a suspect’s guilt but is instead aimed at determining the
nature of the situation upon the arrival of the policeman on the scene, some initial
inquiry may, under the circumstances, be permissible before Miranda warnings are
given.” That observation, however, relied on the Court’s prior decision in Shy v.
State, 234 Ga. 816, 819-823 (I) (218 SE2d 599) (1975), which, in turn, had employed
a balancing test that no longer is used in determining custody for Miranda purposes.
See State v. Folsom, 285 Ga. 11, 13 (1) (673 SE2d 210) (2009). Regardless, the
Aldridge Court found that the questioning at issue — in which an officer merely
asked the defendant “what happened” after finding the defendant and his severely
injured wife in a room in their home in which a rifle also was present — was not
accusatory. 247 Ga. at 145 (2). As a result, the Court had no occasion to hold — and
therefore did not hold — that the answer to a question subjectively aimed at
establishing a suspect’s guilt made during an initial, on-the-scene investigation, but
before the suspect’s freedom of action has been curtailed to a degree associated with
formal arrest, must be suppressed in an ensuing prosecution if not preceded by
Miranda warnings. See id. at 144-145 (2). Similarly, in Lolley v. State, 259 Ga. 605,
606-607 (2) (b) (385 SE2d 285) (1989), the Court quoted the above passage from
Aldridge. Notably, however, the Lolley Court found no Miranda violation, despite
assuming that the suspect was “in custody” when he made the challenged statements.
Id. at 606 (2) (a). And as in Aldridge, the Lolley Court did not hold either (a) that a
question aimed at establishing a suspect’s guilt — without more — may transform a
non-custodial interrogation into a custodial interrogation or (b) that the answer to
such a question made during a non-custodial interrogation must be suppressed if not
preceded by Miranda warnings. See id. at 606-607 (2) (a)-(b). Likewise, in Taylor,
235 Ga. App. at 326 (2), and Wintker, 223 Ga. App. at 67, each of which contain
language similar to the above passage from Aldridge, this Court did not hold either
(a) that an accusatory question by itself may transform non-custodial questioning into
custodial questioning or (b) that responses to such questioning made during a non-
custodial interrogation must be suppressed if not preceded by Miranda warnings.
16
freedom of action had not been “curtailed to a degree associated with formal arrest,”
Owens, 308 Ga. App. at 378 (2) (citation and punctuation omitted), and (b) the
questions did not expressly refer to contraband or otherwise implicate a crime or other
wrongdoing and thus lacked an “accusatory nature,” see Thompson, 313 Ga. App. at
848 (1). See also generally Lucas, 265 Ga. App. at 243-244 (2); Wintker, 223 Ga.
App. at 68-69 (concluding that Miranda was triggered when the teenage defendant
was locked in the back seat of a patrol car — with a handcuffed friend who had been
arrested — and asked whether she owned a suitcase containing drugs that officers
found in a car in which she had been a passenger and on which a drug dog had
alerted, because, under the totality of the circumstances, there was a significant
“compulsive aspect” to the “isolated and police-dominated” interrogation) (citation
and punctuation omitted).
Naturally, it is apparent that the investigator in this case, having found
suspected drugs on top of the black book bag’s other contents, subjectively may have
perceived his second question as being aimed at establishing Wright’s guilt and that
Wright — assuming that he knew of the book bag’s contents — subjectively may
have perceived that question in the same way. Those considerations, however, play
no part in our analysis, which asks only what a reasonable person neither guilty of
17
criminal conduct nor insensitive to the seriousness of the circumstances would
perceive. See Chavez-Ortega, 331 Ga. App. at 502-503 (1); see also Innis, 446 U. S.
at 300-301 (II) (A). And under that test, there was no objectively accusatory,
“compulsive,” or “isolated and police-dominated” aspect to the investigator’s
questions. See Wintker, 223 Ga. App. at 68-69; see also Chavez-Ortega, 331 Ga. App.
at 503 (1); Taylor, 235 Ga. App. at 326 (2). We therefore affirm the denial of
Wright’s motion to suppress.
2. Wright further contends that the trial court erred when, during the first part
of his bifurcated trial, it admitted evidence of the facts underlying his 2011
convictions for possession with intent to distribute marijuana and possession of a
firearm during the commission of a crime. The trial court admitted this evidence for
the limited purposes of establishing Wright’s knowledge, intent, and lack of mistake
and gave the jury limiting instructions to that effect. We agree with Wright that this
evidence was improperly admitted.
We review a trial court’s decision to admit other acts evidence for abuse of
discretion. See State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d 170) (2015); accord
Parks v. State, 300 Ga. 303, 305-306 (2) (794 SE2d 623) (2016). The statute
18
primarily applicable to such evidence — OCGA § 24-4-404 (b) (“Rule 404 (b)”) —
provides, in relevant part:
Evidence 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. It may, however, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. . . .
Rule 404 (b) “is, on its face, an evidentiary rule of inclusion.” Jones, 297 Ga. at 159(2). Nevertheless, relevant evidence offered for a proper purpose under Rule 404 (b)
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.”
OCGA § 24-4-403 (“Rule 403”); Jones, 297 Ga. at 158 (1).
Thus, for evidence to be admissible under these provisions,
the State must make a showing that: (1) evidence of extrinsic, or other,
acts is relevant to an issue other than a defendant’s character; (2) the
probative value of the other acts evidence is not substantially
outweighed by its unfair prejudice, i.e., the evidence must satisfy the
requirements of Rule 403; and (3) there is sufficient proof so that the
jury could find that the defendant committed the act in question.
19
Jones, 297 Ga. at 158-159 (1) (citation omitted). To address the first part of this test,
we look to OCGA § 24-4-401, which defines “relevant evidence” as “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.” See Heard v. State, 309 Ga. 76, 84-85 (3) (b) (844 SE2d 791) (2020).
“This is a binary question — evidence is either relevant or it is not.” Id. at 85 (3) (b).
The second prong of the Jones test — application of Rule 403 — requires a
trial court to “undertake in each case a considered evaluation of the proffered
justification for the admission of such evidence and make an independent
determination of whether the probative value of the evidence is substantially
outweighed by” any of the Rule 403 factors. Jones, 297 Ga. at 163 (3). “In weighing
the probative value of other acts evidence, a court may consider a number of factors,
including (1) prosecutorial need, (2) overall similarity of the other acts and the acts
charged, and (3) the temporal remoteness of the other acts.” Thompson v. State, 308
Ga. 854, 859 (2) (843 SE2d 794) (2020).
