Marcellous N. Allen v. State ( 2021 )

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 4, 2021
In the Court of Appeals of Georgia
A21A0709. ALLEN v. THE STATE.
BROWN, Judge.
Following a jury trial, Marcellous Allen was convicted of three counts of
violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1
et seq. He appeals his convictions and the denial of his motion for new trial,
challenging the sufficiency of the evidence and contending that his convictions
violate his constitutional right to free association. Allen also contends that the trial
court erred in (1) admitting a recording over his hearsay and Confrontation Clause
objections; (2) admitting evidence of Allen’s gang involvement; and (3) denying his
motions for mistrial. For the reasons that follow, we affirm.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” (Citation and punctuation omitted.) Solomon v. State, 342 Ga. App. 836(805 SE2d 293) (2017). So viewed, the record shows that around 3:00 p.m. on
October 3, 2017, a “shootout” occurred outside the G&T Snack Bar in Hartwell.
Employees working in nearby offices testified that they heard multiple sets of gunfire
and observed men running by outside, including one man wearing a white tank top
who was armed with a gun. Police responded to the shooting and after speaking with
witnesses, learned that Ray Tate, Allen, and some other men were involved in the
shootout. Shortly after the incident, police found Tate hiding with a gun in a nearby
apartment and apprehended him. On the following day, police arrested Allen. Allen
did not have a gun at the time of his arrest. In his interview with police, Allen
admitted being present during the shootout, but that he ran when Ray Tate started
shooting and did not return fire.
Police also interviewed a bystander who witnessed the shootout. In the
interview, which was played for the jury, the bystander stated he saw three men,
including Allen and “Young Money,” start shooting at Ray Tate. When the bystander
was called to testify, he denied seeing anything to do with the shootout. A female
eyewitness testified that she heard gunshots and saw Allen, Ray Tate, and “Young
Money” running, but she did not see a gun.
2
One of Allen’s associates,1 “Slime,” testified that on the day of the incident, he
met Allen and some others near the G&T Snack Bar, that they walked to the G&T and
approached Ray Tate, that Tate started shooting, and that another associate called
“Young Money”2 shot back at Tate before everyone started running. Slime testified
that he saw Allen with a gun and that Allen ran into an alley before Slime heard more
shots fired. According to Slime, Allen was a member of the Sex-Money-Murder
gang.3
On the night prior to the shootout, Ray Tate was on Facebook live, repeatedly
asking “where murder gang at, stop hiding” and calling Allen a “bitch.” Tate also
called out “Slime” and “Young Money.” An audio recording of this Facebook live
was played for the jury. Records obtained from Allen’s cellular phone showed that
at 9:46 p.m. that same night, Allen received a text message stating, “Ray on live
1
The associate received immunity in exchange for his testimony.
2
The associate clarified that “Young Money” was Quenton Simpson, Allen’s
co-indictee.
3
The State also submitted photographs and posts from Allen’s Facebook,
indicating Allen was affiliated with the “Sex-Money-Murder” gang. An investigator
admitted as an expert in criminal street gangs testified that “Sex-Money-Murder” is
a subset of the “Bloods,” a criminal street gang. The parties subsequently stipulated
that “Sex-Money-Murder” is a criminal street gang.
3
talkin bout murder gang stop hiding.” The records reflected the text message was
“read.” Allen’s phone records also established that Allen and Slime exchanged
multiple phone calls in the approximately twenty minutes leading up to the shootout.
In a joint indictment,4 Allen was charged with four counts of violation of the
Street Gang Terrorism and Prevention Act and one count each of aggravated assault,
possession of a firearm during commission of a felony, possession of marijuana with
intent to distribute, illegal use of communication facility, and possession of a firearm
by a convicted felon. The jury found Allen guilty of three counts of violation of Street
Gang Terrorism and Prevention Act (Counts 1-3) and not guilty of aggravated assault
and possession of a firearm during commission of a felony (Counts 4 and 5). The trial
was bifurcated, and the jury returned a not guilty verdict on possession of a firearm
by a convicted felon and one count of violation of the Street Gang Terrorism and
Prevention Act (based on possession of a firearm by a convicted felon). The counts
charging possession of marijuana with intent to distribute and illegal use of
communication facility were severed and tried separately. Allen filed a motion for
new trial, and the trial court denied the motion, as amended.
4
Allen’s co-indictee, Quenton Simpson, pleaded guilty pursuant to a negotiated
plea deal prior to Allen’s trial.
