Jones v. the State , 339 Ga. App. 95 ( 2016 )

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.
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.
http://www.gaappeals.us/rules
October 13, 2016
In the Court of Appeals of Georgia
A16A1279. JONES v. THE STATE.
DILLARD, Judge.
Following a trial by jury, Torrell Jones was convicted of possessing a
controlled substance outside of its original container, trafficking in heroin, and
possessing heroin with the intent to distribute. Jones appeals from the trial court’s
denial of his motion for new trial, contending that (1) the State failed to present
sufficient evidence to support his conviction for trafficking in heroin; (2) the court
improperly admitted into evidence a recorded telephone call between Jones and a
person who did not testify at trial; (3) the court erred by permitting a law-enforcement
officer to testify about the effects of heroin; (4) the court failed to consider the
conviction as the “thirteenth juror” when it denied his motion for new trial; and (5)
the court erred in denying a motion for mistrial after an improper comment from a
State witness. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the record reflects that
in April 2012, law enforcement received information that, upon placing a phone call
to a certain individual, a black Chrysler 300 would approach a Piggly Wiggly in
Athens, Georgia, traveling from the east on Highway 78, for purposes of making a
drug transaction. As a result of this information, law enforcement searched the area
around the Piggly Wiggly and located a black Chrysler 300 parked in front of a
nearby apartment. Officers then learned through a trace of the license plate that the
vehicle belonged to Torrell Jones and another person not relevant to this appeal.
With this information in hand, law enforcement engaged in surveillance of the
black Chrysler 300 at the apartment complex, and an officer was instructed to stop the
vehicle if it left the apartment and was en route to the Piggly Wiggly following a
monitored phone call. A call was then placed by an informant and recorded by law
enforcement, with a detective monitoring the call as it was made. During the call, a
negotiation was made for a drug transaction. Then, after the call concluded, officers
observed the black Chrysler 300 depart from the apartment complex and travel to the
1
See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).
2
Piggly Wiggly with Jones driving. A stop was executed, and in addition to Jones,
officers encountered a passenger, Nytasia Pope, who appeared to be “very nervous.”
Officers found $3,100 in cash on Jones, and a small bag containing 1.89 grams of
heroin was found hidden in Pope’s private area. After interacting with Jones during
the investigation, the detective who monitored the earlier call identified Jones and
Pope’s voices as those heard on the receiving end of the call placed by the informant.
After their vehicle was stopped, Jones and Pope were taken back to the
apartment where the vehicle had previously been parked, and officers subsequently
executed a search warrant at the residence. Inside the apartment’s kitchen, officers
located a tea box containing a bag of rice surrounding another plastic bag with 81.68
grams of heroin—the largest amount of heroin ever seized at one time in Athens-
Clarke County. Additionally, officers found a small knife, a mortar, and a pestle, all
with residue that was consistent with heroin. They also located tally sheets used to
record drug transactions, a bottle of a cutting agent commonly used in the distribution
of heroin, and three sets of digital scales. Finally, officers located a checkbook with
Jones’s name and the address of that apartment. Jones was subsequently tried for and
convicted of the offenses enumerated supra. This appeal follows.
3
At the outset, we note that when a criminal conviction is appealed, the
appellant no longer enjoys a presumption of innocence,2 and the relevant question is
whether, “after reviewing 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.”3 We are not at liberty to weigh the evidence or determine witness
credibility, and the jury’s verdict will be upheld so long as there is some competent
evidence, even though contradicted, to support each fact necessary to make out the
State’s case.4 With these guiding principles in mind, we turn now to Jones’s
enumerations of error.
1. First, Jones challenges the sufficiency of the evidence as to his conviction
for trafficking in heroin. Specifically, Jones contends that the evidence was
insufficient to show that he constructively possessed the heroin discovered in the
2
Arbegast v. State, 332 Ga. App. 414, 415 (1) (773 SE2d 283) (2015);
Westbrooks v. State, 309 Ga. App. 398, 399 (1) (710 SE2d 594) (2011).
3
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
4
Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001); Westbrooks, 309
Ga. App. at 399-400 (1).
4
apartment and that, even if he did possess the heroin, the evidence was insufficient
to show that he knew the weight of the heroin. We disagree as to both contentions.
