Harris v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 22, 2022
S22A0092. HARRIS v. STATE.
NAHMIAS, Chief Justice.
At 9:26 a.m. on June 18, 2014, Appellant Justin Ross Harris
closed the door of his Hyundai Tucson SUV and walked into work.
His 22-month-old son Cooper, whom Appellant was supposed to
have dropped off at a day care center as usual on the way to work
that morning, was strapped into a rear-facing car seat in the back
seat. After hours in the hot car, Cooper died of hyperthermia.
What was going through Appellant’s mind when he left the
vehicle? The State’s theory was that Appellant intentionally and
maliciously abandoned his child to die a slow and painful death
trapped in the summer heat, so that Appellant could achieve his
dream of being free to further his sexual relationships with women
he met online. The defense theory was that Appellant was a loving
father who had never mistreated Cooper and simply but tragically
forgot that he had not dropped off the child on that particular
morning. During Appellant’s trial, substantial evidence was
presented to support both theories.
But the State also presented a substantial amount of evidence
to lead the jury to answer a different and more legally problematic
question: what kind of man is Appellant? Through extensive
evidence about Appellant’s extramarital sexual relationships –
which included sending graphic sexual messages and pictures to
multiple women, including minors, and hiring a prostitute – the
State convincingly demonstrated that Appellant was a philanderer,
a pervert, and even a sexual predator. This evidence did little if
anything to answer the key question of Appellant’s intent when he
walked away from Cooper, but it was likely to lead the jurors to
conclude that Appellant was the kind of man who would engage in
other morally repulsive conduct (like leaving his child to die
painfully in a hot car) and who deserved punishment, even if the
jurors were not convinced beyond a reasonable doubt that he
2
purposefully killed Cooper.
As explained below, although the evidence presented at
Appellant’s trial was legally sufficient to support his convictions for
the crimes against Cooper, and some of the evidence regarding
Appellant’s sexual activities was properly admissible as intrinsic
evidence of those crimes or to establish the State’s motive theory,
the trial court should have excluded much of this evidence under
OCGA § 24-4-403 because it was needlessly cumulative and
prejudicial, including three categories of highly prejudicial evidence:
the evidence that Appellant exchanged lewd and sometimes illegal
sexual messages and pictures with four minors; the nine color
pictures of Appellant’s erect penis that the State extracted from
messages and blew up to full-page size as separate exhibits; and the
evidence that Appellant hired a prostitute three times. Moreover,
because the trial court denied Appellant’s motion to sever the trial
of three counts of the indictment alleging sexual crimes Appellant
committed against one of the minors, C.D., based on the court’s
erroneous determination that all of the sexual evidence was
3
admissible with respect to the counts alleging crimes against
Cooper, the court also erred in denying severance. The trial court’s
interrelated errors in trying all of the counts together and admitting
all of the sexual evidence resulted in the presentation to the jury of
substantial and compelling evidence establishing Appellant’s sexual
deviance, including his commission of additional sexual crimes.
Because the properly admitted evidence that Appellant
maliciously and intentionally left Cooper to die was far from
overwhelming, we cannot say that it is highly probable that the
erroneously admitted sexual evidence did not contribute to the jury’s
guilty verdicts. We therefore reverse Appellant’s convictions on the
counts charging crimes against Cooper. Because the State may elect
to try Appellant again on those charges, we also address several
issues that may recur if there is a retrial. Appellant does not
challenge his convictions for the sexual crimes he committed against
C.D., as to which there was overwhelming evidence, and so we affirm
4
the judgment as to those three counts. 1
1. The evidence presented at trial
The evidence presented at Appellant’s trial showed the
following. 2 In June 2014, Appellant, who was then 33 years old, had
been married to Leanna Harris for eight years, 3 and they had one
1 The crimes against C.D. occurred between March 1 and June 18, 2014;
Cooper died on June 18, 2014. In September 2014, a Cobb County grand jury
indicted Appellant for five alleged crimes against Cooper (malice murder, two
counts of felony murder, and cruelty to children in the first degree and second
degree) and three alleged crimes against C.D. (attempt to commit sexual
exploitation of a child and two counts of dissemination of harmful material to
a minor). After difficulty striking an impartial jury in Cobb County, Appellant’s
trial was moved to Glynn County, where he was tried beginning on September
12, 2016. After nine and a half days of jury selection, opening statements began
on October 3, and closing arguments were on November 7. After almost three
and a half days of deliberation, the jury found Appellant guilty of all charges
on November 14. On December 5, 2016, the trial court sentenced him to serve
life in prison without parole for malice murder and consecutive sentences of 20
years for first-degree child cruelty, 10 years for attempt to commit sexual
exploitation of a child, and one year for each count of dissemination of harmful
material to a minor. The court vacated the felony murder counts and merged
the second-degree child-cruelty count into the first-degree child-cruelty count.
