The State v. Spriggs , 338 Ga. App. 655 ( 2016 )

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH 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
September 21, 2016
In the Court of Appeals of Georgia
A16A0871. THE STATE v. SPRIGGS.
BRANCH, Judge.
After Andre Spriggs was charged with the armed robbery of a convenience
store clerk whom he shot in the head, a trial court granted Spriggs’ motion to suppress
two undated “selfie” cell phone videos in which he talked about making money by
various means, including armed robbery. The State argues that the grant was
erroneous because the videos were relevant and probative evidence of Spriggs’ intent
and motive in the armed robbery. We disagree and therefore affirm.
We review a decision to admit or exclude evidence under OCGA §§ 24-4-403
and 24-4-404 (b) only for a “clear abuse of discretion.” Bradshaw v. State, 296 Ga.
650, 656 (3) (769 SE2d 892) (2015) (citation omitted). See also State v. Jones, 297
Ga. 156, 164 (3) (773 SE2d 170) (2015) (the exclusion of evidence under the
balancing test of Rule 403 “is an extraordinary remedy which should be used only
sparingly since it permits the trial court to exclude concededly probative evidence”)
(citation and punctuation omitted).
At the hearing on the motion to suppress at issue, the State proffered evidence
that on September 4, 2014, Spriggs’ sister Amanda opened the door to the secured
cashier area of the convenience store where she was working, admitting Spriggs, who
entered and demanded that the man also working there get on his knees. Spriggs then
shot the man in the head, grabbed cash from behind the counter, and ran out the door.
Amanda called 911, providing the dispatcher with a false description of the shooter
in order to deflect attention from herself and her brother. Text messages between the
two showed that they had planned and executed the robbery together.
Spriggs and his sister were arrested and charged with attempted murder, armed
robbery, aggravated assault, aggravated battery, and possession of a firearm during
the commission of a felony. The State filed a notice of its intention to introduce two
videos from Spriggs’s cell phone, which was seized in the wake of his arrest, on the
ground that the videos were relevant to show Spriggs’s intent, knowledge, plan,
motive, opportunity, and preparation as authorized by OCGA § 24-4-404 (b).
Although Spriggs told police that he “never had no gun in [his] possession, period,”
2
both videos, which are not included in the appellate record, apparently show him
holding a handgun. The parties agree that in the first video, Spriggs says to the
camera, “I sit back and think, man, of the ways I can make money. Shit. Nine to five,
selling dope, or just straight robbing n******.” In the second, Spriggs says, “Yea
man, I’m an ATB azz, n***** man. Affiliated with the trap boy[,]1 man. N***** try
me, man, they know what’s happening, man. We stay strapped like a foo foo and I
don’t give a f***. I’ll blow your f***ing head off, you hear me. Straight like that.”
After a hearing at which the trial court viewed the two videos, the court noted
that the State had failed to provide any evidence “as to when or under what
circumstances” Spriggs had made the videos or that “the videos were linked to the
indicted incident in any way.” Accordingly, the trial court held that the State failed
to show that the videos “would prove anything other than [Spriggs]’ propensity to rob
or injure others.” Finally, the trial court held that any probative value the videos may
have had “would be substantially outweighed by its undue prejudice” to Spriggs. The
1
“Trap boy” is slang for drug dealer. See http://www.urbandictionary.com
/define.php?term=trap+boy, accessed April 19, 2016.
3
State brought this appeal under OCGA § 5-7-1 (a) (5).2 On appeal, the State concedes
that the videos are not linked to the armed robbery and thus are not intrinsic to that
crime.3 Rather, the State asserts that the trial court erred when it excluded the videos
as extrinsic evidence under OCGA § 24-4-403 and 404 (b) because they were relevant
and probative as to Spriggs’s intent and motive to commit the armed robbery at issue.
See Baughns, 335 Ga. App. at 602 (1).
Under the three-part test adopted by our Supreme Court in Bradshaw and
Jones, when the State seeks admission of “extrinsic” or “other acts” evidence, it must
show that the proffered evidence
(1) . . . is relevant to an issue other than a defendant’s character, see
Rule 404 (b); (2) the probative value of the other acts evidence is not
2
OCGA § 5-7-1 (a) (5) authorizes appeals from “an order, decision, or
judgment excluding any . . . evidence,” other than evidence suppressed as the result
of an illegal seizure (see OCGA § 5-7-1 (a) (4)). See State v. Andrade, 298 Ga. 464,
466-467 (782 SE2d 665) (2016).