(a) Jones jointly and constructively possessed the heroin. Jones maintains that
the evidence was insufficient to show that he constructively possessed the heroin
discovered in the apartment’s kitchen. We disagree.
At the time Jones was alleged to have committed trafficking in heroin (April
23, 2012), OCGA § 16-13-31 (b) provided that “[a]ny person who knowingly sells,
manufactures, delivers, brings into this state, or has possession of 4 grams or more
of . . . heroin, as described in Schedules I and II, . . . commits the felony offense of
trafficking in illegal drugs[.]”5 It is well established that possession of drugs can be
“actual or constructive, sole or joint.”6 A person has actual possession of a thing if he
or she “knowingly has direct physical control of it at a given time.”7 And a person
who, though not in actual possession, “knowingly has both the power and intention
at a given time to exercise dominion or control over a thing is then in constructive
5
Former OCGA § 16-13-31 (b) (2012).
6
Maddox v. State, 322 Ga. App. 811, 812 (746 SE2d 280) (2013) (punctuation
omitted); accord Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010).
7
Maddox, 322 Ga. App. at 812 (punctuation omitted); accord Vines v. State,
296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009).
5
possession of it.”8 Finally, if one person alone has actual or constructive possession
of a thing, that person has sole possession, but “if two or more persons share actual
or constructive possession of a thing, possession is joint.”9
Here, Jones and Pope were jointly indicted for possessing more than 28 grams
of heroin.10 And as we have previously held, the equal-access rule11 has no application
when, as here, “all persons having access to the contraband are alleged to have been
in joint, constructive possession of that contraband.”12 Of course, when constructive
8
Maddox, 322 Ga. App. at 812 (punctuation omitted); accord Vines, 296 Ga.
App. at 545 (1).
9
Maddox, 322 Ga. App. at 812 (punctuation omitted); accord Vines, 296 Ga.
App. at 545 (1).
10
Pope was not tried with Jones.
11
We note that the equal-access defense is “based on the rule that merely
finding contraband on premises occupied by a defendant is not sufficient to support
a conviction if it affirmatively appears from the evidence that persons other than the
defendant had equal opportunity to commit the crime.” Nelson v. State, 199 Ga. App.
487, 487-88 (1) (405 SE2d 310) (1991) (punctuation omitted); see also Ely v. State,
241 Ga. App. 896, 898 (528 SE2d 532) (2000) (“[T]he equal access rule applies only
if persons other than the defendant and members of his immediate household had
equal opportunity to commit the crime.”).
12
McDade v. State, 175 Ga. App. 204, 205 (1) (332 SE2d 672) (1985); see,
e.g., McCants v. State, Case No. A16A1177, 2016 WL 5407551, at *3 (Ga. App.
Sept. 28, 2016) (“The [equal-access] rule, conceptually and historically, has no
application [when], as here, all persons allegedly having equal access to the
contraband are alleged to have been in joint constructive possession of that
6
possession is based upon circumstantial evidence, the facts must both be consistent
with the hypothesis of guilt and exclude every other reasonable hypothesis.13 The
proved facts, however, need exclude only “reasonable hypotheses—not bare
possibilities that the crime could have been committed by someone else,”14 and the
jury generally decides questions of reasonableness.15
contraband.” (punctuation omitted)); Castillo v. State, 166 Ga. App. 817, 822 (305
SE2d 629) (1983) (same).
13
Prather v. State, 293 Ga. App. 312, 313 (1) (667 SE2d 113) (2008); see also
O’Neill v. State, 285 Ga. 125, 125 (674 SE2d 302) (2009) (“The law is
well-established that to warrant a conviction based on circumstantial evidence, the
State must prove not only that the evidence is consistent with the hypothesis of guilt,
but that every other reasonable hypothesis of nonguilt is excluded.” (punctuation
omitted)).
14
Prather, 293 Ga. App. at 313 (1) (punctuation omitted); see also Samsell v.
State, 222 Ga. 235, 238 (1) (149 SE2d 367) (1966) (“It is not necessary to sustain a
conviction based upon circumstantial evidence, that the evidence exclude every
possibility or every inference that may be drawn from the proven facts, but only that
it exclude every reasonable inference and reasonable hypothesis.”).