“[T]here is no mechanical solution for this balancing test.” Jones, 297 Ga. at
163 (3). Rather, “[a] Rule 403 analysis must be done on a case-by-case basis and
requires a common sense assessment of all the circumstances surrounding the
20
extrinsic act and the charged offense.” Green v. State, 352 Ga. App. 284, 290 (2) (e)
(834 SE2d 378) (2019) (citation and punctuation omitted). Generally speaking,
however,
the greater the tendency to make the existence of a fact more or less
probable, the greater the probative value. . . . Probative value also
depends on the marginal worth of the evidence — how much it adds, in
other words, to the other proof available to establish the fact for which
it is offered. . . . And probative value depends as well upon the need for
the evidence. When the fact for which the evidence is offered is
undisputed or not reasonably susceptible of dispute, the less the
probative value of the evidence.
Olds v. State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016) (citations omitted).
“The major 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.” Sloan
v. State, 351 Ga. App. 199, 210 (2) (e) (ii) (830 SE2d 571) (2019) (citation and
punctuation omitted). Thus, “the exclusion of evidence under Rule 403 is an
extraordinary remedy which should be used only sparingly.” Olds, 299 Ga. at 70 (2).
In that regard, an appellate court reviewing issues under Rule 403 must “look at the
evidence in a light most favorable to its admission, maximizing its probative value
21
and minimizing its undue prejudicial impact.” Sloan, 351 Ga. App. at 208 (2) (e)
(citation and punctuation omitted).
Wright does not dispute that the State satisfied the third prong of the Jones test;
his appellate challenges thus implicate only the first two prongs. During Wright’s
trial, an investigator testified that, in June 2011, he stopped a car in which Wright was
a passenger (because Wright was not wearing a seatbelt) after watching what
appeared to be a drug transaction. Officers searched Wright and found three bags of
marijuana with a combined weight of 25.9 grams, a pistol, and $730 in cash in his
pants pockets, as well as a digital scale on the car seat where he had been sitting. The
investigator did not find any personal-use paraphernalia on Wright at that time. As
a result of that encounter, Wright pled guilty to possession with intent to distribute
marijuana and possession of a firearm during the commission of a crime.8
Immediately before testimony about the 2011 incident, the trial court gave a
limiting instruction, telling the jury that it could consider evidence of other crimes
allegedly committed by Wright only “insofar as [such evidence] relates to”
8
While Wright admitted during cross-examination (in the first part of his
bifurcated trial) that, as a result of the June 2011 encounter, he pled guilty to one or
more offenses involving an “inten[t] to distribute,” the ensuing convictions and
sentences resulting from those guilty pleas were not admitted into evidence until the
second part of the bifurcated trial.
22
knowledge, intent, and lack of mistake in the current case, “and not for any other
purpose.” The court repeated this instruction during the jury charge. For the reasons
that follow, the evidence was improperly admitted on all three bases.
(a) Knowledge. For purposes of Rule 404 (b), “knowledge” refers either to a
special skill, such as safe-cracking, bomb-making, or document forgery, or to specific
knowledge based on past experience such as a trespass conviction used to establish
a defendant’s knowledge that he was not welcome on the premises. See Paul S.
Milich, Ga. Rules of Evidence § 11:17, p. 348 & n. 1 (2019-2020 ed.), cited in
Rouzan v. State, 308 Ga. 894, 899 (2) (843 SE2d 814) (2020) (concluding that prior
guilty pleas to voluntary manslaughter and burglary were not relevant to the
defendant’s “knowledge” in a prosecution for murder and a gun-possession offense);
United States v. Walters, 351 F3d 159, 161, 164-167 (I)-(II) (A) (5th Cir. 2003) (in
a prosecution for making and sending a bomb, evidence that the defendant possessed
a book entitled “The Anarchist’s Cookbook” was properly admitted under Rule 404
(b) to show that the defendant “had the knowledge to construct the destructive device
used to commit the crimes alleged in the indictment”) (punctuation omitted); United
States v. Garcia, 880 F2d 1277, 1278-1279 (11th Cir. 1989) (in a prosecution for
making a false statement on a loan application, evidence that the defendant previously
23
signed a third party’s name on a document purporting to sell the third party’s
apartment to the defendant was properly admitted under Rule 404 (b), as it showed
that the defendant “had the ability to prepare documents purporting to bear signatures
which were faked”).9
Moreover, “a defendant’s knowledge may be at issue where it is an element of
the charged crime; that is, when knowledge itself is part of the statutory definition of
the crime, and thus must be proven by the prosecution.” Green, 352 Ga. App. at 289
(2) (c) (citation and punctuation omitted). For example, in a prosecution for reckless
conduct, the defendant’s knowledge of his and his sexual partners’ HIV status “was
highly probative and relevant as to whether he . . . knew that he was [HIV-]positive
at the time he engaged in sexual relationships with the victims.” Davis v. State, 342
Ga. App. 889, 894 (1) (806 SE2d 3) (2017) (citation and punctuation omitted). And
in a prosecution for misdemeanor obstruction of an officer, prior instances of
obstruction may be relevant to show that the charged act of obstruction was knowing
9
“[B]ecause our new Evidence Code is comparable to the Federal Rules of
Evidence, this Court will give consideration and great weight to constructions placed
on the Federal Rules by the federal courts.” Curry v. State, 330 Ga. App. 610, 613 (1)
(768 SE2d 791) (2015) (citation and punctuation omitted).
24
and wilful, as required by the relevant statute. See Green v. State, 339 Ga. App. 263,
265-267 (1) (a) (793 SE2d 156) (2016).
Knowledge is also properly in issue when the defendant claims
that he or she was unaware that a criminal act was being perpetrated. In
such cases, the hypothesis justifying the admission of other-acts
evidence is similar to that invoked with intent: the likelihood that
repeated instances of behavior, even if originally innocent, will have
resulted in [the] defendant’s having the requisite state of knowledge by
the time of the charged crime.