4
1. Allen argues that the evidence was insufficient to sustain his convictions for
violation of the Street Gang Terrorism and Prevention Act. Specifically, he contends
that the State failed to establish that he committed the predicate acts of “criminal
street gang activity” because he was acquitted of the predicate offenses charged in the
indictment. We disagree.
Allen was charged with three counts of violating the Georgia Street Gang
Terrorism and Prevention Act by participating in criminal street gang activity through
the commission of aggravated assault (Count 1), possession of a firearm during
commission of a felony (Count 2), and discharging a firearm near a public highway
(Count 3), while associated with “Sex-Money-Murder, a subset of the Bloods, a
criminal street gang.”5 The indictment charged Allen with two of the predicate
offenses, namely aggravated assault and possession of a firearm during commission
of a felony.
In order to establish that Allen violated the Street Gang Terrorism and
Prevention Act, the State was required to prove four elements: “(1) the existence of
a criminal street gang, [as] defined in OCGA § 16-15-3 (2) . . . ; (2) [Allen’s]
5
As earlier stated, Allen was charged with a fourth count of violation of the
Street Gang Terrorism and Prevention Act through the commission of possession of
a firearm by a convicted felon. Allen however was acquitted of this charge.
5
association with the gang; (3) that [Allen] committed one of the offenses identified
in OCGA § 16-15-3 (1); and (4) that the crime was intended to further the interests
of the gang.” (Citation and punctuation omitted.) Boyd v. State, 306 Ga. 204, 209 (1)
(b) (830 SE2d 160) (2019). Accord Broxton v. State, 306 Ga. 127, 133 (2) (829 SE2d
333) (2019). Allen only disputes the sufficiency of the evidence with regard to the
third element because he was acquitted of the predicate offenses, and we conclude
that sufficient evidence supports the remaining elements.
“An acquittal on one charge does not affect the sufficiency of the evidence as
to another charge, even if the conviction is a compound offense, and the acquittal was
for a predicate offense.” Houseworth v. State, 348 Ga. App. 119, 124 (1) (c) (820
SE2d 231) (2018). Accordingly, even though Allen was acquitted of aggravated
assault and possession of a firearm during commission of a felony, any evidence
offered during the trial may be used to evaluate the sufficiency of the evidence for his
convictions for violation of the Street Gang Terrorism and Prevention Act. See Allen
v. State, 351 Ga. App. 680, 684 (832 SE2d 659) (2019). On appeal, “[w]e neither
weigh the evidence nor judge the credibility of witnesses, but determine only
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
6
reasonable doubt.” (Citation and punctuation omitted.) Bynes v. State, 336 Ga. App.
223 (784 SE2d 71) (2016). “[T]he 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.” Morris v. State, 340 Ga. App. 295, 297 (797 SE2d 207)
(2017).
Here, the State presented sufficient evidence from which a jury could conclude
that Allen committed the predicate offenses of aggravated assault, possession of a
firearm during commission of a felony, and discharging a firearm near a public
highway. Eyewitness testimony established that a shootout involving multiple men
took place outside the G&T Snack Bar, that at least one of the men was armed with
a gun, and that Allen was involved. One of the men involved in the shootout testified
that Allen had a gun and that he heard gunshots after Allen ran into an alley. Further,
one bystander stated that he saw Allen shooting at Ray Tate. Although the bystander
recanted his statement at trial, “it is the jury’s role to resolve conflicts in the evidence
and determine the credibility of witnesses, and the presence of such conflicts does not
render the evidence insufficient.” (Citation and punctuation omitted.) Benton v. State,
356 Ga. App. 441, 444 (1) (c) (847 SE2d 625) (2020) (“[t]his law applies even when
a witness recants her previous statement”). See also Walker v. State, 348 Ga. App.
7273, 275 (1), n.1 (821 SE2d 567) (2018). Finally, the State presented evidence of
Allen’s motive in the form of Ray Tate’s Facebook live, in which he called out the
“Sex-Money-Murder” gang as well as Allen individually.
Moreover, the trial court charged the jury on the law regarding party to a crime.
Under this theory, “[o]ne is culpable as a party to a crime, even if he did not directly
commit it, if he intentionally aids or abets in the commission of the crime or
intentionally advises, encourages, hires, counsels, or procures another to commit the
crime.” (Citations and punctuation omitted.) Stewart v. State, 243 Ga. App. 860, 861
(1) (534 SE2d 544) (2000). “Presence, companionship, and conduct before and after
the offense are circumstances from which one’s participation in the criminal intent
may be inferred.” (Citation and punctuation omitted.) Id. Although the jury acquitted
Allen of the charged predicate offenses, we conclude that evidence was sufficient to
prove that Allen committed the predicate offenses as a party to the crimes. Cf.
