HOUSEWORTH v. the STATE. , 348 Ga. App. 119 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
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 22, 2018
In the Court of Appeals of Georgia
A18A1105. HOUSEWORTH v. THE STATE. DO-037 C
DOYLE, Presiding Judge.
Santana R. Houseworth was charged with driving under the influence to the
extent it was less safe to drive (“DUI less-safe”),1 hit-and-run,2 and two counts of first
degree vehicular homicide (predicated on felony hit-and-run and DUI less-safe).3 A
jury acquitted her of vehicular homicide based on DUI less-safe (Count 1), and she
was convicted on the remaining three counts and sentenced to serve 15 years in
custody.4 Houseworth appeals, arguing that the evidence was insufficient to sustain
1
OCGA § 40-6-391 (a) (1).
2
OCGA § 40-6-270 (b).
3
OCGA §§ 40-6-393 (a) & (b).
4
Houseworth’s conviction for hit-and-run (Count 3) merged with vehicular
homicide based on hit-and-run (Count 2).
her conviction for vehicular homicide based on hit-and-run and that the trial court
erred by admitting evidence of her subsequent DUI arrest. For the reasons that follow,
we find the evidence sufficient, but reverse her convictions because the trial court
erred by admitting evidence of the subsequent act.
On appeal from a criminal conviction, we view the evidence in the
light most favorable to the verdict, and the defendant is no longer
entitled to the presumption of innocence. We determine only whether
the evidence authorized the jury to find the defendant guilty beyond a
reasonable doubt, and in doing so we neither weigh that evidence nor
judge the credibility of the witnesses.5
So viewed, the record shows that on the night of April 3, 2015, Houseworth,
Bobby Gleaton, Jr. (her boyfriend), and several friends went to a nightclub in DeKalb
County, where the group ate food and drank alcohol. According to one witness,
Houseworth consumed “three or four shots and a couple [of] cups of blue MF[, an
alcoholic mixed drink].” The group was asked to leave the bar after one of
Houseworth’s friends got into a disagreement with another patron. Gleaton,
5
(Citations and punctuation omitted.) Dickson v. State, 339 Ga. App. 500, 501
(1) (793 SE2d 663) (2016), quoting Byrd v. State, 325 Ga. App. 24 (752 SE2d 84)
(2013), Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013).
2
Houseworth, and Houseworth’s friend, Cierra St. Hubert-Upshaw, left in
Houseworth’s car – a white 2003 Honda Accord – with Gleaton driving, intending to
meet the others at Gleaton’s house.
While en route, Gleaton and Houseworth argued. Gleaton stopped the car in an
office park located on a four-lane divided highway and got out, telling the women
that he would “get hi[m]self home.” The women exited the car and tried to convince
Gleaton to return to the car, but he refused. Gleaton called his friend, Deion Willams,
and asked him to pick him up at a condominium complex, which was located on the
same side of the highway as the office park where the group was parked and
connected to it with a sidewalk.
When Houseworth and St. Hubert-Upshaw returned to the car, it had started to
rain. Houseworth, who was driving, turned eastbound on the highway shortly before
making a U-turn to go westbound towards an interstate highway. St. Hubert-Upshaw
estimated that Houseworth was going approximately 45 miles per hour, which was
the speed limit. As the car proceeded towards the interstate, the women saw
something in the road; according to St. Hubert-Upshaw, the women could not initially
determine what it was, asking each other if it was “like a deer or something.” St.
Hubert-Upshaw testified that as they got closer to the object, they realized it was
3
Gleaton, and Houseworth swerved to avoid him, jerking the steering wheel to the left
and stopping the car in the median. St. Hubert-Upshaw, who was in the front
passenger seat, hit her head on the dashboard, and the windshield cracked.
As soon as she regained control of the car, Houseworth drove a short distance
to the parking lot of a nearby restaurant. The women exited the car, and St. Hubert-
Upshaw noticed that the bumper on Houseworth’s car was hanging off, the
windshield was cracked, and there was a dent in the roof. Houseworth called
Gleaton’s parents and Williams, and she angrily told them that Bobby had “messed
up her car.” Gleaton’s parents and Williams met her in the restaurant parking lot,
where Houseworth told them that Gleaton had thrown something at her car or
punched it. Williams and Gleaton’s parents testified that Houseworth appeared to be
intoxicated, and they all observed the significant damage to her car.