Appellant then filed a timely motion for new trial, which he amended in
December 2020 with new counsel. In May 2021, after two evidentiary hearings,
the trial court denied Appellant’s motion, and he then filed a timely notice of
appeal. The case was docketed to the term of this Court beginning in December
2021 and orally argued on January 18, 2022.
2 Because this case requires a careful assessment of whether errors by
the trial court were harmful and require reversal, we recount the evidence in
considerable detail and not only in the light most favorable to the jury’s
verdicts. See Strong v. State, 309 Ga. 295, 296 n.2 (845 SE2d 653) (2020).
3 By the time of trial, Leanna had divorced Appellant and changed her
5
son, Cooper, who was 22 months old. Appellant worked as a web
developer for Home Depot in one of its corporate office buildings in
Cobb County.
(a) The night before Cooper’s death
At 7:11 p.m. on June 17, Appellant sent Google chat messages
to his friends Winston Milling, Alex Hall, and Jason Abdo, asking if
they wanted to go to a movie the next day; by 9:47 p.m., Appellant,
Milling, and Hall had made plans to see a movie at 5:00 p.m. at the
theater near their Home Depot offices.4 At 7:47 p.m., Appellant
searched the Sandals vacation website for trips for two adults and
no children. 5
last name.
4 Milling and Hall worked with Appellant at Home Depot, although in a
building across the street from Appellant’s; Abdo had recently left Home Depot.
Appellant was also beginning a side business with the three men doing web
development. Message records admitted at trial showed that since April 7,
2014, the four men had communicated with each other almost every day
through a Google group chat. Milling testified that it would be more common
for him or Hall to suggest going to a movie, but it was not out of the ordinary
for Appellant to make the suggestion. When deciding on the time for the movie,
Hall suggested 5:00 or 7:35 p.m., Milling replied, “I am fine with 5:00 PM,” and
then Appellant replied, “5pm would be the best.”
5 Leanna testified that on May 6, Appellant had proposed going on a
vacation with Abdo and Abdo’s girlfriend and without Cooper. Detective Phil
6
Extensive evidence at trial showed that Appellant regularly
communicated online with young women and girls about sexual
topics. 6 The early morning hours of June 18 were no exception. At
12:14 a.m., Appellant sent a message, the content of which was not
preserved in the message record, to C.D., a girl who was then 17
years old. 7 Also at 12:14 a.m., Elizabeth Smith, a 21-year-old woman
with whom Appellant had been communicating since January 2014,
sent him a screenshot that is unreadable in the record. Appellant
responded less than a minute later, and they started discussing
their previous sexual encounter; their conversation ended at 12:44
Stoddard testified that on June 17, Appellant looked at websites for vacation
destinations like Sandals Bahamas, which do not allow children.
6 Appellant began communicating with a few of these women on a dating
website and many others through an online application called “Whisper.”
Whisper’s custodian of records explained that using the app, “users can
interact with one another” by posting and responding to “user-generated
content.” Appellant’s electronic records show that he was a frequent user of
Whisper, responding to many posts in a day, some sexual, some not sexual.
Whisper and other messages are quoted in this opinion with brackets to clarify
language but without correction of spelling or grammar.
7 Appellant began communicating with C.D. in the fall of 2013, when she
was 16. Appellant’s communications with C.D. are further detailed below in
Division 1 (k).
7
a.m.8
At 12:40 a.m., Appellant emailed a co-worker saying that he
could not solve a problem on a project and asking the co-worker to
help him the next day at work. At trial, the co-worker explained that
Appellant was behind on this project, was dodging check-in calls
about it, and had promised to finish it by June 17.9
Leanna testified that around this time in June, she and
Appellant were also planning a family vacation. Appellant had
recently talked to a travel agent about arranging a cruise for him,
Smith testified that her online conversations with Appellant were often
8
sexual. In February 2014, she met Appellant in a parking lot, and they had sex
in his vehicle. They met again in a parking lot in April 2014 and kissed.