Green, 352 Ga. App. at 289 (2) (c) (citation and punctuation omitted). Where no
special knowledge or talent is required to commit the charged crime, however, other
acts should not be admitted simply to show that the defendant is “capable” of
committing the charged offense. Id. at 289-290 (2) (c) (citing Paul S. Milich, Ga.
Rules of Evidence § 11:17, pp. 340-341 (2018-2019 ed.)).10
10
As explained by Professor Milich,
The probative value of proving knowledge lies in answering a concern
a juror might otherwise have: “did the defendant know how to do that?”
If the crime, such as robbing a person with a pistol, requires no special
skill, then that juror concern never arises and there is no probative value
to the evidence other than the illegitimate inference — “he did it before
so he probably did it again.”
Paul S. Milich, Ga. Rules of Evidence § 11:17, p. 348, n. 2 (2020-2021 ed.).
25
There is no allegation that any special knowledge or skill was required for any
of the offenses at issue here. See Rouzan, 308 Ga. at 899 (2); Davis, 342 Ga. App. at
894 (1). Moreover, Wright did not claim that he was unaware that items in his
possession contained drugs and a gun — he merely disclaimed ownership of the black
book bag outright. See Green, 352 Ga. App. at 289 (2) (c). Under these
circumstances, Wright’s knowledge was not at issue in this case, and the trial court
therefore erred in admitting the other acts evidence on this basis. See Rouzan, 308 Ga.
at 899 (2); Green, 352 Ga. App. at 289 (2) (c); Davis, 342 Ga. App. at 894 (1).
(b) Intent. The first prong of the Rule 404 (b) test is met where intent is a
material issue on which the State bears the burden of proof and “the same state of
mind was required for committing the prior act and the charged crimes.” Jones, 297
Ga. at 160-161 (2). In that regard, “a defendant puts his intent in issue when he pleads
not guilty unless he takes affirmative steps to withdraw intent as an element to be
proved by the State.” Id. at 161 (2), n. 4; accord Kirby v. State, 304 Ga. 472, 480 (4)
(a) (819 SE2d 468) (2018); Sloan, 351 Ga. App. at 208 (2) (d).
(i) Relevance. Wright’s prior convictions are relevant to show his intent here
because the same intent was required in both cases, and he did not affirmatively seek
to withdraw intent as an element to be proved by the State as to each offense in this
26
case. See Kirby, 304 Ga. at 480 (4) (a); Jones, 297 Ga. at 160-161 (2) & n. 4; Sloan,
351 Ga. App. at 208 (2) (d). We therefore must address whether the danger of unfair
prejudice substantially outweighed the probative value of the other acts evidence. See
OCGA § 24-4-403; Jones, 297 Ga. at 159 (1).
(ii) Rule 403. When applying the Rule 403 balancing test to other acts evidence
of intent, the inquiry as to prosecutorial need focuses on whether there is any “danger
that a rational jury could find that although the defendant committed the objective,
charged acts, he did not intend to do so.” Sloan, 351 Ga. App. at 209 (2) (e) (i)
(citation and punctuation omitted); accord Chynoweth v. State, 331 Ga. App. 123, 128
(3) (768 SE2d 536) (2015) (citing Paul S. Milich, Ga. Rules of Evidence, § 11:13,
p. 321 (2014-2015 ed.)). Thus, the prosecutorial need for other acts evidence of intent
is minimal where it is “unlikely, based upon the particular facts and circumstances of
th[e] case, that any rational jury could find that the perpetrator lacked criminal
intent.” Sloan, 351 Ga. App. at 210 (2) (e) (i); accord Jackson v. State, 306 Ga. 69,
78-80 (2) (b) (ii) (829 SE2d 142) (2019) (in a prosecution for murder involving a
shooting into a retreating car, evidence that the defendant previously shot another
man who was retreating in his truck should not have been admitted to show intent
because “[n]either party ever contended that the shooting [under prosecution] was
27
unintentional,” as a result of which the prosecutorial need for the other acts evidence
was “negligible”); Green, 352 Ga. App. at 291 (2) (e) (i) (concluding that “the
prosecutorial need for [other acts] evidence was negligible with regard to intent as no
evidence was presented showing that the [charged criminal act] was unintentional and
[the defendant] presented no such defense”); see also generally Brown v. State, 303
Ga. 158, 162 (2) (810 SE2d 145) (2018) (“When the fact for which the evidence is
offered is undisputed or not reasonably susceptible of dispute, the less the probative
value of the evidence.”) (citation and punctuation omitted); Smith v. State, 232 Ga.
App. 290, 293 (1) (501 SE2d 523) (1998) (“[W]here intent may be easily inferred
from the commission of the act itself, the probative value of similar transaction
evidence proffered to prove intent will generally be outweighed by its prejudicial
effect.”).
Here, the jury was tasked with choosing between two competing versions of
events. Under the State’s version — based entirely on the investigator’s testimony —
Wright claimed sole ownership of the black book bag “and everything in it.” Under
Wright’s version — based entirely on his testimony — (i) he had only one bag with
him: a small red and black bag; (ii) he knew nothing about the black book bag or its
contents; and (iii) he never claimed ownership of the black book bag or its contents
28
but instead simply claimed ownership of the red and black bag he brought with him.11
These versions are mutually exclusive: if the jury believed the investigator, it would
have to disbelieve Wright; if the jury believed Wright, it would have to disbelieve the
investigator.
Regardless of which version of events the jury believed, however, in neither
scenario is there any likelihood that the jury would find that Wright possessed the
items in the black book bag but intended neither to possess the drugs and gun nor to
distribute the drugs, given the volume of drugs, the packaging, the presence of a scale
and a gun in the same bag, and the absence of personal-use paraphernalia.12 The
11
While Wright testified that he “didn’t give a direct statement taking
ownership of anything,” he then added, “I told them what I had,” which, he claimed,
was the red and black bag he brought with him.