3
Compare Baughns v. State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016)
(“‘evidence is intrinsic to the charged offense, and thus does not fall within Rule 404
(b)’s ambit, if it (1) arose out of the same transaction or series of transactions as the
charged offense; (2) is necessary to complete the story of the crime; or (3) is
inextricably intertwined with the evidence regarding the charged offense’”) (quoting
United States v. Nowak, 370 Fed. Appx. 39, 41 (I) (11th Cir. 2010)); see also United
States v. Troya, 733 F3d 1125, 1131-1132 (II) (A) (11th Cir. 2013) (unlike Rule 404
(b) evidence, relevant “direct” evidence is always admissible unless it falls under a
rule of exclusion, including Federal Rule of Evidence 403).
4
substantially outweighed by its unfair prejudice, i.e., the evidence must
satisfy the requirements of Rule 403; and (3) there is sufficient proof so
that the jury could find that the defendant committed the act in question.
Jones, 297 Ga. at 158-159 (1) (citations omitted; emphasis supplied), citing
Bradshaw, supra.
As an initial matter, it is undisputed that Spriggs made the videos at issue here.
The third part of the above test for the admission of relevant evidence under Rules
403 and 404 (b) is thus satisfied. Turning to the first and second parts of the same
test, then, we consider whether (1) the videos were “relevant to an issue other than
[Spriggs’s] character” and (2) even if so, the trial court abused its discretion in
excluding them as unfairly prejudicial under Rule 403.
1. OCGA § 24-4-404 provides that, with the exception of character evidence
admissible under subsections (a) (1), (2), and (3),4
4
See OCGA § 24-4-404 (a):
Evidence of a person’s character or a trait of character shall not
be admissible for the purpose of proving action in conformity therewith
on a particular occasion, except for:
(1) Evidence of a pertinent trait of character offered by an accused
or by the prosecution to rebut the same; or if evidence of a trait of
character of the alleged victim of the crime is offered by an accused and
admitted under paragraph (2) of this subsection, evidence of the same
trait of character of the accused offered by the prosecution;
5
(b) [e]vidence 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.
(Emphasis supplied.) Rule 404 (b) 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.”
Jones, 297 Ga. at 159 (2) (citation omitted).
To satisfy the first prong of the test for admission of extrinsic acts, the State
had to show that the evidence of the extrinsic acts was “relevant to an issue other than
[Spriggs’s] character.” Jones, 297 Ga. at 158-159 (1); see also Olds v. State, 299 Ga.
65, 75 (2) (786 SE2d 633) (2016) (“Evidence is relevant if it has ‘any tendency’ to
prove or disprove a fact”) (quoting OCGA § 24-4-401) (emphasis in original).
(2) Subject to the limitations imposed by Code Section 24-4-412,
evidence of a pertinent trait of character of the alleged victim of the
crime offered by an accused or by the prosecution to rebut the same; or
evidence of a character trait of peacefulness of the alleged victim offered
by the prosecution in a homicide case to rebut evidence that the alleged
victim was the first aggressor; or
(3) Evidence of the character of a witness, as provided in Code
Sections 24-6-607, 24-6-608, and 24-6-609.
6
Although the State argued below that the videos were relevant to show opportunity
and preparation, the State has not renewed these arguments on appeal. We therefore
consider whether the videos were relevant, even as extrinsic evidence, to prove
Spriggs’s intent or motive to commit the armed robbery under Rule 404 (b).
Our Supreme Court has recently clarified that
evidence that an accused committed an intentional act generally is
relevant to show — the evidence, in other words, has some tendency to
make more or less probable — that the same defendant committed a
similar act with the same sort of intent, especially when the acts were
committed close in time and in similar circumstances. See generally 2
Weinstein’s Federal Evidence § 404.22 (1) (a) (“The requisite intent
may be inferred from the fact that, after being involved in a number of
similar incidents, the defendant must have had a mental state that is
inconsistent with innocence.”)[.]