Appellant told Smith that he was having “problems in the bedroom” with his
wife, but he never said anything about leaving Leanna. Appellant also sent
Smith pictures of himself and Cooper when they went to a Braves game on
April 25. On June 15, Appellant sent Smith a picture of his erect penis.
Appellant’s messages with Smith beginning on January 19, 2014 were
admitted into evidence at trial, although the record does not show Smith’s
responses until March 20. This message record includes a thumbnail-size
version of the picture of Appellant’s penis that he sent; a full-page version of
this penis picture was also admitted as a separate exhibit.
9 The co-worker testified that Appellant seemed “kind of stressed” about
the project, and another co-worker testified that in the weeks before Cooper’s
death, Appellant “seemed a little distant, . . . a little stressed out.” Milling and
Hall, however, testified that Appellant did not seem stressed on or around June
18.
8
Leanna, Cooper, his brother, his sister-in-law, and their children. At
12:48 a.m., Appellant did a Google search for child passport fees.
(b) The morning of Cooper’s death
According to Appellant, 10 Cooper woke up around 5:15 a.m.
Appellant brought Cooper into his and Leanna’s bed, and eventually
Cooper fell back to sleep. Between 5:46 and 5:49 a.m., Appellant sent
more messages to women online. He sent a message to Jaynie
Meadows, saying “Morning”; she did not respond.11 Smith sent a
10 As detailed further below, Appellant spoke to Detective Stoddard and
another Cobb County detective in a video-recorded interview at the police
station that began about two hours after Cooper’s death was discovered on
June 18. The interview was played for the jury. After that interview, Appellant
was allowed to see and speak to Leanna in an interview room, and he gave an
account of the day that was consistent with what he told Detective Stoddard.
That conversation was also video recorded and played for the jury. Appellant
did not testify at trial.
11 Meadows testified that she started communicating with Appellant in
May 2013, when she was 18 years old. They talked online and on the phone
sometimes, having sexual and non-sexual conversations. Eventually, both of
them expressed feelings of love. In August 2013, after Meadows told Appellant
where she was going to be one day, he unexpectedly showed up, and they
kissed. They did not meet in person again, but they continued to talk and
express their love for each other. Appellant told her that he was having
problems in his marriage and that “if his situation was different he would be
with [Meadows] instead of [Leanna].” He also talked about how much he loved
Cooper and said that if it were not for Cooper, he would leave Leanna.
Appellant told Meadows that he “wanted to be with Cooper for everything he
did” and that “Cooper was his life.” Meadows also testified that Appellant once
9
message saying that she was “horny” and wanted to give oral sex,
and less than 30 seconds later Appellant responded, “Did you suck
some dick?” Appellant also sent a message to Caitlin Floyd saying,
“Good morning.” 12
complained about a particularly bad bowel movement Cooper had and that on
another occasion Appellant “might have gotten” “irritated” about having to
stay home with Cooper. Sometimes Meadows could hear Cooper “babbling” in
the background when she talked on the phone to Appellant while he was
driving. At times during their relationship, including in March and May 2014,
Meadows would stop responding to Appellant’s messages, which would upset
him. On June 15, 2014, after having a brief conversation about Appellant’s air
conditioning being out, Meadows did not respond to his last message. On the
morning of June 17, Appellant sent her messages that said, “Well you’re gone
again,” and “That makes me sad.” She did not respond. A record of their
messages beginning on December 9, 2013, with only Appellant’s messages until
April 1, 2014, was admitted into evidence at trial.
12 Floyd testified that she and Appellant began communicating on June
3, 2014, when she was 23 years old. They had “[m]ostly just regular
conversation as well as sexual things.” Appellant asked her if she wanted to
meet, but they never did. On June 4, when Appellant talked about playing
guitar at his church and thinking about “being with someone else” even though
he was married, Floyd asked him if his conscience “ever kick[ed] in.” Appellant
said, “Nope.” She then asked him, “So what do you plan on doing,” and he said
he did not know. On June 11, Appellant sent Floyd a picture of his erect penis
and they discussed the possibility of her coming over to his home after Leanna
left in the morning; Appellant said that it would be “Risky,” but then said, “As
long as I can pound that c**t I’m game for risk.” On June 13, he told Floyd that
he was “[v]ery” happy in his marriage, “[m]inus sex” because he was “to much
of a sexual freak.” A record of Appellant’s messages with Floyd beginning June
3, 2014, was admitted into evidence. This record includes a thumbnail-size
version of the picture of Appellant’s penis that he sent; a full-page copy of this
penis picture was admitted as a separate exhibit.