Meanwhile, between 1:45 and 2:30 a.m. that same night, Jessica Johnson
observed an object lying in the road on the highway, partially in the median. Johnson
applied her brakes and tried to swerve around the object, but she was unable to avoid
running over it. Johnson stopped her vehicle and immediately called 911 when she
realized she had run over a person, later identified as Gleaton. While she waited for
police to arrive, Johnson observed several other vehicles run over the body.
4
When an officer arrived on the scene, Gleaton was “in the roadway injured very
badly,” and he stopped breathing shortly thereafter. Emergency personnel arrived and
attempted to render aid, but they were unable to revive Gleaton. A detective arrived
shortly thereafter and observed track marks on the roadway, a black vehicle part later
identified as a part from the inner wheel well of a vehicle, and a broken piece of a
white bumper cover with a label indicating that it fit a 2003 to a 2006 Honda Accord.6
Although he was unable to conduct an accident reconstruction based on wet weather
conditions and the fact that Gleaton had been struck by multiple vehicles, the
detective later determined that the damage to Houseworth’s vehicle was consistent
with “a vehicle striking a pedestrian.”
Meanwhile, Houseworth and St. Hubert-Upshaw left and went to Clayton State
College with friends to retrieve Houseworth’s phone. Houseworth returned to the
restaurant, and at 6:36 a.m. the following morning, she called 911 from the parking
lot and reported a single-vehicle accident with property damage. An officer, unaware
of Gleaton’s death, responded to the restaurant, and he observed that Houseworth’s
white 2003 Honda Accord was “very heavily damaged,” noting that the windshield
was caved in. Houseworth appeared to be “kind out of it,” her hair was in disarray,
6
There was no white Honda at the scene when police responded.
5
and she wasn’t wearing much clothing. Houseworth told the officer that “she was
driving down the highway earlier in the middle of the night[,] and she struck
something. She wasn’t sure if it was a deer or whatever, an object in the road.”
At 10:06 a.m., Houseworth sent Gleaton’s mother a text that said, “[T]here are
no words I can say for forgiveness, but on my own life I did not see this coming[,]
and I promise you I had no intentions. . . . I know sorry can’t fix anything but I’m
sorry. . . . I’m on begging knees, I swear it wasn’t intentional.”
Houseworth was charged with two counts of first degree vehicular homicide,
hit-and-run, and DUI less-safe.
At trial, the medical examiner testified that Gleaton suffered a number of
injuries, including lacerations, contusions, compound fractures in both legs, a linear
skull fracture, and blunt force injuries to his face. He further testified that
[I]t would be my opinion that the head injuries [caused by the first
vehicle striking Gleaton], in and of themselves are lethal, the skull
fracture and the brain injuries to the brain itself. And it would be my
opinion that that particular injury was, in my opinion, caused by an
impact either against the first vehicle that struck him . . . and could have
been caused either by an impact against part of the vehicle or, you know,
the tertiary impact when he was thrown off that vehicle and onto the
road and impacting his head then.
6
According to the medical examiner, some of Gleaton’s injuries were sustained while
he was walking or standing upright, and those injuries incapacitated him, rendering
him immobile in the roadway, where he was struck by other vehicles that also left
injury patterns. On cross-examination, however, the medical examiner conceded that
it was possible that Gleaton was still standing after the first car struck him. The
medical examiner also testified that blood tests performed on Gleaton indicated the
presence of “a fairly high level” of marijuana, a “very small amount” of Xanax, a
“fairly high amount . . . high therapeutic or slightly above” level of
pseudoephedrine/ephedrine, and a low-to-therapeutic amount of Benadryl; another
doctor testified that Gleaton’s blood alcohol level was 0.109.
At the conclusion of the trial, the jury acquitted Houseworth of vehicular
homicide based on the predicate offense of DUI and found her guilty of the remaining
three counts. This appeal followed.
1. Houseworth argues that the evidence is insufficient to sustain her conviction
for vehicular homicide predicated on hit-and-run because Gleaton’s conduct was the
superseding, proximate cause of the accident that caused his death. We disagree.
(a) OCGA § 40-6-393 (b) provides: [a]ny person who, without malice
aforethought, causes the death of another person through the violation of . . .
7
subsection (b) of Code Section 40-6-270 [felony hit-and-run] commits the offense of
homicide by vehicle in the first degree.”
Count 2 charged that Houseworth violated OCGA § 40-6-393 (b) by:
while driving a motor vehicle . . . without malice aforethought, cause[d]
an accident which caused the death of Bobby Lee Gleaton, Jr., a human
being, through a violation of OCGA § 40-6-270 (b), [h]it and [r]un, in
that she struck [Gleaton] with the aforementioned motor vehicle, and did
knowingly fail to immediately stop her vehicle at the scene of the
accident and return to the scene of the accident and render reasonable
assistance to said victim. . . .