Olds, 299 Ga. at 72 (2) (citations omitted; emphasis supplied.) As the Eleventh
Circuit has noted, “if the extrinsic acts require the same intent as the charged offenses
and if these acts are proximate in time to the charged offenses, then the extrinsic act
7
is highly probative.” United States v. Church, 955 F2d 688, 702 (IV) (A) (11th Cir.
1992) (citation and punctuation omitted; emphasis supplied).5
In order to prove that Spriggs committed armed robbery, the State would have
to show that Spriggs had “the intent to commit theft and did so with an offensive
weapon or any device having the appearance of such weapon.” Worthy v. State, 237
Ga. App. 565, 567 (2) (515 SE2d 869) (1999), citing OCGA § 16-8-41 (a) (defining
armed robbery) (citation and punctuation omitted). Thus the State might have
obtained admission of the videos at issue if it had shown that Spriggs’s extrinsic act
of making the videos was “a similar act with the same sort of intent” as that of
committing armed robbery. Olds, 299 Ga. at 72 (2) (citation omitted). The State has
not shown, however, that Spriggs’s act of making the videos amounted to any
criminal act, let alone that it required the same or similar intent as the charged offense
of armed robbery. The acts of making the videos and of committing the armed
5
“Many provisions of the new Evidence Code were borrowed from the Federal
Rules of Evidence, and when we consider the meaning of these provisions, we look
to decisions of the federal appellate courts construing and applying the Federal Rules,
especially the decisions of the United States Supreme Court and the Eleventh Circuit.
[Cit.] Rule 404(b) is one such provision, see State v. Jones, 297 Ga. 156, 158(1) (773
SE2d 170) (2015), and so, when we have considered the meaning of Rule 404 (b), we
consistently have looked for guidance in the decisions of the federal appellate courts
construing and applying [that Rule].” Olds, 299 Ga. at 69 (2) (citations omitted).
8
robbery are thus not “similar acts” for purposes of Rule 403 because they do not share
“the same sort of intent.” Olds, 299 Ga. at 72 (2) (citations omitted). There is no
evidence here, for example, that any of the statements made in the videos, even if
threatening, identified or were communicated to any prospective victim such that they
could have amounted to a terroristic threat. See, e.g., Sidner v. State, 304 Ga. App.
373, 375-376 (1) (696 SE2d 398) (2010) (reversing conviction for terroristic threats
when there was no evidence that the defendant’s threat was communicated to any
victim). Further, and as the trial court noted, moreover, the State has provided no
evidence that the two acts of making the video and committing the armed robbery
were “committed close in time and in similar circumstances.” Olds, 299 Ga. at 72 (2).
A recent decision from the Eleventh Circuit provides us with an instructive
scenario as to when a videotape of an extrinsic act would be admissible as probative
and not unduly prejudicial under Rule 404 (b), and confirms our conclusion that the
videos before us do not present such a scenario. In United States v. Hodges, 616 Fed.
Appx. 961 (11th Cir. 2015), “[t]wo witnesses with knowledge testified as to the
contents and the circumstances of discovery” of videos and photographs “taken from
a computer or external hard drive” showing the defendant “sitting beside what
appear[ed] to be marijuana and a digital scale” and also showing “marijuana
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displayed alongside cash, digital scale, and guns[.]” Id. at 966-967 (3) (C). The
Eleventh Circuit held that the videos and photographs were relevant to Hodges’s
“intent to distribute the marijuana found in the house” as well as his “intent to
exercise control over the guns found outside” the house, and thus to the charged
offenses of possession of marijuana with intent to distribute and possession of
firearms in furtherance of drug trafficking. Id. at 967 (3) (C). A jury could reasonably
conclude that the acts portrayed on the videos in Hodges were committed with the
same criminal intent as those charged, with the result that the videos portraying such
acts would be admissible extrinsic evidence under Rule 404 (b). Here, as we have
noted, Spriggs’s making of the videos was not a criminal act, with the result that the
State has failed to show that the making of the videos and the armed robbery were
either “similar acts with the same sort of intent.” Olds, 299 Ga. at 72 (2).