15
Prather, 293 Ga. App. at 313 (1); see also Chapa v. State, 288 Ga. 505, 506
(1) (705 SE2d 646) (2011) (“Questions as to reasonableness are generally to be
decided by the jury which heard the evidence and where the jury is authorized to find
that the evidence, though circumstantial, was sufficient to exclude every reasonable
hypothesis save that of guilt, the appellate court will not disturb that finding, unless
the verdict of guilty is unsupportable as a matter of law.” (punctuation omitted)).
7
As previously noted, the 81.68 grams of heroin were discovered inside of a tea
box in the kitchen of the apartment. And during a protective sweep performed before
execution of the search warrant, officers did not locate any other individuals inside
the apartment.16 Later, officers found a checkbook inside the apartment that listed
both the apartment’s address and Jones’s name. Moreover, in addition to the large
amount of heroin found hidden in the tea box, officers also discovered numerous
other items throughout the apartment that were related to the distribution of heroin
and were not hidden—i.e., the drug-transactions tally sheet; three sets of digital scales
(one of which was in the kitchen with powder residue and rice fragments); the knife,
mortar, and pestle with residue consistent with heroin; and the cutting agent
commonly used in the distribution of powdered drugs. Finally, when Jones and Pope
were searched, officers discovered $3,100 in cash on Jones and a small baggie of
heroin hidden in Pope’s private area. This combined circumstantial evidence was
16
When officers surveilled Jones’s vehicle as it was parked at the subject
apartment—with the exception of a person who arrived and left after only two to
three minutes and another person who left but whose arrival had not been
observed—law enforcement did not see anyone else arrive at or leave the apartment
except for Jones and Pope, who departed after the monitored phone call in which
Jones negotiated a drug transaction.
8
sufficient for the jury to conclude that Jones jointly and constructively possessed the
large quantity of heroin discovered in the kitchen.17
(b) Jones knew the weight of the heroin. Jones also argues that even if the
evidence was sufficient to show that he constructively possessed the heroin located
in the kitchen, the evidence was insufficient to show that he knew the weight of the
heroin exceeded 28 grams. Again, we disagree.
As previously noted, at the time Jones was alleged to have committed
trafficking in heroin (April 23, 2012), OCGA § 16-13-31 (b) provided that “[a]ny
17
See Cox v. State, 300 Ga. App. 109, 111 (684 SE2d 147) (2009) (holding that
evidence was sufficient to find that defendant constructively possessed narcotics
discovered in kitchen when “[defendant’s] personal papers were found in the
apartment, and the fact that he had a key to the apartment support[ed] the jury’s
finding that [the defendant] possessed control over the apartment”); Whitfield v. State,
217 Ga. App. 402, 405 (3) (457 SE2d 682) (1995) (holding that evidence was
sufficient to show defendant’s constructive possession of controlled substances when,
although others were present in apartment at time substances were seized, defendant
resided in apartment with named lessee, a large amount of cash was found on
defendant’s person, and defendant had previously sold cocaine). Cf. Jackson v. State,
306 Ga. App. 33, 36 (1) (b) (701 SE2d 481) (2010) (holding that evidence was
insufficient to find that defendant constructively possessed baggies of cocaine
discovered in upstairs bedroom of apartment when defendant was located on the first
floor of apartment as law enforcement entered and was “trying to eat a baggie of
marijuana,” but “[n]o other drugs, drug-related paraphernalia, or cash were found on
the first floor” and “no evidence was introduced to show that [the defendant] resided
in the apartment, which might authorize an inference that he possessed the property
therein”).
9
person who knowingly sells, manufactures, delivers, brings into this state, or has
possession of 4 grams or more of . . . heroin, as described in Schedules I and II, . . .
commits the felony offense of trafficking in illegal drugs[,]”18 and “[i]f the quantity
of such substances involved is 28 grams or more, the person shall be sentenced to a
mandatory minimum term of imprisonment of 25 years and shall pay a fine of
$500,000.00.”19
In Scott v. State,20 the Supreme Court of Georgia ruled that the plain language
of the statute, as it then existed,21 “dictates the conclusion that knowledge of the
quantity of the drug was an element of the crime.”22 In so holding, the Court
explained that this (prior) version of the statute “contains express scienter
requirements, that is, knowledge of the nature and amount of the drug and of being
18
Former OCGA § 16-13-31 (b) (2012) (emphasis supplied).