Daniely v. State, 309 Ga. App. 123, 124-125 (1) (709 SE2d 274) (2011) (finding
evidence sufficient to affirm conviction of possession of a knife during the
commission of the felony of aggravated assault, despite the defendant’s acquittal for
predicate offense). See also Dixon v. State, 309 Ga. 28, 35-36 (2) (b) (843 SE2d 806)
8
(2020) (rejecting contention that the principle of “party to the crime” is not available
for a charge of participating in criminal gang activity under OCGA § 16-15-4 (a)).
To the extent Allen raises an inconsistent verdict argument, such an argument
lacks merit. “As a general rule, inconsistent verdicts occur when a jury in a criminal
case renders seemingly incompatible verdicts of guilty on one charge and not guilty
on another. In Georgia, . . . we have abolished the rule that inconsistent verdicts
require reversal.” (Emphasis in original.) McElrath v. State, 308 Ga. 104, 108 (2) (a)
(839 SE2d 573) (2020). See also State v. Robinson, 275 Ga. App. 117 (619 SE2d 806)
(2005) (“[t]he Supreme Court of Georgia abolished the inconsistent verdict rule . . .
and the relevant question on appeal is whether the evidence viewed in the light most
favorable to the conviction is sufficient to support the verdict”) (citation omitted).
[I]nconsistent verdicts — even verdicts that acquit on a predicate
offense while convicting on the compound offense — should not
necessarily be interpreted as a windfall to the Government at the
defendant’s expense. It is equally possible that the jury, convinced of
guilt, properly reached its conclusion on the compound offense, and then
through mistake, compromise, or lenity, arrived at an inconsistent
conclusion on the lesser offense.
McElrath, 308 Ga. at 108-109 (2) (a), citing United States v. Powell, 469 U. S. 57,
64-65 (105 SCt 471, 83 LE2d 461) (1984). “Because of this, the issue is not whether
9
an acquittal on one charge would logically necessitate acquittal on another charge on
which the jury convicted the defendant; rather the sole question is whether the
evidence viewed in favor of the conviction was sufficient to support the guilty
verdict.” (Citation, punctuation, and emphasis omitted.) Presley v. State, 358 Ga.
App. 277, 281 (1) (855 SE2d 30) (2021). In sum, we conclude that the evidence
presented against Allen was sufficient to authorize a rational jury to find beyond a
reasonable doubt that he was guilty of the offenses that served as a predicate for his
convictions for violation of the Street Gang Terrorism and Prevention Act.
2. Allen also asserts that his convictions violate his constitutional right to free
association. Allen posits that because he was acquitted of the charged predicate
offenses, he was, in effect, convicted based on “mere association.”6
Our Supreme Court previously has held that OCGA § 16-15-4 (a) does not
infringe upon the First Amendment right to freedom of association:
The act of associating with compatriots in crime is not a protected
associational right. To support a conviction, the accused must be shown
to have conducted or participated in criminal street gang activity through
6
One of Allen’s convictions for violation of the Street Gang Terrorism and
Prevention Act was premised on discharging a firearm near a public highway, an
offense for which he was not separately charged in the indictment. We therefore find
Allen’s argument in this regard inapplicable to this conviction.
10
the commission of an actual criminal act. Mere association is
insufficient. OCGA § 16-15-4 (a) comports with due-process
requirements because it punishes conduct, not association. It does not
unconstitutionally criminalize membership in an organization because
the statute does not impermissibly establish guilt by association alone.
Moreover, the right to association does not provide protection to those
organizations that commit a felony. Criminal gang activity is not
protected activity even when committed by a group exercising their
constitutional right to free association.
(Citations and punctuation omitted.) Rodriguez v. State, 284 Ga. 803, 810 (4) (671
SE2d 497) (2009). As concluded in Division 1, there was sufficient evidence from
which a jury could conclude that Allen committed the predicate offenses. The fact
that the jury decided to return a not guilty verdict on the aggravated assault and
possession of a firearm during commission of a felony charges does not render
Allen’s convictions unconstitutional. See id.
3. Allen contends that the trial court erred in admitting over his objection an
audio recording of the Facebook video by Ray Tate because it violates the
Confrontation Clause and constitutes inadmissible hearsay. We disagree.