The result is the same as to the State’s argument that the videos were
admissible as extrinsic evidence to show motive in the armed robbery. As an example,
the Eleventh Circuit has ruled that prior drug convictions are not only “highly
probative of intent” as to charged drug and firearm offenses, but also “probative of
[the defendant’s] knowledge of the drug trade [as showing] his motive to possess a
gun.” United States v. Johnson, 348 Fed. Appx. 468, 469 (11th Cir. 2009); see also
10
Bradshaw, 296 Ga. at 657 (evidence of a prior murder was relevant to motive
“because it demonstrated [defendant’s] willingness to use violence when he or
someone close to him is cheated in a drug deal”) (citation omitted). By contrast,
Spriggs’s act of making videotapes containing vague threats and showing him in
possession of a gun does not demonstrate motive, as these acts were not in themselves
criminal. Further, the fact that Spriggs possessed a gun in the armed robbery he
allegedly committed “do[es] nothing to distinguish [Spriggs] from most other robbers
or to prove a specific motive for this crime.” Milich, Georgia Rules of Evidence,
2015-2016 ed., § 11.13, pp. 317-318, n. 6. Instead, such facts show only a mere
propensity to commit armed robbery, and are thus inadmissible. Id.
2. Even if we assume that the videos were relevant to prove intent or motive
to commit the armed robbery, the second part of the test for admission of extrinsic
evidence provides that a trial court may exclude “[r]elevant evidence . . . if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403.
“Even when a trial court determines that all three prongs of the test for admissibility
under OCGA § 24-4-404 (b) are satisfied, the trial court may still exclude the
11
evidence pursuant to OCGA § 24-4-403” as long as that exclusion is not an abuse of
discretion. State v. Brown, 333 Ga. App. 643, 653 (3) (777 SE2d 27) (2015). Here
too, our Supreme Court has given us recent guidance to the effect that “the greater the
tendency to make the existence of a fact more or less probable, the greater the
probative value.” Olds, 299 Ga. at 75 (2).
[T]he 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. See Milich, Georgia Rules of Evidence § 6.1 (2015)
(“Probative value refers to the strength of the connection between the
evidence and what it is offered to prove.”). 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.
Id. at 75-76 (2) (footnotes omitted; emphasis supplied).
The videos at issue here have not been included in the appellate record, with
the result that notwithstanding the parties’ agreement as to their verbal content, we
must defer to the trial court’s determination that taken as a whole, their prejudicial
effect substantially outweighed their probative value. See State v. Reid, 313 Ga. App.
633, 634-635 (722 SE2d 364) (2012) (where trial court’s judgment was based not
12
only on a video absent from the appellate record, but also on an assessment of
credibility, the appellate court was required to defer to the trial court’s ruling and did
affirm that ruling). As we have already noted, moreover, the State failed to introduce
any evidence as to the time when the videos were made, and the videos themselves
make no reference to any specific victim, such that they have only a tenuous “logical
connection” to Spriggs’s intent to commit the specific armed robbery at issue and thus
little or no probative value as extrinsic evidence. Olds, 299 Ga. at 76 (2); compare
Church, 955 F3d at 702 (IV) (A) (if an extrinsic act “require[s] the same intent as the
charged offenses and is proximate in time to the charged offenses, then the extrinsic
act is highly probative”). Finally, the videos at issue here included statements as to
Spriggs’s involvement in drug dealing, an illegal activity which had no relevance to
the charged crime of armed robbery, but references to which would have been highly
prejudicial. See United States v. Loughry, 660 F3d 965, 972-975 (II) (A) (4), (B) (7th
Cir. 2011) (trial court abused its discretion in admitting child pornography videos, the
probative value of which was substantially outweighed by the danger of unfair
prejudice as to the adult pornography charges at issue such that a new trial was
required). This record thus supports the trial court’s discretionary determination that
13
any probative value the videos might have had was substantially outweighed by their
unduly prejudicial effect.
For these reasons, we affirm the court’s exclusion of the videos under OCGA
§§ 24-4-403 and 24-4-404 (b). See State v. Dowdell, 335 Ga. App. 773, 781 (783
SE2d 138) (2016) (Peterson, J., concurring specially) (because “the record contains
some support for the trial court’s conclusion that the proffered other-acts evidence
would be of limited probative value,” the appellate court could not “set that
conclusion aside while applying an abuse of discretion standard” to the decision to
exclude that evidence).
Judgment affirmed. Mercier, J., concurs. Ellington, P. J., concurs in judgment
only.
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