12
Had there been some evidence that Wright possessed the black book bag but
did not intend to possess its contents — for example, if he claimed that the black
book bag was his but that he knew nothing of its contents — the prosecutorial need
for other acts evidence of intent would then be much higher. See Sloan, 351 Ga. App.
at 210 (2) (e) (i) (“‘The classic situations calling for admissibility of independent
crimes or acts to prove intent are when the defendant admits a certain involvement
in the criminal incident but maintains he was duped or forced to go along and thus
lacked the necessary criminal intent or the defendant admits the charged conduct but
claims he did not intend to act criminally.’”) (quoting Paul S. Milich, Ga. Rules of
Evidence, § 11:15, p. 330 (2018-2019 ed.)); accord, e.g., Westbrook v. State, 355 Ga.
App. 334, 336-338 (1)-(2) (844 SE2d 208) (2020) (evidence of a prior armed robbery
conviction was “highly probative of [the defendant’s] intent” when he drove an
accomplice to and from the charged armed robberies but claimed that he was ignorant
29
prosecutorial need for the other acts evidence to show intent here therefore was
minimal. See Jackson, 306 Ga. at 78-80 (2) (b) (ii); Sloan, 351 Ga. App. at 210 (2)
(e) (i); see also McKinney v. State, 307 Ga. 129, 138 (3) (b), n. 7 (834 SE2d 741)
(2019) (evidence of a prior assault committed by the defendant had limited probative
value “because the prosecutorial need for it was negligible,” given that “[t]here was
no real dispute that whoever beat and strangled [the victim in the charged crimes] to
death had the intent required for malice murder and aggravated assault with an
offensive weapon”); compare Chynoweth, 331 Ga. App. at 128 (3) (in a prosecution
for attacking a correctional officer, evidence of the defendant’s unprovoked attack on
another inmate was properly admitted to rebut suggestions that the defendant may
have lacked the necessary intent due to mental illness).
at that time of the accomplice’s plan to commit the robberies); see also United States
v. Arbane, 446 F3d 1223, 1226 (II) (B), n. 4 (11th Cir. 2006) (approving of the trial
court’s instruction to the jury that it was permitted to consider other acts evidence
only for the purpose of determining the defendant’s intent, “and only if [it] found
beyond a reasonable doubt from other evidence in the case that [the defendant] did
commit the acts charged in the indictment”) (emphasis supplied); United States v.
Beechum, 582 F2d 898, 917 (III) (C), n. 23 (5th Cir. 1978) (implicitly approving of
the trial court’s instruction to the jury that it could not consider other acts evidence
of intent “in determining whether an accused committed the acts or participated in the
activity alleged in the indictment” and that the other acts evidence could not be
considered for any purpose “unless the jury first [found] that the other evidence in the
case, standing alone, establishe[d] beyond a reasonable doubt that the accused
participated in the activity alleged in the indictment”) (emphasis supplied).
30
Moreover, the temporal proximity between the prior June 2011 incident and the
November 2015 incident charged here does not materially add to the probative value
of the other acts evidence. See, e.g., Sloan, 351 Ga. App. at 210 (2) (e) (i) (concluding
that six- and eleven-year gaps between prior offenses and the charged offenses did
not “appreciably” add to the prior offenses’ low probative value). And the similarities
between the prior acts and current offenses likewise do not weigh in favor of
admissibility for reasons discussed in more detail in Division (2) (b) (iii) and note 13
below.
The danger of unfair prejudice, on the other hand, was significant. The only
direct evidence of Wright’s guilt in this case came from the testimony of a single
witness. And given Wright’s testimony that two bags were present (both of which
were at least partially black) and that he never claimed ownership of the black book
bag, as well as his explanation for why he was in the room with the black book bag,
a reasonable juror could have found that Wright intended to claim ownership only of
the small red and black bag, and not the black book bag. Viewed in that context, the
danger of unfair prejudice from the admission of the facts underlying the prior
convictions was high, as it encouraged the jury to find that, because Wright had
possessed drugs and a gun together in the past, he was more likely to have done so
31
here, which plainly is prohibited by Rules 403 and 404 (b). See Smith, 232 Ga. App.
at 293 (1) (the prejudicial effect of other acts evidence generally will outweigh its
probative value “where intent may be easily inferred”); see also generally Jackson,
306 Ga. at 78-80 (2) (b) (ii); Brown, 303 Ga. at 162 (2) (“[O]ne of the dangers
inherent in the admission of extrinsic offense evidence is that the jury may convict
the defendant not for the offense charged but for the extrinsic offense, because the
jury may feel that the defendant should be punished for that activity even if he is not
guilty of the offense charged.”) (citation and punctuation omitted).
We are cognizant that courts must view other acts evidence “in a light most
favorable to its admission, maximizing its probative value and minimizing its undue
prejudicial impact.” Sloan, 351 Ga. App. at 208 (2) (e) (citation and punctuation
omitted). So viewed, even assuming that the temporal proximity and general
similarities between the prior acts and charged offenses arguably could weigh
somewhat in favor of admissibility, on the facts of this case, the absence of any
meaningful prosecutorial need significantly outweighs those factors. And given the
limited quantity of evidence from which the jury was tasked with choosing between
two diametrically opposed versions of events (again, on the specific facts of this
case), the danger that the jury would misuse the evidence for improper propensity
32
purposes — the very essence of unfair prejudice — substantially outweighs any
potential probative value that may be attributed to the other acts evidence. See OCGA
§ 24-4-403; Jones, 297 Ga. at 158 (1); see also Old Chief v. United States, 519 U. S.
172, 180 (II) (B) (1) (117 SCt 644, 136 LE2d 574) (1997) (explaining that unfair
prejudice in this context includes the danger that a jury will “generaliz[e] a
defendant’s earlier bad act into bad character and tak[e] that as raising the odds that
he did the later bad act now charged”); Troy v. State, 312 Ga. 860, 863, n. 5 (866
SE2d 394) (2021) (“the unfair prejudice analysis” under Rule 403 focuses on
“whatever extent the [other acts] evidence was likely to draw an improper propensity
inference”). The trial court therefore abused its discretion in admitting the other acts
evidence on this basis, as well.
(iii) Dissent. The dissent argues that: (i) the probative value of the other acts
evidence is high because the prior acts are “very similar” to the charged offenses; and
(ii) the prosecutorial need for the evidence also is high because it is needed to answer
the question of whether Wright (rather than “some hypothetical perpetrator”) — “who
maintained he was merely present at the scene of a crime with many other people”
and disclaimed ownership of the black book bag — “intended to possess the bag of
33
drugs.” There are three primary, interrelated flaws in the dissent’s analysis. We
address each in turn.