19
Former OCGA § 16-13-31 (b) (3) (2012).
20
295 Ga. 39 (757 SE2d 106) (2014).
21
The General Assembly amended the statute, effective July 1, 2013, to remove
“knowingly.” See Ga. Laws 2013, Act 84, § 4; see also Scott, 295 Ga. at 41 (2)
(explaining that “[i]n a 2013 amendment to OCGA § 16-13-31, the General Assembly
deleted ‘knowingly’”).
22
Scott, 295 Ga. at 40 (1).
10
in possession of it.”23 Thus, because “knowledge” was part of the offense, our
Supreme Court held that the State had the burden of proving the defendant’s guilty
knowledge.24 Accordingly, in prosecutions for this offense under the prior statute, the
State was required to prove that the defendant had knowledge of the weight of the
controlled substance.25
Here, the quantity of heroin discovered in the kitchen weighed 81.68 grams—
nearly three times the threshold weight of 28 grams under the relevant statute. And
as discussed supra, although the heroin was hidden within a tea box in the kitchen,
other items commonly associated with drug distribution were located in the kitchen
in plain view—including a digital scale, a cutting agent, cutting tools, and a tally
sheet to record amounts of drugs sold. This circumstantial evidence was sufficient to
show that Jones knew that the heroin found in the kitchen weighed 28 grams or
more.26
23
Id.
24
Id.
25
Id. at 42 (3).
26
See Scott v. State, 331 Ga. App. 395, 398 (1) (771 SE2d 93) (2015) (holding
that evidence was sufficient to show that defendant knew he possessed at least 28
grams of cocaine when the discovered cocaine weighed more than double the amount
11
2. Next, Jones asserts that the trial court erred in permitting the State to play
a recording of the monitored phone call between the informant and Jones when the
informant did not testify at trial. Jones asserts both that the informant’s statements
amounted to inadmissible hearsay and that he was deprived of his Sixth Amendment
right of confrontation.27 Yet again, we disagree.
The recording of the monitored phone call reflects that when the call was
placed, Pope answered and then handed the phone to Jones when the informant asked
for “TJ.” The informant then told Jones that he needed a “G,” and Jones replied,
“Alright. I got you.” The informant also inquired as to whether Jones had another
for trafficking, and officers discovered tools used to weigh and distribute the drug);
Robinson v. State, 331 Ga. App. 872, 877 (772 SE2d 223) (2015) (physical precedent
only) (holding that evidence was sufficient to show defendant knew weight of cocaine
when cocaine weighed nearly ten times the statutory trafficking threshold amount);
Freeman v. State, 329 Ga. App. 429, 432 (1) (765 SE2d 631) (2014) (holding that
evidence was sufficient to show defendant knew that he possessed more than 28
grams of crack cocaine when, inter alia, the discovered crack cocaine weighed nearly
two times the trafficking threshold and was hidden in a plastic bag in defendant’s
bedroom). Cf. Childs v. State, 330 Ga. App. 727, 731 (1) (769 SE2d 147) (2015)
(holding that evidence was insufficient to show that defendant knew weight of
cocaine when quantity was just in excess of 28 grams and there was no evidence of
scales or other items used to measure, weigh, or package contraband).
27
See U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him[.]”); see also GA.
CONST. art. 1, § 1, ¶ XIV (“Every person charged with an offense against the laws of
this state . . . shall be confronted with the witnesses testifying against such person.”).
12
unintelligible substance available, and Jones replied, “No, not at all. Not right now.”
The informant then asked about a price break on “two Gs,” to which Jones responded,
“No, it’s still $150. Let me know what you got [sic] toward the second one and I’ll
work with you.” Hearing this, the informant advised Jones that he could “throw you
$75 now for the second one” or, in other words, pay “half of it.” Jones responded,
“Oh yeah. Bring the other piece. Yeah, I could do that for you.” The detective who
monitored the call testified that, based upon his training and experience, this
conversation was a negotiation of a drug transaction, and that “G” is a slang term
used to refer to a gram of heroin.
In admitting the recording,28 the trial court ruled that the informant’s statements
were admissible to provide context for Jones’s responses to those statements, not that
the informant’s statements were admitted to prove the truth of the matter asserted.29
28
We note that because this case was tried after January 1, 2013, our new
Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s
new Evidence Code applies “to any motion made or hearing or trial commenced on
or after” January 1, 2013).