The trial court charged the jury that the State bore the burden of proving,
beyond a reasonable doubt, that Houseworth was “guilty of the offenses charged” and
that “[n]o person shall be convicted of any crime unless or until each element of the
crime as charged is proven beyond a reasonable doubt. The burden of proof rests
upon the State to prove every material allegation of the indictment and every essential
element of the crime charged beyond a reasonable doubt.” The court also properly
charged the jury as to the elements of vehicular homicide based on the predicate act
of hit-and-run, and it gave the jury the following pattern jury charge on leaving the
scene/hit-and-run, which charge addressed causation:
8
It is unlawful for any person to knowingly fail to stop and comply with
the requirements previously stated where the accident is the proximate
cause of death or serious bodily injury. Proximate cause is that which in
the natural and continuous sequence unbroken by other causes produces
an event and without which the event would not have occurred.
Proximate cause is that which is the nearest in the order of responsible
causes as distinguished from remote and that which stands last in
causation, not necessarily in time or place but in causal relation.7
“[I]n cases of conflicting evidence over causation, the question is one for the jury to
resolve.”8
Here, the testimony about Houseworth’s alcohol consumption before the
accident and her appearance and actions soon after the accident, coupled with the
evidence of the damage to her, debris left at the scene, and St. Hubert-Upshaw’s
testimony about Houseworth’s unsuccessful attempt to avoid striking Gleaton by
swerving, entitled the jury to conclude that Houseworth caused the accident, while
driving under the influence of alcohol to the extent that it was less safe, striking
Gleaton with her car, and leaving the scene without rendering aid, which resulted in
7
See Suggested Pattern Jury Instructions Vol. II: Criminal Cases (4th ed.), §
2.86.22.
8
Michael v. State, 335 Ga. App. 579, 584 (1) (782 SE2d 479) (2016).
9
Gleaton’s serious injury and death. The jury also could reasonably infer from her text
to Gleaton’s mother the morning after the accident that Houseworth was conscious
of her own guilt.9
(b) Houseworth also contends that the circumstantial evidence of causation
failed to exclude all reasonable hypotheses of her guilt.10 This
argument is without merit because the reasonable hypothesis rule applies
only in the narrow context where all of the evidence against the accused
was circumstantial. Here, there was direct evidence in the form of
eyewitness testimony[, including St. Hubert-Upshaw, Gleaton’s parents,
and Williams,] and [Houseworth’s statements in her text to Gleaton’s
mother]. The reasonable hypothesis rule therefore has no application in
this case.11
(c) Finally, contrary to Houseworth’s argument on appeal, the fact that the jury
acquitted her of vehicular homicide predicated on DUI less-safe does not mean that
the State had to use conduct independent of DUI to prove that she caused the
accident. An acquittal on one charge does not affect the sufficiency of the evidence
9
Id. at 585 (1).
10
See OCGA § 24-14-6.
11
(Citations omitted.) Michael, 335 Ga. App. at 585 (1).
10
as to another charge, even if the conviction is a compound offense, and the acquittal
was for a predicate offense.12
In light of the abolition of the inconsistent verdict rule in criminal cases,
the issue is not whether 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.13
Given the evidence in this case, the jury was authorized to conclude that
Houseworth was guilty of first-degree vehicular homicide predicated on hit-and-run.
2. Houseworth also contends that the trial court erred by admitting evidence of
her subsequent, unresolved DUI less-safe arrest, arguing that it was irrelevant, lacked
probative value, and was unfairly prejudicial.
Prior to trial, the State filed a notice of intent to present evidence of
Houseworth’s May 21, 2016 arrest for DUI less-safe, seeking to introduce it to show
“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
12
See Tanksley v. State, 281 Ga. App. 61, 62 (1) (635 SE2d 353) (2006).
13
(Punctuation omitted.) Id., quoting Kimble v. State, 236 Ga. App. 391, 395
(1) (512 SE2d 306) (1999). See also Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d
216) (1986) (abolishing the inconsistent verdict rule in criminal cases), citing United
States v. Powell, 469 U. S. 57, 67 (105 SC 471, 83 LE2d 461) (1984).