(A) First, the dissent’s approach side-steps the proper balancing test for
assessing prosecutorial need (and relative probative value) of other acts evidence of
intent under Rule 403, which asks whether a rational jury could find that the
defendant committed the objective, charged acts with no intent to do so, not whether
the evidence generally is probative of the defendant’s intent in the abstract. See
Sloan, 351 Ga. App. at 209 (2) (e) (i); Chynoweth, 331 Ga. App. at 128 (3); see also
Jackson, 306 Ga. at 78-80 (2) (b) (ii) (concluding that there was no prosecutorial need
for other acts evidence in a prosecution for murder and a firearm offense where “[a]ll
of the evidence at trial indicated that the person who repeatedly fired a gun toward
[the victim] had the requisite general intent to commit an assault with a deadly
weapon”); Green, 352 Ga. App. at 291 (2) (e) (i). Moreover, where, as here, no
rational jury could find that Wright possessed the black book bag’s contents while
intending neither to possess the drugs and gun nor to distribute the drugs, any
potential similarities between the prior acts and charged offenses further increase the
danger of unfair prejudice — i.e., that the jury will infer guilt based on an improper
34
propensity basis.13 See Old Chief, 519 U. S. at 185 (II) (B) (2) (where prior bad acts
involve offenses similar to the charged offenses, the risk of unfair prejudice — i.e.,
that the nature of the prior bad acts may “lure a juror into a sequence of bad character
reasoning” — is “substantial” and “especially obvious”).
13
Regardless — and contrary to the dissent’s conclusion that the extrinsic acts
here are “very similar” to the charged offenses — there are at least as many
differences between the prior acts and the charged offenses as there are similarities.
While in both episodes, drugs, a gun, a scale, and a large sum of cash were found in
some proximity to Wright, the differences include the following: (i) the prior acts
involved marijuana, whereas the charged offenses involve a synthetic cannabinoid
(“spice”); (ii) the prior acts involved a .22 caliber Jennings semiautomatic pistol,
whereas the charged offenses involve a .44 caliber Magnum revolver (a “large caliber
handgun”); (iii) the prior acts involved three bags of marijuana weighing a total of
25.9 grams, whereas the charged offenses involve nearly 40 individually packaged
bags of “spice” weighing more than 47 grams; and (iv) in the prior acts, the drugs and
gun were found on Wright’s person, and the scale was found inside a vehicle in which
Wright had been a passenger, whereas in the charged offenses, all items other than
the cash were found in a black book bag behind a door in a bedroom in another
person’s residence. Consequently, the quantum of similarities and differences
between the two incidents adds little to either side of the equation as to relative
probative value. See Jackson, 306 Ga. at 78 (2) (b) (ii) (highlighting that “[a] more
careful and granular comparison of” the prior acts and charged offenses — both of
which involved the defendant firing a gun into a retreating vehicle — “reveal[ed]
substantial differences between them”); Brooks v. State, 298 Ga. 722, 725-726 (2) &
n. 10 (783 SE2d 895) (2016) (explaining that a “major difference” between Georgia’s
current Evidence Code and our prior “similar transaction” case law is the need under
Rule 404 (b) to consider the dissimilarities as well as the similarities between the
extrinsic and charged acts).
35
(B) Second, under the dissent’s approach, the exception would swallow the
rule, insofar as a “mere presence” defense, without more, would render the
prosecutorial need for other acts evidence of intent “high” in any prosecution for a
controlled substance offense. While there may be certain factual scenarios in which
a “mere presence” defense may increase the prosecutorial need for such evidence (see
note 12, above), this is not one. As stated above, if the jury were to believe the
investigator and disbelieve Wright, the prosecutorial need for other acts evidence of
intent essentially would be nil. If, however, the jury were to believe Wright and
disbelieve the investigator, the other acts evidence logically would serve one of two
primary, improper purposes.
On the one hand, the jury could infer guilt based on propensity by deciding
that: (i) although it was otherwise inclined to believe Wright, because he committed
the prior acts, he likely intended to commit the charged offenses; and (ii) because he
likely intended to commit the charged offenses, he likely possessed the drugs and gun
at issue here, i.e., “act[ed] in conformity” with the prior acts. OCGA § 24-4-404 (b).
Under that plainly improper line of reasoning, the jury would be using evidence of
intent on a prior occasion to impermissibly establish possession in the charged
offenses. See Jackson, 306 Ga. at 79 (2) (b) (ii), n. 10 (the defendant’s claim that he
36
was not the perpetrator “was an issue of identity, not intent, and evidence of the
[extrinsic bad act] was not admitted for that purpose”); see also United States v.
Arbane, 446 F3d 1223, 1226 (II) (B), n. 4 (11th Cir. 2006) (jury instructed that other
acts evidence of intent could be considered only if the jury first found that the
remaining evidence established that the defendant committed the charged acts);
United States v. Beechum, 582 F2d 898, 917 (III) (C), n. 23 (5th Cir. 1978) (same);
Paul S. Milich, Ga. Rules of Evidence § 11:15, p. 336, n. 7 (2020-2021 ed.) (an
accused’s denial that he committed the predicate act has “nothing to do with proving
intent”); see also generally Old Chief, 519 U. S. at 181 (II) (B) (1) (extrinsic acts may
not be used to show propensity because doing so “is said to weigh too much with the
jury and to so overpersuade them as to prejudge one with a bad general record and
deny him a fair opportunity to defend against a particular charge”) (citation and
punctuation omitted).
On the other hand, the other acts evidence could entice the jury to find Wright
guilty in this case as punishment for possessing drugs and a gun in the prior case. See
Brown, 303 Ga. at 162 (2). That danger is heightened where, as here, only the prior
acts — and not the convictions and sentences resulting from those acts — were
37
admitted during the first phase of Wright’s bifurcated trial,14 and the convictions and
sentences themselves were not admitted until the second phase of the trial, after the
jury already had found Wright guilty of the currently charged offenses. Cf. Westbrook
v. State, 355 Ga. App. 334, 338 (2) (844 SE2d 208) (2020) (concluding that the
potential undue prejudicial effect of other acts evidence was mitigated where the jury
learned that the defendant had “been convicted and served a prison sentence for his
earlier conduct, making it less likely that the jury would want to punish [the
defendant] for this past conduct rather than the charged crimes”) (citation and
punctuation omitted). In either situation, the other acts evidence serves primarily (if
not entirely) an improper purpose.