29
See OCGA § 24-8-801 (c) (defining “hearsay” as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted”);OCGA § 24-8-802 (“Hearsay shall not be
admissible except as provided by this article; provided, however, that if a party does
not properly object to hearsay, the objection shall be deemed waived, and the hearsay
evidence shall be legal evidence and admissible.”).
13
As for Jones’s statements, the court determined that they were admissible as
admissions of a party opponent.30 Jones argues that the trial court erred in making
these determinations.
In a case that predates the decision of the Supreme Court of the United States
in Crawford v. Washington,31 the United States Court of Appeals for the Eleventh
Circuit held that the introduction of taped conversations did not violate a defendant’s
Sixth Amendment right to confrontation when “the trial court ruled that the tapes as
they relate to [the non-testifying speaker] are not offered to prove the truth of the
matter, and are therefore not hearsay.”32 And because the statements were not
30
See OCGA § 24-8-801 (d) (2) (A) (“Admissions shall not be excluded by the
hearsay rule. An admission is a statement offered against a party which is[ ] . . . [t]he
party’s own statement, in either an individual or representative capacity[.]”); see also
RONALD L. CARLSON & MICHAEL SCOTT CARLSON, CARLSON ON EVIDENCE 534 (4th
ed. 2016) (“While courts and commentators refer to ‘admissions,’ statements
admissible under the doctrine need not ‘admit’ anything in the colloquial sense of the
word. Rather, the doctrine covers any statement that a party has made that is offered
against him at a later trial.”).
31
541 U.S. 36, 50-51 (124 SCt 1354, 158 LE2d 177) (2004) (holding that the
Confrontation Clause applies with equal force to in-court testimony and “testimonial”
out-of-court statements).
32
United States v. Price, 792 F2d 994, 996 (11th Cir. 1986).
14
inadmissible hearsay, “but rather were offered to put into context those statements of
[the defendant], [the non-testifying speaker] is not subject to impeachment[.]”33
Post-Crawford, the Eleventh Circuit has continued to hold that statements
offered by a non-testifying speaker are not hearsay and do not violate the
Confrontation Clause when the statements are “not offered for their truth, but only to
place . . . [the defendant’s] statements in context.”34 And here, that is exactly what the
informant’s recorded statements did—provided context for Jones’s portion of the
33
Id.34
United States v. Makarenkov, 401 Fed. Appx. 442, 445 (I) (11th Cir. 2010);
see United States v. Boykins, 380 Fed. Appx. 930, 933 (II), 934 (II) (11th Cir. 2010)
(noting that “a confidential informant’s recorded statements offered . . . to give
context to a defendant’s statements are not hearsay because they are not offered for
the truth of the matter asserted,” and holding that “the district court did not err in
admitting the recorded conversations because they were neither hearsay nor barred
by the Confrontation Clause,” the defendant’s “statements on the tape are not hearsay
because they are his own admissions,” and the informant’s statements “are not
hearsay because they were not offered for the truth of the matter asserted”); United
States v. Valdes, 214 Fed. Appx. 948, 950 (I) (11th Cir. 2007) (holding that district
court did not err in admitting recorded conversations between defendant and non-
testifying informant when defendant’s statements were admissions of a party
opponent and non-testifying informant’s statements were “admitted not to prove the
truth of the informant’s statements but to provide context for [the defendant’s] half
of the telephone conversations”).
15
telephone conversation, which entailed admissions of a party opponent.35 Thus,
because the informant’s statements were not hearsay, “and because the Confrontation
Clause does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted,”36 the trial court did not err in admitting
the recording, and this enumeration of error is without merit.37
3. Jones also argues that the trial court erred by permitting a law-enforcement
officer to testify about the pernicious effects of heroin and addiction. We disagree that
the trial court abused its discretion in this regard.38
35
See United States v. Tolliver, 454 F3d 660, 662-63 (I), 665-66 (II) (A) (7th
Cir. 2006) (Manion, J.) (holding that the admission of recorded conversations
entailing controlled purchases of crack cocaine did not violate the Confrontation
Clause when, although participant did not testify, his “statements were admissible to
put [the defendant’s] admissions on the tapes into context, making the admissions
intelligible for the jury,” and further holding that defendant’s statements were
admissions of a party opponent).