(a) Allen contends that the trial court’s admission of the recording violated his
Confrontation Clause rights because “the defense was not able to confront the
11
statements made [in the recording].” Because the statements in the recording do not
implicate the Confrontation Clause, we disagree.
As our Supreme Court has explained, “[t]he Confrontation Clause imposes an
absolute bar to admitting out-of-court statements in evidence when they are
testimonial in nature, and when the defendant does not have an opportunity to
cross-examine the declarant.” (Citation and punctuation omitted.) McCord v. State,
305 Ga. 318, 321 (2) (a) (825 SE2d 122) (2019). Thus, “the Confrontation Clause
applies only to out-of-court statements that are testimonial in nature.” (Citation,
punctuation, and emphasis omitted.) McClendon v. State, 299 Ga. 611, 617 (4) (b)
(791 SE2d 69) (2016). “A statement is testimonial if its primary purpose was to
establish evidence that could be used in a future prosecution.” (Citation and
punctuation omitted.) Franklin v. State, 298 Ga. 636, 640 (2) (784 SE2d 359) (2016).
See also Crawford v. Washington, 541 U. S. 36, 51-52 (III) (A) (124 SCt 1354, 158
LE2d 177) (2004) (describing the “core class of ‘testimonial’ statements” as “ex
parte in-court testimony or its functional equivalent — that is, material . . . that
declarants would reasonably expect to be used prosecutorially”). After “a
determination is made that a statement is nontestimonial in nature, normal rules
regarding the admission of hearsay apply.” (Citation and punctuation omitted.)
12
McCord, 305 Ga. at 322 (2) (a). Here, the statements made in the Facebook live
recording clearly were not intended for use in a future prosecution and thus were not
testimonial. See, e.g., Favors v. State, 296 Ga. 842, 844-845 (2) (770 SE2d 855)
(2015) (co-conspirator’s statements to girlfriend that “‘the lick went bad’” and the
victim was shot were not testimonial in nature because they were not “made under
circumstances indicating the declarant’s intent to provide evidence for a future
prosecution”). Accordingly, we turn to whether the statements in the recording were
impermissible hearsay.
(b) For a statement to constitute hearsay, it must be “offered in evidence to
prove the truth of the matter asserted.” OCGA § 24-8-801(c). Here, the statements
contained in the recording were not offered to prove the truth of the matter asserted.
Rather, the recording was offered to show its effect on Allen and his motive for
participating in the shootout. See Gates v. State, 298 Ga. 324, 326 (2) (781 SE2d 772)
(2016) (text messages victim sent to defendant’s girlfriend not offered for their truth
but for effect on defendant, establishing his motive for the murder). In other words,
the statements are not hearsay because the State offered them for a
purpose that did not require the jury to assume that the substance of the
statements was true. . . . Rather, [the] statements were significant
13
because they had been made and because they were likely to have had
an effect on the hearer, [Allen].
Brown v. State, 332 Ga. App. 635, 637 (1) (774 SE2d 708) (2015). Accordingly,
Allen’s claim that this evidence was inadmissible hearsay is without merit.7
4. Allen also contends that the trial court erred in admitting “highly prejudicial
evidence which had little to no probative value.” While his enumeration fails to
identify the “highly prejudicial evidence,” Allen seems to take issue with the
admission of photographs posted to his Facebook profile showing Allen’s gang
affiliation as well as testimony from the investigator admitted as an expert in criminal
street gangs and a former prison guard. “The admission of evidence is committed to
the sound discretion of the trial court, and the trial court’s decision whether to admit
or exclude evidence will not be disturbed on appeal absent an abuse of discretion.”
Anglin v. State, 302 Ga. 333, 335 (2) (806 SE2d 573) (2017).
The trial court admitted the photographs over Allen’s objection that their
probative value was substantially outweighed by the danger of unfair prejudice. See
7
Allen argues there is insufficient evidence that he heard the recording for it
to have been admitted as “effect on listener.” We disagree and find that the State
presented sufficient evidence from which the jury could conclude that Allen saw, or
at least heard about, the statements made in Tate’s Facebook live.
14
OCGA § 24-4-403 (“Rule 403”). Allen objected to the expert’s testimony stating it
was “bad character evidence” and that the defense already had conceded he was in
a criminal street gang. The trial court overruled the objection. During the testimony
of the former prison guard, Allen voiced an objection under Rule 403, arguing that
“we’ve already admitted gang member association. . . . The prejudicial effect so far
outweighs the probative value . . . [s]ince we’ve admitted the fact[.]” The court
allowed the guard’s testimony over the objection.