(C) Finally, while the three decisions on which the dissent primarily relies
arguably may appear to support the trial court’s ruling here at first glance, each case
differs significantly from the present scenario on closer inspection. See Hargrove v.
State, 361 Ga. App. 106 (863 SE2d 364) (2021); Moton v. State, 351 Ga. App. 789(833 SE2d 171) (2019); Gunn v. State, 342 Ga. App. 615 (804 SE2d 118) (2017).
Importantly, in none of these decisions did this Court engage in the relevant analysis
14
For this reason, the dissent’s references to the jury’s consideration of
Wright’s “prior drug conviction” and “prior conviction” are somewhat misplaced in
this context.
38
with respect to prosecutorial need of other acts evidence of intent under Rule 403,
i.e., asking whether a rational jury could find that the defendant committed the
objective, charged acts with no intent to do so. Compare Hargrove, 361 Ga. App. at
111-117 (2), Moton, 351 Ga. App. at 791-794, and Gunn, 342 Ga. App. at 618-622
(1), with Green, 352 Ga. App. at 291 (2) (e) (i), Sloan, 351 Ga. App. at 209 (2) (e) (i),
and Chynoweth, 331 Ga. App. at 128 (3).
Specifically, in Hargrove, prosecutorial need was deemed “significant” for
reasons not present here — i.e., because the evidence that the defendant possessed the
drugs and paraphernalia in that case “was entirely circumstantial,” 361 Ga. App. at
116 (2) (c) (ii), insofar as the contraband was found in plain view in multiple rooms
in a residence in which two other persons were present, after the defendant left the
residence. See id. at 107-108. Here, however, the State presented direct evidence that
Wright claimed ownership of the black book bag (itself hidden behind a door in a
single room last occupied by Wright) in which the drugs, gun, and a scale were
found.15 Hargrove thus has limited precedential value here.16
15
While Wright also testified that he never claimed ownership of the black
book bag, his testimony in that regard neither (a) renders evidence of possession here
“entirely circumstantial” nor (b) has any bearing on the proper analysis under the
facts of this case — whether a rational jury could find that he possessed the items at
issue without the requisite intent. See Jackson, 306 Ga. at 78-80 (2) (b) (ii); Green,
39
In Moton, this Court engaged in no discussion of prosecutorial need vis-à-vis
the danger of unfair prejudice under Rule 403,17 but rather summarily concluded that
352 Ga. App. at 291 (2) (e) (i); Sloan, 351 Ga. App. at 209 (2) (e) (i); Chynoweth, 331
Ga. App. at 128 (3); see generally Division (2) (b) (ii), above.
16
On a related note, unlike the instant case, Hargrove involved a prosecution
based solely on “constructive possession,” which required the State to establish that
the defendant had “both the power and the intention at a given time to exercise
dominion or control over” the contraband at issue, which was found in multiple
rooms of a residence occupied by multiple people. 361 Ga. App. at 107, 109 (1)
(citation and punctuation omitted); see also id. at 114-115 (2) (c) (i) (concluding that
the other acts evidence was relevant to establish the “intent” element of constructive
possession). Moreover, while not expressly addressed in this Court’s decision, the
danger of unfair prejudice in Hargrove was substantially lower, insofar as the State
also presented evidence that, during the investigation into the charged crimes, the
defendant directly engaged in multiple drug transactions with an informant and also
engaged in multiple additional acts consistent with drug transactions. See id. at 107.
Here, however, the only direct evidence of Wright’s guilt came from the testimony
of a single witness and concerned only a single set of circumstances that occurred
during a short period of time at a single location, thereby rendering the danger of
unfair prejudice significant.
17
In its discussion of relevance under Rule 404 (b), this Court in Moton
observed that: (i) “to prove that [the defendant] had the requisite intent to sell, the
State had to prove that [he] also had methamphetamine under his control, as the State
alleged with his prior drug possession arrest”; and (ii) “[e]vidence of prior drug
activity is highly probative of intent to sell a controlled substance.” 351 Ga. App. at
792-793. The proposition that evidence of prior drug activity may be “highly
probative” of a defendant’s intent to sell drugs for purposes of relevance — in the
abstract — is a separate question from whether, on the specific facts of a given case,
a rational jury could find that a defendant possessed drugs but intended neither to do
so nor to distribute the drugs. See Sloan, 351 Ga. App. at 209 (2) (e) (i); see also
Olds, 299 Ga. at 75 (2) (“Relevance and probative value are related, but distinct,
40
the Rule 403 balancing test was satisfied because: (i) “[the defendant]’s possession
of drugs in the prior act and the sale in [a transaction then under prosecution]
occurred at the same location within two years of one another”; and (ii) “the risk of
unfair prejudice to [the defendant] was reduced by the [trial] court’s limiting
instruction, which was given both prior to [an] officer’s testimony [about the prior
act] and during the general jury charge.” 351 Ga. App. at 793-794. Absent any
substantive analysis of prosecutorial need, the decision in Moton also has little-to-no
precedential value with respect to the facts in this case.
Finally, in Gunn, this Court again engaged in no discussion of balancing
prosecutorial need against the danger of unfair prejudice under Rule 403, but rather
summarily determined that, “under the facts of [that] case,” the 11-year time span
between a prior conviction and the acts underlying the prosecution at issue did not
concepts. . . . When the fact for which the evidence is offered is undisputed or not
reasonably susceptible of dispute, the less the probative value of the evidence.”);
accord Old Chief, 519 U. S. at 184-185 (II) (B) (1) (distinguishing between
(a) relevance and (b) probative value under Rule 403). On the factual scenario
presented in this case, there is simply no likelihood that a rational jury would find
either that Wright unintentionally possessed the drugs and gun (found together in a
bag with a scale) or that, if he possessed them, he did not intend to distribute the
individually packaged drugs.