36
Valdes, 214 Fed. Appx. at 950 (I) (punctuation omitted).
37
See Tolliver, 454 F3d at 662-63 (I), 665-66 (II) (A); see also United States
v. Gajo, 290 F3d 922, 930 (II) (A) (7th Cir. 2002) (“[S]tatements are not hearsay to
the extent they are offered for context and not for the truth . . . of the matter
asserted.”).
38
See, e.g., Thornton v. Hemphill, 300 Ga. App. 647, 650 (2) (686 SE2d 263)
(2009) (“[T]he trial court has wide discretion to admit testimony of questionable
relevance.” (punctuation omitted)); Collins & Assocs. v. Henry Cnty. Water &
Sewerage Auth., 290 Ga. App. 782, 784 (2) (661 SE2d 568) (2008) (same).
16
Over numerous objections by Jones, the State was permitted to present the
testimony of an officer who described heroin’s deleterious effect on individuals and
its addictive nature. The State argued that this testimony “puts in context what the
substance is” and that it was “trying to provide some context for what heroin is.” And
on appeal, the State further argues that the testimony was “relevant to explain . . . why
someone may engage in an enterprise to distribute heroin and possess a trafficking
amount,” to “demonstrate . . . how heroin’s effect on [a] user . . . would provide a
motive for an individual to engage in distributing heroin to make money,” and to
explain why heroin is a Schedule I controlled substance.
The State’s assertions as to the relevancy of the subject testimony are not
especially convincing, but OCGA § 24-4-401 sets a low threshold for relevancy,39
39
See OCGA § 24-4-401 (“As used in this chapter, the term ‘relevant evidence’
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.”); see also OCGA § 24-4-402 (“All relevant
evidence shall be admissible, except as limited by constitutional requirements or as
otherwise provided by law or by other rules, as prescribed pursuant to constitutional
or statutory authority, applicable in the court in which the matter is pending. Evidence
which is not relevant shall not be admissible.”). See generally CARLSON, supra note
30, at 98 (“Rule 401 is a clear statutory preference for jurors to hear all admissible
and helpful evidence because there is a correlation between the amount of
information admitted and the accuracy of verdicts.” (quoting Lee D. Schinasi,
Teaching the “Portraits, Mosaics and Themes” of the Federal Rules of Evidence, 29
MISS. C. L. REV. 83, 93 (II) (A) (1) (2010)).
17
while OCGA § 24-4-403 requires that relevant evidence be “substantially outweighed
by the danger of unfair prejudice”40 in order to be excluded.41 And in evaluating a trial
court’s ruling under OCGA § 24-4-403, we must “view the evidence in the light most
favorable to admission, maximizing its probative value and minimizing its undue
prejudicial impact.”42 Given these considerations, we affirm the trial court’s
admission of the testimony in question.43
40
OCGA § 24-4-403 (emphasis supplied). See generally CARLSON, supra note
30, at 97 (“The adoption of the prejudice standard from the Federal Rules of Evidence
marks a change authorizing the admission of a greater volume and variety of evidence
for litigants at trial. This is because it places a heavier burden on parties seeking to
exclude evidence on grounds of prejudice, requiring them to demonstrate that its
probative value is substantially outweighed by the danger of unfair prejudice.”).
41
See OCGA § 24-4-403 (“Relevant 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.”).
42
United States v. LaFond, 783 F3d 1216, 1222 (III) (A) (11th Cir. 2015)
(punctuation omitted); accord United States v. Bradberry, 466 F3d 1249, 1253 (I)
(11th Cir. 2006).
43
See United States v. Worthington, 145 F3d 1335 (Table), 1998 WL 279379,
at *8 (II) (D) (3) (6th Cir. 1998) (affirming district court’s admission of testimony as
to the effects of crack cocaine addiction on the body, despite less than
overwhelmingly convincing arguments by the prosecution as to the testimony’s
relevancy, because Rule 401 sets low threshold as to relevancy, Rule 403 sets high
threshold for exclusion, and district court’s decision must be reviewed with high level
of deference); see also Bradberry, 466 F3d at 1253 (I) (“[T]he [trial] court is uniquely
18
4. Next, Jones contends that the trial court failed to consider the conviction as
the “thirteenth juror” when it denied his motion for new trial. Once again, we
disagree.