11
absence of mistake or accident. . . .” The trial court heard evidence and oral argument
from the parties on the fourth day of trial.14 The State advised that it sought to
introduce the evidence to show Houseworth’s “intent to drive under the influence of
alcohol” and to show that her actions were not an accident; Houseworth objected,
arguing that the subsequent acts were neither relevant nor probative, and they were
unfairly prejudicial.
After considering the proffer and the arguments of counsel, the trial court
admitted the evidence “for the purpose of demonstrating intent.” The court did not
elaborate on its ruling, failing to indicate whether it had weighed the prejudicial
impact against the probative value of the evidence. The court did instruct the jury
immediately before its admission that the evidence was to be considered “for the sole
issue or limited purpose of showing intent.” And during its final instructions to the
jury, the trial court charged:
Before you may consider — before you may consider of the subsequent
DUI alleged committed — allegedly committed by the defendant for the
limited purpose of showing intent, you must first determine whether it
14
According to the State’s appellate brief, in an order dated August 23, 2017,
the court granted the State’s motion to introduce the evidence of Houseworth’s
subsequent DUI. As the State points out, however, that order was not included in the
record on appeal.
12
is more likely than not that the accused committed the subsequent DUI.
If so, you must then determine whether the subsequent DUI shares any
light on the issue of intent for the crimes charged in the indictment in
this trial. Remember to keep in mind the limited use and prohibited use
of this evidence.
Following the trial court’s ruling admitting the evidence, the State presented
testimony from a police officer who responded to a single-car accident in Atlanta at
3:30 a.m. on May 21, 2016. The officer observed Houseworth’s Honda Accord, which
had struck an unoccupied, abandoned house, resulting in damage to the house and
extensive damage to the car. Houseworth — the driver — and her passenger initially
walked away from the scene, but paramedics stopped Houseworth and transported her
to the hospital, where she was interviewed by another officer. Houseworth, who was
wearing a neck brace, admitted that she had been drinking at the U-Bar – the same bar
she and Gleaton visited the night of his death – before driving and losing control of
her car. After noticing an odor of alcohol and observing Houseworth’s glossy, glassy
eyes, the officer arrested her. Houseworth refused to submit to a State-administered
chemical test, and she was charged with DUI less-safe.
OCGA § 24-4-404 (b) (“Rule 404 (b)”) provides in relevant part:
13
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. . . .
To admit evidence of other acts,
[t]he trial court must find that: (1) the other acts evidence is relevant to
an issue other than the defendant’s character, (2) the probative value is
not substantially outweighed by undue prejudice under OCGA § 24-4-
403 (“Rule 403”), and (3) there is sufficient proof that a jury could find
by a preponderance of the evidence that the defendant committed the
acts.15
Relevant evidence admissible under Rule 404 (b) may be excluded under Rule
403 “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.”16 “This
balancing test is committed principally to the discretion of the trial courts[,] and
15
(Punctuation omitted.) State v. Atkins, ___ Ga. ___, ____ (2) (Case No.
S18A0770, decided Sept. 10, 2018), quoting Jones v. State, 301 Ga. 544, 545 (802
SE2d 234) (2017) (“Jones IV”).
16
OCGA § 24-4-403.
14
exclusion of evidence under the test is an extraordinary remedy which should be used
only sparingly.”17
Here, the State sought to admit the evidence to show Houseworth’s “intent to
drive under the influence of alcohol” and to show that her actions were not an
accident, and the trial court admitted the evidence “for the purpose of demonstrating
intent.”
Rule 404 (b) explicitly recognizes the relevance of other acts
evidence offered for a permissible purpose and, at the same time,
prohibits the admission of such evidence when it is offered solely for the
impermissible purpose of showing a defendant’s bad character or
propensity to commit a crime. Rule 404 (b), therefore, is, on its face, an
evidentiary rule of inclusion which contains a non-exhaustive list of
purposes other than bad character for which other acts evidence is
deemed relevant and may be properly offered into evidence.18
17
(Punctuation omitted.) Jones IV, 301 Ga. at 546 (1), quoting Olds v. State,
299 Ga. 65, 70 (2) (786 SE2d 633) (2016).
18
State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d 170) (2015) (“Jones II”).