On appeal, Allen again argues that evidence of his gang membership, including
the photographs and the testimony from both witnesses, was “unnecessarily
cumulative,” and thus “highly prejudicial with little to no probative value,” because
his trial counsel admitted during opening argument that Allen was a member of “Sex-
Money-Murder,” a criminal street gang. But counsel’s statements during his opening
were not evidence, and the State still had to prove that Allen was a member of a
“criminal street gang” known as “Sex-Money-Murder,” as well as a connection
between that gang and the crimes at issue. See Jordan v. State, 307 Ga. 450, 453 (2)
(836 SE2d 86) (2019). See also OCGA § 16-15-3. We conclude that the trial court did
not abuse its discretion under Rule 403 when it admitted the evidence of gang
15
activity.8 See Jordan, 307 Ga. at 453 (2) (trial court did not abuse its discretion in
admitting evidence of defendant’s gang activity where defendant was charged, inter
alia, with criminal gang activity, despite defense lawyer’s statements during his
opening that defendant was a member of “‘a gang’” and that he was “‘in a bind . . .
with this gang’”).
8
Allen also asserts without citation to the record that “[t]he State introduced
numerous photos of [him] in prison.” Allen has not identified which photograph or
photographs he takes issue with out of the nearly thirty admitted into evidence. The
record shows that the defense objected to all of the photographs “on the basis that
since we’ve admitted he’s a gang member . . . these pictures . . . relate to proving he’s
a gang member, but they’re so inflammatory and prejudicial that they’re really bad
character evidence. . . .” The defense then singled out one photograph, stating “I’d
point out that’s DOC now.” The State responded that the photograph was relevant
because it showed Allen flashing a gang sign. Which photograph the parties were
referring to is unclear. In the absence of a specific reference to the record or
transcript, this Court will not search for and may not consider that enumeration. Court
of Appeals Rule 25 (c) (2) (i). “It is not this Court’s job to cull the record on behalf
of the appellant to find alleged errors.” (Citation and punctuation omitted.) Entwisle
v. State, 340 Ga. App. 122, 131 (2) (796 SE2d 743) (2017). Accordingly, Allen has
failed to carry his burden of showing an abuse of discretion by the trial court in
admitting the photographs. See Westmoreland v. State, 287 Ga. 688, 696-697 (10)
(699 SE2d 13) (2010) (appellant failed to show reversible error affirmatively by the
record, where appellant contended that trial court erred in admitting photographs, but
appellant failed to identify which of the hundreds of photographs admitted were
allegedly objectionable ones so as to allow the appellate court to isolate them for
review of appellant’s claim and whether he lodged a contemporaneous objection and
if so the nature of the objection).
16
5. Allen lastly contends that the trial court erred in denying his motions for
mistrial following “two instances of the State negligently showing documentation [of
Allen’s status as a convicted felon] on counsel tables” during voir dire. He also
contends that the court erred in denying his motion for mistrial following the
testimony of the former prison guard implying that Allen had been in prison. Lastly,
Allen argues that the trial court should have granted a mistrial based on the
photographs showing him in prison.
(a) Motions during voir dire. On the first day of voir dire, the State left a copy
of its notice that it sought recidivist punishment face-up on the defense table. The
record shows that a discussion was held in the trial judge’s chambers, during which
defense counsel argued as follows:
Any [prospective] juror walking by that table knows that [Allen is] a
felon now, if they read it at all. . . . There’s no way we can know who or
. . . how many jurors saw it. . . . I don’t think the State did it intentionally
because it’s bad for them, but I think the entire jury panel’s inextricably
tainted, and it’s going to call into question fundamental fairness of any
jury we pick from this panel. I don’t think there’s any way to proceed at
this point because there’s no way in good faith that we can know who
exactly has seen this without actually saying he’s a felon. I’m moving
for a continuance for the term based off that.
17
Subsequently, the trial court denied the motion and instructed that it would proceed
with the case.
On the following day — day two of voir dire — Allen’s counsel brought to the
trial court’s attention that the State had a notebook on its table during the first day of
voir dire, and the cover of the notebook listed the charges against Allen, including
possession of a firearm by a convicted felon. Defense counsel then “clarif[ied]” his
prior motion as follows: “I don’t think I ever actually said the word ‘mistrial’
yesterday, but I would yet again move for mistrial and a continuance for the term and
renew that motion at this point.” The trial court explained that it had treated the
previous motion as one for mistrial and further noted that “[h]aving gone back in the
courtroom yesterday after the hearing and looked at the distances, that further
reaffirmed in my mind that the motion should be denied.” The court then went on to
deny the renewed motion based on the State’s notebook because it “doesn’t involve
anything that hasn’t already been covered with jurors in voir dire.” Voir dire was not
transcribed.
