Wilson v. the State , 336 Ga. App. 60 ( 2016 )

THIRD DIVISION
ELLINGTON, P. J.,
MCFADDEN, AND MERCIER, 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
March 3, 2016
In the Court of Appeals of Georgia
A15A1848. WILSON v. THE STATE.
MCFADDEN, Judge.
Kevin Wilson appeals from his conviction for aggravated assault against
William Cade. He challenges the sufficiency of the evidence, but it was sufficient to
support his conviction. He argues that the trial court erred in admitting evidence of
an earlier altercation he had with Cade’s sister (who was Wilson’s former girlfriend);
but we hold that the trial court did not abuse his discretion in admitting that evidence
as other act evidence under OCGA § 24-4-404 (b), and consequently we do not reach
the trial court’s alternative ground for admitting it. Finally Wilson argues that he
received ineffective assistance because his trial counsel objected to only one of the
two grounds upon which the trial court admitted that evidence; but as it was
admissible, Wilson’s trial counsel was not ineffective in failing to object to it on an
alternative ground. We therefore affirm.
1. Sufficiency of the evidence.
When a defendant challenges the sufficiency of the evidence supporting his
criminal 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.” Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;
emphasis in original). “As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s
verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001)
(citations and punctuation omitted).
Viewed in this light, the evidence showed that Wilson had been in a
relationship with Cade’s sister but the two had broken up in October 2011.
Nevertheless, Wilson continued to share an apartment with his former girlfriend, their
young child, and Cade, among others. On the morning of January 4, 2012, Wilson
intercepted his former girlfriend as she was leaving the apartment with the child in
her arms, approached her holding an open pocketknife with a six-inch blade, pointed
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the knife at her, backed her and the child into a corner outside the apartment,
threatened to cut her, and demanded that she give him the child. Wilson took the child
into the apartment and his former girlfriend called the police. She did not press
charges against Wilson but told the police and Wilson that she wanted him out of the
apartment. She also told Wilson that she would pack his belongings for him to
retrieve.
About 2:00 the next morning, Wilson returned to the apartment to retrieve his
belongings, which had been placed near the front door. He entered the bedroom he
had shared with his former girlfriend and began throwing things about and destroying
her personal property. Cade entered the room, and Wilson approached him, cursing,
talking about having pulled a knife on Cade’s sister, and “getting more and more . .
. hyped up.” Cade told Wilson to leave and the two began to argue. Wilson reached
for his knife and charged at Cade, who ran into another room; Wilson then grabbed
Cade around the waist and the two began fighting. During the fight, Wilson stabbed
Cade five times with the knife.
This evidence authorized the jury to find that Wilson committed aggravated
assault against Cade. See OCGA § 16-5-21 (b) (2) (“A person commits the offense
of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any
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object, device, or instrument which, when used offensively against a person, is likely
to or actually does result in serious bodily injury.”). Although Wilson challenges the
credibility of some of the state’s witnesses regarding his fight with Cade, it was for
the jury, rather than this court, to determine those witnesses’ credibility and resolve
any conflicts or inconsistencies in the evidence. Vega v. State, 285 Ga. 32, 33 (1) (673
SE2d 223) (2009).
2. Admission of “other acts” evidence under OCGA § 24-4-404 (b).
Pursuant to OCGA § 24-4-404 (b) (“Rule 404 (b)”), the trial court permitted
the state to introduce evidence of the earlier altercation between Wilson and his
former girlfriend for purposes other than to show Wilson’s character. Wilson argues
that this was error. We disagree.
“Rule 404 (b) permits the admission in cases of all sorts of evidence of ‘other
acts’ relevant to any fact of consequence in the determination of the action, so long
as the evidence is not offered to prove ‘the character of a person in order to show
action in conformity therewith.’” State v. Frost, 297 Ga. 296, 300 (773 SE2d 700)
(2015) (footnote omitted). It is “an evidentiary rule of inclusion which contains a non-
exhaustive list of purposes other than bad character for which other acts evidence is
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deemed relevant and may be properly offered into evidence.” State v. Jones, 297 Ga.
156, 159 (2) (773 SE2d 170) (2015) (citations omitted).
Georgia employs a three-prong test to determine the admissibility of evidence
of other acts under Rule 404 (b): “(1) the evidence must be relevant to an issue other
than defendant’s character; (2) the probative value must not be substantially
outweighed by undue prejudice; (3) the government must offer sufficient proof so that
the jury could find that defendant committed the act.” Bradshaw v. State, 296 Ga.
650, 656 (3) (769 SE2d 892) (2015) (citation and footnote omitted). As detailed
below, the trial court did not abuse his discretion in applying this test and admitting
the other acts evidence. See Curry v. State, 330 Ga. App. 610, 616 (1) (768 SE2d
791) (2015). (Because Wilson failed to provide the transcript of the Rule 404 (b)
hearing in the record on appeal, our review is limited to the trial record and the
transcript of the hearing on the motion for new trial, at which the Rule 404 (b) ruling
was discussed. See Smith v. State, 304 Ga. App. 708, 709 (1) (699 SE2d 742) (2010).)