On motion for new trial, even if the evidence is legally sufficient to sustain a
conviction, the trial court may order a new trial if the “verdict of a jury is found
contrary to evidence and the principles of justice and equity”44 or if the verdict is
“decidedly and strongly against the weight of the evidence even though there may
appear to be some slight evidence in favor of the finding.”45 That said, the trial court’s
discretion to grant a new trial under these circumstances “should be exercised with
caution and invoked only in exceptional cases in which the evidence preponderates
heavily against the verdict.”46 And in exercising discretion as the “thirteenth juror,”
situated to make nuanced judgments on questions that require the careful balancing
of fact-specific concepts like probativeness and prejudice, and we are loathe to
disturb the sound exercise of its discretion in these areas. Close questions of
admissibility under Rule 403 give rise to the abuse of discretion standard of review
and fall squarely within the ambit of the [trial] court’s sound discretion.” (citation and
punctuation omitted)).
44
OCGA § 5-5-20.
45
OCGA § 5-5-21.
46
Wiggins v. State, 330 Ga. App. 205, 210 (c) (767 SE2d 798) (2014)
(punctuation omitted); accord White v. State, 293 Ga. 523, 524 (2) (753 SE2d 115)
19
the trial court must consider some of the things that it cannot when “assessing the
legal sufficiency of the evidence, including any conflicts in the evidence, the
credibility of witnesses, and the weight of the evidence.”47 When the record reflects
that the trial court failed to exercise this discretion, we will vacate and remand for the
court to fulfill this obligation.48
Here, Jones argues that it cannot be determined by the trial court’s order
whether the court exercised its discretion as the “thirteenth juror.” But as the State
correctly notes, nothing in the trial court’s order indicates that it did not exercise its
discretion or that it in any way applied the incorrect standard to its review.49 And as
we have previously explained,
(2013).
47
Wiggins, 330 Ga. App. at 210 (c) (punctuation omitted); accord White, 293
Ga. at 524 (2).
48
Leggett v. State, 331 Ga. App. 343, 344 (2) (771 SE2d 50) (2015); Copeland
v. State, 325 Ga. App. 668, 672 (3) (754 SE2d 636) (2014).
49
Cf. Wiggins, 330 Ga. App. at 211 (c) (“[T]here is no evidence that the . . .
judge exercised discretion, weighed the evidence, and determined as the ‘thirteenth
juror’ whether the verdict was against the great weight of the evidence or offended
the principles of justice and equity. The order denying [the] motion for new trial
shows that the trial court made only the legal determination that the evidence was
sufficient . . . .”).
20
in interpreting the language of an order overruling a motion for a new
trial, it must be presumed that the trial judge knew the rule as to the
obligation thus devolving upon him, and that in overruling the motion
he did exercise this discretion, unless the language of the order indicates
to the contrary and that the trial judge agreed to the verdict against his
own judgment and against the dictates of his own conscience, merely
because he did not feel that he had the duty or authority to override the
findings of the jury upon disputed issues of fact.50
There being no such indication here, this enumeration of error is without merit.
5. Finally, Jones argues that the court erred in denying a motion for mistrial
after an improper comment from a State witness. But because Jones failed to provide
citations to the record and legal authorities in support of this contention, he has
abandoned it for appellate review.51
50
Leggett, 331 Ga. App. at 344-45 (2) (punctuation omitted); accord Conley
v. State, 329 Ga. App. 96, 100 (2) (763 SE2d 881) (2014).
51
See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not
supported in the brief by citation of authority or argument may be deemed
abandoned.”); Court of Appeals Rule 25 (c) (2) (i) (“Each enumerated error shall be
supported in the brief by specific reference to the record or transcript. In the absence
of such reference, the Court will not search for or consider such enumeration.”); see
also Slmbey v. State, 288 Ga. App. 717, 718 (655 SE2d 223) (2007) (deeming
arguments abandoned due to failure to provide citations to the record and supporting
legal authority).
21
For all of the foregoing reasons, we affirm Jones’s convictions.
Judgment affirmed. Peterson, J., concurs. Phipps, P. J., concurs in Divisions
1, 2, 4, and 5 and in the judgment only in Division 3.
22