As a preliminary matter, “[a] mistrial is not a proper remedy . . . before the jury
has been empaneled and sworn.” Mitchell v. State, 284 Ga. App. 209 (1) (644 SE2d
147) (2007). This is because “the time for making a motion for mistrial is not ripe
18
until the case has begun, and the trial does not begin until the jury has been impaneled
and sworn.” (Citation and punctuation omitted.) Purnell v. State, 355 Ga. App. 899,
901 (843 SE2d 637) (2020). Instead, “the proper procedural tool [is] either a
challenge to the poll or a motion for a postponement to impanel other jurors[.]”
(Citation and punctuation omitted.) Sharpe v. State, 272 Ga. 684, 687 (5) (531 SE2d
84) (2000). See also Purnell, 355 Ga. App. at 901.
Here, Allen apparently sought to postpone the trial and restart the voir dire
process. Despite the nomenclature of the motions, the trial court appropriately
considered their merits. See Purnell, 355 Ga. App. at 901. See also Lord v. State, 304
Ga. 532, 535 (2) (820 SE2d 16) (2018) (trial court properly addressed merits of
defendant’s motion for mistrial which, in substance, was a request for a new jury
panel). And under the circumstances, we find no abuse of discretion in its declining
to postpone Allen’s trial in order to impanel other jurors. Based on the record before
us, there is no evidence that any prospective juror saw or read either document, or that
even if a prospective juror did see or read the document, that the juror ultimately
ended up on the jury. Moreover, as to the second document, the trial court specifically
found that the charge of possession of a firearm by a convicted felon “already [had]
been covered with jurors in voir dire.” While voir dire was not transcribed, and thus
19
we are unable to determine what exactly was “covered,” we must keep in mind that
“[c]ontrol of voir dire is vested in the sound discretion of the trial court and appellate
courts will not interfere with that discretion unless it has been abused.” Mitchell, 284
Ga. App. at 209 (1).
(b) Motion during trial. Allen also moved for a mistrial during the testimony
of an officer who testified that he previously worked at a state prison. The officer
testified that during a conversation with Allen in April 2016, Allen confirmed that he
was a member of Sex-Money-Murder and had been for a few years at that point. The
State then asked the officer whether there were any physical characteristics to look
for in determining whether someone is in a gang. The officer answered: “Look at
tattoos, their — who they associate with, any kind of writing. A lot of times in
prisons, they’ll write what their affiliation is on their clothing.” The officer then
confirmed that Allen had writing on his clothing that was consistent with him being
a member of Sex-Money-Murder. Counsel did not request a curative instruction, and
the trial court denied the motion for mistrial.
“Whether to declare a mistrial is in the discretion of the trial court and will not
be disturbed on appeal unless it is apparent that a mistrial is essential to the
preservation of the right to a fair trial.” (Citation and punctuation omitted.) Rafi v.
20
State, 289 Ga. 716, 720 (4) (715 SE2d 113) (2011). “A passing reference to a
defendant’s incarceration does not place his character in evidence.” (Citation and
punctuation omitted.) Swims v. State, 307 Ga. 651, 655 (2) (838 SE2d 751) (2020).
Moreover, while it could be inferred from the officer’s testimony that Allen
previously was in prison, this was not stated directly. Under these circumstances, we
conclude that the trial court acted within its discretion in denying the mistrial motion.9
See id. at 654-655 (2) (trial court did not abuse its discretion in denying defendant’s
motion for mistrial based on witness testimony that defendant had been incarcerated
in another state for an unstated crime).
(c) Photographs. Allen also argues that the trial court should have granted a
mistrial based on the photographs showing him in prison. However, Allen only
objected to their admission on Rule 403 grounds. Because he did not move for a
mistrial at the time of their admission, this claim is not preserved for review. See
Goins v. State, 310 Ga. 199, 206 (5) (850 SE2d 68) (2020).
Judgment affirmed. Doyle, P. J., and Reese, J., concur.
9
“Failure to give an unrequested curative instruction does not create reversible
error.” (Citation and punctuation omitted.) Swims v. State, 307 Ga. 651, 655 (2) (838
SE2d 751) (2020).
21