(a) Prong one: relevance to an issue other than character. The trial court
admitted the evidence of Wilson’s altercation with his former girlfriend for the
purpose of proving his criminal intent, among other purposes. Wilson argues that this
purpose was improper because aggravated assault is a crime of general intent. See
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generally Cline v. State, 199 Ga. App. 532, 533 (2) (405 SE2d 524) (1991)
(“aggravated assault committed by means of a deadly or offensive weapon . . .
requires only a general criminal intent”) (citations omitted). But our Supreme Court
has held that “other acts evidence may be relevant under Rule 404 (b), without regard
to whether the charged crime is one requiring a specific or general intent, when it is
offered for the permissible purpose of showing a criminal defendant’s intent[.]”
Jones, supra, 297 Ga. at 162 (2) (citation omitted). And Wilson’s counsel argued to
the jury at trial that Wilson’s lack of criminal intent was “the biggest thing” in the
case.
In this case, the state of mind required for the charged offense (aggravated
assault against Cade) was the same as the state of mind required for the uncharged act
against Wilson’s former girlfriend (an act that also could constitute an aggravated
assault). In both instances, Wilson intentionally pulled a knife during an altercation.
See generally Dunagan v. State, 269 Ga. 590, 594 (2) (b) (502 SE2d 726) (1998)
(offense of aggravated assault can require “criminal intent to commit the acts which
caused the victim to be reasonably apprehensive of receiving a violent injury”).
“[W]hen the state of mind required for the charged and extrinsic offenses is the same,
the first prong of the Rule 404 (b) test [relevance] is satisfied.” Bradshaw, supra, 296
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Ga. at 657 (3). Accord Silvey v. State, __ Ga. App. __, __ (1) (a) (__ SE2d __) (Case
No. A15A1139, decided Nov. 20, 2015). “Having determined that the evidence was
admissible as to intent . . . , we need not examine whether it was also admissible on
the [other issues for which the trial court admitted it].” Bradshaw, supra, 296 Ga. at
657 (3) n. 5 (citation omitted).
(b) Prong two: undue prejudice does not substantially outweigh probative
value. Wilson argues that the evidence of his earlier altercation with his former
girlfriend should have been excluded on the ground that, under OCGA § 24-4-403
(“Rule 403”), “[r]elevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” But “[i]t is only unfair
prejudice, substantially outweighing probative value, which permits exclusion of
relevant matter under Rule 403.” United States v. Terzado-Madruga, 897 F2d 1099,
1119 (B) (11th Cir. 1990) (citation omitted; emphasis in original), cited by Bradshaw,
supra, 296 Ga. at 658 (3). “Rule 403 is an extraordinary remedy that must be used
sparingly because it results in the exclusion of concededly probative evidence.”
United States v. US Infrastructure, 576 F3d 1195, 1211 (II) (B) (2) (11th Cir. 2009)
(citation omitted). Even in close cases, “the balance . . . is struck in favor of
admissibility in determining whether its probative value is outweighed by the danger
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of unfair prejudice.” Terzado-Madruga, supra, 897 F2d. at 1119 (B). Although
Wilson argues to this court that the probative value of evidence of the earlier
altercation was “low or non-existent,” the evidence was probative of the issue of his
intent, which, as mentioned above, his trial counsel argued to the jury was “the
biggest thing” in the case. The trial court did not abuse his discretion in balancing the
other act’s probative value against its prejudicial effect. See Bradshaw, supra, 296
Ga. at 657 (3).
(c) Prong three: proof that Wilson committed the other act. Although Wilson
argues that the evidence “was insufficient to show that this prior bad act even
occurred at all,” his former girlfriend testified that Wilson had accosted and
threatened her with the knife and another person testified to witnessing that
altercation. This evidence was sufficient for the jury to find by a preponderance of the
evidence that the other act was committed, thereby satisfying the third prong required
for the admission of the other act evidence under Rule 404 (b). Bradshaw, supra, 296
Ga. at 658 (3).
3. Admission of “other acts” evidence on alternative ground.
Wilson argues that the trial court erred in admitting the evidence of his
altercation with his former girlfriend on an alternative ground – that the altercation
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was intrinsic to the subsequent aggravated assault against Cade. See generally United
States v. Wilson, 788 F3d 1298, 1313-1314 (II) (A) (11th Cir. 2015) (11th Cir. 2015)
(discussing admissibility of intrinsic evidence). Given our determination that the trial
court did not err in admitting the evidence under Rule 404 (b), we need not address
this claim of error.
4. Ineffective assistance of counsel.
Wilson argues that his trial counsel was ineffective in failing to challenge
admissibility of the evidence of his altercation with his former girlfriend as intrinsic
evidence. We find no merit to Wilson’s argument because, as discussed above, the
evidence was admissible on another ground, under Rule 404 (b). See Daughtie v.
State, 297 Ga. 261, 266 (4) (773 SE2d 263) (2015) (counsel is not obligated to object
to admissible evidence).
Judgment affirmed. Ellington, P. J., and Mercier, J., concur.
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