15
Intent is a proper purpose for introducing evidence of similar acts.19 And the
Supreme Court of Georgia held in Jones II that DUI less-safe is a general intent
crime, and the State therefore
had the burden of proving beyond a reasonable doubt [the defendant’s]
intent . . . to drive . . . under the influence of alcohol . . . to the extent
[s]he was a less safe driver. Intent, therefore, was a material issue in the
State’s prosecution[,] and because the same state of mind was required
for committing the prior act and the charged crimes, i.e., the general
intent to drive while under the influence of alcohol, evidence of [the
defendant’s ] prior [DUI] conviction was relevant under Rule 404 (b) to
show [the defendant’s] intent [with regard to the charged crime].20
Neverthless, even assuming that Houseworth’s subsequent arrest for DUI was
relevant to show intent, the record does not demonstrate that the evidence of her
subsequent DUI arrest was properly admitted.
The Supreme Court of Georgia has explained that:
the probative value of evidence derives in large part from the extent to
which the evidence tends to make the existence of a fact more or less
probable. Generally speaking, the greater the tendency to make the
existence of a fact more or less probable, the greater the probative value.
19
See OCGA § 24-4-404 (b).
20
(Punctuation and citation omitted.) Jones II, 297 Ga. at 160-161 (2).
16
And the extent to which evidence tends to make the existence of a fact
more or less probable depends significantly on the quality of the
evidence and the strength of its logical connection to the fact for which
it is offered. 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. The stronger the
other proof, the less the marginal value of the evidence in question. 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.21
When conducting the Rule 403 balancing test,
[a]n appellate court will examine whether the trial court properly
considered all the circumstances surrounding the extrinsic act evidence,
including the similarities between the charged act and the extrinsic act,
the remoteness in time between the charged act and the extrinsic act, and
the prosecution’s need for the extrinsic act evidence.22
Here, the temporal span of thirteen months “is not too remote for the probative
value of the extrinsic act to be impacted in a significant way.”23 Therefore, a
21
(Citation and emphasis omitted.) Olds, 299 Ga. at 75-76 (2).
22
Jones IV, 301 Ga. at 548 (2), citing United States v. Perez, 443 F3d 772, 780
(II) (11th Cir. 2006); Bradshaw v. State, 296 Ga. 650, 657-658 (3) (769 SE2d 892)
(2015).
23
Jones IV, 301 Ga. at 548 (2).
17
determination of the admissibility of the similar act focuses on the similarities
between the two events and the State’s need for the subsequent DUI arrest to
demonstrate intent.
While both events involved DUI after Houseworth consumed alcohol at the
same bar, they are not identical. In May 2016, Houseworth drove her car from the bar
and struck a building, and there is no evidence that the collision resulted from
anything other than her diminished capacity. In the charged crime, she drove her car
after Gleaton refused to drive anymore, and she struck him when he later entered the
roadway — in a location other than where she left him and had no reason to expect
him to be — in the rain. Accordingly, the “similarities” between the two crimes are
a relatively neutral factor in the balancing test.
More importantly, the probative value of her subsequent DUI arrest is minimal.
[W]hether the charged crime is one of general intent is one of the
factors, an important one, the trial court may consider when assessing
the prosecutorial need for the extrinsic act evidence in question.
Logically, if the State’s threshold to prove intent as an element of a
crime is relatively low, as it likely is when the charged crime is one of
general intent, then the probative value of the extrinsic act evidence
would necessarily be minimal.24
24
Id.18
At trial, Houseworth’s attorney specifically conceded during opening and
closing arguments that Houseworth consumed alcohol before she drove. Such a
concession, notwithstanding her failure to admit that she was under the influence to
the extent that she was less-safe, diminishes the probative value of her subsequent
DUI arrest.25 “This is because probative value depends 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.”26
Given Houseworth’s concession during argument, coupled with the undisputed
evidence that she had consumed alcohol at the bar before the accident and the fact
that DUI less-safe is a general intent crime, “the probative value of the [subsequent]
DUI [arrest] to show intent . . . was very low.”27
25
See, e.g., Brown v. State, 303 Ga. 158, 161-162 (2) (810 SE2d 145) (2018)
(holding that the defendant’s prior commission of assault on another person had
“extremely low” probative value at his trial for murder and related offenses because
he admitted the intent to injure by asserting self-defense).
26
(Punctuation omitted.) Id. at 162 (2), quoting Olds, 299 Ga. at 76 (2).
27
Jones IV, 301 Ga. at 549 (2).
19
Having determined the extremely low probative value of Houseworth’s
subsequent DUI arrest, we must now weigh that against the danger of unfair
prejudice.28 As the Supreme Court of Georgia has explained,
one 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 [she] is not guilty
of the offense charged. Indeed, the major function of Rule 403 is to
exclude matters of scant or cumulative probative force, dragged in by
the heels for the sake of its prejudicial effect.29
And “[a]nytime a prior crime is admitted into evidence, there is a prejudicial effect.