41
render the prior conviction “too remote to erode” its probative value.18 342 Ga. App.
at 621-622 (1). Absent any relevant analysis, Gunn’s precedential value here also is
limited, at best.19
For each of the above reasons, the trial court erred when it admitted the other
acts evidence for purposes of establishing Wright’s intent in the current prosecution.
(c) Lack of mistake. Wright never claimed, nor was there any evidence to
suggest, that he accidentally or mistakenly possessed the drugs and gun at issue in
18
Although the trial court in Gunn admitted the other acts evidence for
purposes of establishing motive, intent, and knowledge, 342 Ga. App. at 618 (1), this
Court addressed only intent to distribute on appeal, id. at 620-622 (1).
19
Two of the remaining decisions cited by the dissent — Bradshaw v. State,
296 Ga. 650 (769 SE2d 892) (2015) (prosecution for malice murder and other crimes
in connection with the shooting deaths of two victims); and Williams v. State, 328 Ga.
App. 876 (763 SE2d 261) (2014) (prosecution for burglary; other acts evidence
limited to a witness’s prior conviction) — also contain no substantive analysis
regarding the balancing of prosecutorial need against unfair prejudice where intent
easily may be inferred based on all of the circumstances. And the other remaining
decision cited by the dissent — Olds, 299 Ga. 65 (prosecution for false imprisonment
and battery), in which the Supreme Court vacated a decision of this Court and
remanded the case for this Court to engage in a proper Rule 403 analysis — supports
our ruling on this issue in this case. See id. at 75-76 (2) (observing that: (i) probative
value “depends on the marginal worth of the evidence — how much it adds, in other
words, to the other proof available to establish the fact for which it is offered”;
(ii) “[t]he stronger the other proof, the less the marginal value of the evidence in
question”; and (iii) application of the Rule 403 test “calls for a careful, case-by-case
analysis, not a categorical approach”).
42
this case. Consequently, whether the charged offenses resulted from an accident or
mistake was irrelevant. See, e.g., Brown, 303 Ga. at 161-162 (2) (holding that the trial
court erroneously admitted prior aggravated assault convictions to show absence of
mistake or accident where the defendant never claimed, and there was no evidence
to suggest, that the charged shooting was an accident or mistake); Thompson v. State,
302 Ga. 533, 541 (III) (A) (807 SE2d 899) (2017) (evidence of a subsequent armed
robbery was inadmissible to show mistake with respect to the charged shootings and
robberies because there was no allegation that the defendant “accidentally or
mistakenly shot the victims or that he accidentally or mistakenly stole their
property”); Parks, 300 Ga. at 306 (2) (a prior aggravated assault conviction was
inadmissible to show knowledge or absence of mistake in a prosecution for murder
and aggravated assault because the defendant’s knowledge was not at issue in light
of his justification defense, “and he made no claim that he accidentally or mistakenly
shot the victim”); compare Thompson, 308 Ga. at 859 (2) (in a murder prosecution,
evidence of the defendant’s prior acts of violence toward family members was
relevant to rebut his claim that his wife’s death resulted from accident or mistake).
The trial court therefore similarly erred in admitting the other acts evidence on this
basis.
43
(d) Harm. Having determined that the trial court erred when it admitted the
other acts evidence under Rules 403 and 404 (b), we must review the record de novo
to determine whether the error was harmless. Brown, 303 Ga. at 164 (2). “The test for
determining nonconstitutional harmless error is whether it is highly probable that the
error did not contribute to the verdict.” Id. (citation and punctuation omitted). In
making this assessment, “we weigh the evidence as we would expect reasonable
jurors to have done so, as opposed to assuming that they took the most pro-guilt
possible view of every bit of evidence in the case.” Id. (citation and punctuation
omitted).
As alluded to above, absent the other acts evidence, the remaining evidence of
Wright’s guilt was not overwhelming, but rather rested primarily on the testimony of
a single witness. And the jury reasonably could have found from Wright’s testimony
that he intended to claim ownership only of the small red and black bag, and not the
black book bag. Finally, the jury was erroneously charged that it could consider the
prior acts evidence for multiple improper reasons. As a result, the evidence was not
so overwhelming, and the improper other acts evidence was not so marginal, to render
it highly probable that the error did not contribute to the verdict. See Sloan, 351 Ga.
44App. at 211-212 (2) (f); accord Brown, 303 Ga. at 164 (2); Thompson, 302 Ga. at 542(III) (A). We therefore reverse Wright’s convictions on this basis.
3. Wright also contends that the evidence was insufficient to support his
convictions. We disagree.20
“When a criminal defendant challenges the sufficiency of the evidence
supporting his conviction, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Galvan
v. State, 330 Ga. App. 589, 592 (1) (768 SE2d 773) (2015) (citations and punctuation
omitted); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). “[I]t is the sole province of the trier of fact to resolve conflicts in
the testimony,” and this Court neither weighs the evidence nor determines witness
credibility. Evans v. State, 315 Ga. App. 863, 864 (729 SE2d 31) (2012). “[A]s long
as there is some competent evidence, even though contradicted, to support each fact
20
As discussed below, although we reverse Wright’s convictions on evidentiary
grounds, we address his challenge to the sufficiency of the evidence for purposes of
determining that he may be tried again. See Finney v. State, 311 Ga. 1, 18 (3) (b),
n. 30 (855 SE2d 578) (2021); Cowart v. State, 294 Ga. 333, 344 (6) (751 SE2d 399)
(2013).
45
necessary to make out the State’s case, the trier of fact’s verdict will be upheld.” Id.(citation and punctuation omitted).
Wright’s appellate challenge here is limited to his claims that insufficient
evidence connected him to the black book bag (and, necessarily, its contents) and that
what little evidence was presented on that issue was contradictory.21 It was the sole
province of the jury, however, to resolve the conflicts in the evidence, assess the
investigator’s and Wright’s credibility, and determine whether Wright possessed the
black book bag and its contents.22 See Browner v. State, 296 Ga. 138, 141 (1) (765
21
Our rulings in Division 1 dispose of Wright’s assertion that we should not
consider his statements claiming ownership of the black book bag and its contents in
determining the sufficiency of the evidence.
22
Although Wright makes no argument in this regard, for purposes of deciding
that he may be tried again, we conclude that the evidence was sufficient for the jury
to find that he intended to distribute the “spice.” See, e.g., Taylor v. State, 344 Ga.