Here, because the probative value of [Houseworth’s subsequent] DUI [arrest] was
minimal given all the attendant circumstances, the danger of interjecting unfair
prejudice was a greater risk.”30 This danger is evidenced by “the manner in which the
28
See Brown, 303 Ga. at 162 (2), citing Olds, 299 Ga. at 70 (2).
29
(Citation and punctuation omitted.) Brown, 303 Ga. at 162 (2), quoting Hood
v. State, 299 Ga. 95, 103 (4) (786 SE2d 648) (2016), United States v. Beechum, 582
F2d 898, 914 (III) (c) (5th Cir. 1978). In Bonner v. City of Prichard, 661 F2d 1206,
1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all Fifth
Circuit decisions prior to September 30, 1981.
30
(Citations and footnote omitted; emphasis in original.) Jones IV, 301 Ga. at
549-550 (2), citing United States v. Sterling, 738 F3d 228, 238-239 (III) (B) (11th
Cir. 2013) & United States v. Johnson, 27 F3d 1186, 1193 (II) (B) (6th Cir. 1994).
20
prosecutor actually used the extrinsic act evidence at trial.”31 During closing
argument, although the State maintained that the evidence of Houseworth’s
subsequent DUI arrest was important because it “goes to intent,” the prosecutor went
on to explain that “[i]t shows you that she consumed alcohol and intends to drive. .
. .” This statement impermissibly implies course of conduct and propensity, not intent.
Neither course of conduct nor propensity are listed as proper purposes to admit Rule
404 (b) evidence32; in fact, “Rule 404 (b) prohibits the admission of [similar act]
evidence when it is offered solely for the impermissible purpose of showing a
defendant’s bad character or propensity to commit a crime.”33
Therefore, instead of going to the issue of intent, the admission of
Houseworth’s subsequent DUI arrest “creat[ed] the potential that the jury would
render a decision predicated on [her propensity to drink and drive] in addition to the
stigma already associated with a [similar criminal act].”34Accordingly, we conclude
31
Jones IV, 301 Ga. at 550 (2).
32
The new Evidence Code specifically omitted course of conduct as a
permissible purpose for other acts evidence. See Thompson v. State, 302 Ga. 533, 538
(III) (A) (807 SE2d 899) (2017).
33
(Punctuation and emphasis omitted.) Jones II, 297 Ga. at 159 (2).
34
Jones IV, 301 Ga. at 550 (2).
21
that the trial court abused its discretion by admitting evidence of Houseworth’s
subsequent DUI arrest “because the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice.”35
(b) Having concluded that the admission of the similar act evidence was
erroneous,
we must review the record de novo to determine whether the trial court’s
error was harmless. The test for determining nonconstitutional harmless
error is whether it is highly probable that the error did not contribute to
the verdict. In doing so, 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.36
So viewed, the evidence of Houseworth’s guilt for vehicular homicide, while
sufficient to support her conviction, was not overwhelming. Again, the State had to
prove that Houseworth, without malice aforethought, caused the accident which
caused Gleaton’s death, through a violation of the hit-and-run statute.37 The evidence
at trial showed that Gleaton stopped and exited Houseworth’s car on one side of the
35
Id.
36
(Citations and punctuation omitted.) Brown, 303 Ga. at 164 (2).
37
See OCGA 40-6-393 (b).
22
four-lane divided highway, and then, in the dark and rain, crossed the highway and
the median and was in the road on the other side of the highway — where
Houseworth had no reason to expect him to be — when Houseworth’s vehicle made
contact with him. Under these circumstances, there was not overwhelming evidence
that Houseworth caused the accident. Thus, “we cannot say that it is highly probable
that the error did not contribute to the verdict. Accordingly, we must reverse
[Houseworth’s] convictions.”38 We note, however, that because there was sufficient
evidence to sustain the jury’s guilty verdict, “double jeopardy therefore would not bar
a retrial in this instance.”39
Judgment reversed. Dillard, C. J., and Mercier, J., concur.
38
Brown, 303 Ga. at 165 (2)
39
Thompson, 302 Ga. at 545 (V). Compare Jones IV, 301 Ga. at 550-551 (3)
(holding that error in admitting Rule 404 (b) evidence was harmless and did not
require reversal of conviction for DUI per se in light of evidence that the defendant’s
blood alcohol concentration was substantially in excess of the legal limit).
23