App. 439, 441 (1) (810 SE2d 333) (2018) (intent to distribute could be inferred from,
inter alia, the amount of drugs, a law enforcement officer’s testimony that the volume
of drugs was consistent with distribution rather than personal use, and the presence
of a scale); Thomas v. State, 321 Ga. App. 214, 215-216 (1) (741 SE2d 298) (2013)
(intent to distribute could be inferred from, inter alia, the volume of drugs, how they
were concealed and packaged, and the fact that the defendant “lacked a device for
using the drugs”), disapproved in part on other grounds by Langley v. State,
No. S21G0783, 2022 Ga. LEXIS 14, at *13 (2), n. 7 (Feb. 1, 2022); see also Latta v.
State, 341 Ga. App. 696, 698-699 (1) (802 SE2d 264) (2017) (the intent with which
an act is done is “peculiarly a question of fact” for determination by the jury and may
be inferred from circumstantial evidence); Woods v. State, 302 Ga. App. 891, 893 (1)
46
SE2d 348) (2014) (“[r]esolving evidentiary conflicts and inconsistencies and
assessing witness credibility are the province of the fact finder, not the appellate
court,” and the trier of fact is not required to accept the defense presented by the
defendant). We find no error in this regard, as a result of which the State may retry
Wright if it so chooses. See Finney v. State, 311 Ga. 1, 18 (3) (b), n. 30 (855 SE2d
578) (2021); Cowart v. State, 294 Ga. 333, 344 (6) (751 SE2d 399) (2013).
Judgment reversed. McFadden, P. J., concurs and Rickman, C. J., dissents.
(691 SE2d 913) (2010) (a jury may infer intent based on all of the circumstances
“connected with the act for which the accused is prosecuted”) (citation and
punctuation omitted).
47
A21A1655. WRIGHT v. THE STATE.
RICKMAN, Chief Judge, dissenting.
Because the probative value of the other acts evidence was not substantially
outweighed by its unfair prejudice, I respectfully dissent.
I agree with the majority’s conclusion that the other acts evidence was relevant
to show Wright’s intent.1 The majority errs, however, in its application of the Rule
403 balancing test.
“Prior to the enactment of the new evidence code, Georgia had no direct
statutory equivalent to Rule 403, but case law on the issue generally required that a
1
Because the majority determined that the evidence was relevant to prove
intent, it was unnecessary to analyze whether the evidence was relevant to prove
knowledge and lack of mistake. See Bradshaw v. State, 296 Ga. 650, 657 n. 5 (3)
(769 SE2d 892) (2015).
trial court merely balance the probative value of evidence with its prejudicial effect
without requiring that the objecting party establish substantial prejudice.” (Footnote
omitted.) Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014). “In
stark contrast, the plain meaning of OCGA § 24-4-403’s text makes clear that the trial
court may only exclude relevant evidence when its probative value is ‘substantially
outweighed’ by one of the designated concerns.” Id.
“[T]he exclusion of evidence under Rule 403 is an extraordinary remedy which
should be used only sparingly.” (Citation and punctuation omitted.) Olds v. State, 299
Ga. 65, 70 (2) (786 SE2d 633) (2016). “Obviously, the reason for such caution is that
relevant evidence in a criminal trial is ‘inherently prejudicial,’ and, as a result, Rule
403 permits exclusion only when unfair prejudice substantially outweighs probative
value.” (Citation and punctuation omitted.) Williams, 328 Ga. App. at 879 (1). “The
primary function of Rule 403, then, is to exclude evidence of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial effect.”
(Citation and punctuation omitted.) Id. at 879-880 (1).
“The Rule 403 analysis requires a common sense assessment of all the
circumstances surrounding the extrinsic act and the charged offense including the
prosecutorial need for the extrinsic evidence, the overall similarity between the
2
extrinsic act and the charged offense, and the temporal remoteness of the other act.”
(Citation and punctuation omitted.) Hargrove v. State, 361 Ga. App. 106, 116 (2) (c)
(ii) (863 SE2d 364) (2021). “In reviewing issues 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.” Id.Here, the prior drug conviction is very similar to the charged offense and thus
highly probative to show Wright’s intent to both possess and distribute the charged
controlled substances. See Hargrove, 361 Ga. App. at 116 (2) (c) (iii). Regarding
prosecutorial need, the State had to overcome Wright’s defense that he did not
possess the bag containing the drugs. Wright’s sole contention at trial was that he was
merely present at the scene, there were no witnesses who testified that the bag was
Wright’s, and Wright argued that he never made the statements admitting ownership.
The majority confuses the prosecutorial need analysis by concluding that due
to the amount of drugs, the packaging, and scales, a juror would not conclude that the
perpetrator did not intend either to possess the drugs and gun or to distribute the
drugs. The question is not whether some hypothetical perpetrator intended to possess
the drugs, but whether Wright, who maintained he was merely present at the scene of
a crime with many other people, intended to possess the bag of drugs. To answer that
3
specific question, the prosecutorial need of a prior conviction for a similar crime was
high. “Thus, the State's need for evidence that [Wright] had committed similar crimes
was significant, which weighs in favor of admission under Rule 403.” Hargrove, 361
Ga. App. at 116-117 (2) (c) (iii). Additionally, the crimes only took place four years
apart and thus were not temporally remote from each other.
Accordingly, keeping in mind that the exclusion of evidence under Rule 403
is an extraordinary remedy to be used only sparingly, I disagree with the majority’s
conclusion that the trial court abused its discretion in finding that the probative value
of Wright’s convictions was substantially outweighed by unfair prejudice. See
Hargrove, 361 Ga. App. at 117 (2) (c) (iii) (holding that the trial court did not abuse
its discretion in finding the probative value of the defendant’s prior drug convictions
was not substantially outweighed by unfair prejudice in defendant’s trial for other
drug related offenses); Moton v. State, 351 Ga. App. 789,793-794 (833 SE2d 171)
(2019) (same); Gunn v. State, 342 Ga. App. 615, 620-622 (1) (804 SE2d 118) (2017)
(where defendant failed to establish that the trial court abused its discretion for
admitting a prior drug conviction for the purpose of intent).
4