10
Leanna testified that she left home for work at about 7:15 a.m.
That morning, like most mornings, Appellant was responsible for
dropping off Cooper at Little Apron Academy, Home Depot’s in-
house day care center, which Cooper had attended since infancy. 13
According to Appellant, after waking up again, Cooper played with
his toys and watched cartoons until about 8:00 a.m. During this
time, from 7:15 to 8:16 a.m., Appellant responded to four Whisper
posts, three non-sexual and one sexual, and sent a message to Smith
saying, “You can come suck me today.”14
Appellant and Cooper left their home around 8:30 a.m.
Appellant drove a Hyundai Tucson SUV, and Cooper sat in a red,
rear-facing car seat, which was placed in the middle seat in the back
row. The top of the car seat was 3.5 inches from the back of the
13 The sign-in logs from Little Apron as well as testimony from Leanna
and Cooper’s teachers demonstrated that Appellant dropped off Cooper at the
day care center most mornings, although Leanna took him occasionally.
14 The non-sexual Whisper posts were about hating waking up early,
coffee enemas, and the MacBook Air laptop. The other post was about a
vibrator; Appellant replied, “I bet sex with you is amazing,” and expressed
regret that he could not experience it.
11
driver’s seat.15 There was conflicting testimony about whether the
top of Cooper’s head extended over the top of the car seat. When
measured at his autopsy, Cooper was 33 inches tall, and Detective
Phil Stoddard, the lead detective on the case, testified that the child
height limit for the car seat was 30 inches. Leanna, however,
testified that Cooper’s head was at least two inches from the top of
the car seat. She further testified that a picture taken on April 20 of
Cooper in the car seat, in which the top of his head was not above
the top of the car seat, showed how Cooper looked in the seat when
she last remembered seeing him in the car seat on June 5 and that
15 The Tucson had five seats, two in front and three in back. The Tucson’s
rear passenger windows and rear windshield were tinted darker than the
driver and front passenger windows and front windshield. After Cooper’s
death, pictures, video, and measurements of the interior of the Tucson were
taken before the car seat was removed. They were admitted into evidence at
trial. Also, the measurements were used to replace the car seat, and the jury
was allowed to view the Tucson with the car seat replaced. The jurors were not
allowed to enter the vehicle, but could walk around the Tucson and look in the
open driver’s door. Additionally, David Dustin, an expert in creating three-
dimensional (3-D) computer models, took 3-D scans of the Tucson with the car
seat replaced. He also created a doll and put it in the car seat as a
representation of Cooper when he took the 3-D scans. From these scans, Dustin
created a 3-D computer model that was used as a demonstrative aid to show
the location of things in the Tucson. Appellant’s challenge to the admission of
the 3-D model is discussed in Division 6 (b) below.
12
he had not experienced any “growth spurts” since that time. 16
(c) The visit to Chick-fil-A
According to Appellant, because they were running late that
morning, he decided to take Cooper to Chick-fil-A for a “daddy/son
breakfast.” The day care center fed Cooper breakfast if he arrived
before 8:45 a.m. 17 Receipts found in Appellant’s Tucson and
testimony from Chick-fil-A and Home Depot employees showed that
he frequently went to a Chick-fil-A restaurant near his Home Depot
office for breakfast, but he usually dropped off Cooper at day care
first and then went to the Chick-fil-A drive-through. 18
16 One of Cooper’s day care teachers, however, testified that Cooper
“started hitting a growth spurt” and “stretching out more leading up to” June
18.
17 One of Cooper’s day care teachers testified that Cooper usually ate
breakfast at the center, and if Appellant and Cooper were running late,
Appellant would call and ask them to hold breakfast for Cooper. Appellant also
would sometimes call and let them know if Cooper ate breakfast at home or if
they stopped at Chick-fil-A. He did not call on June 18.
18 Appellant told Detective Stoddard that he took Cooper to breakfast at
the Chick-fil-A “approximately 2 to 3 times a month,” but a text message he
sent Leanna on March 14, 2014 said “daddy/son bfast. We haven’t done it in 2
mos,” and there were no messages or testimony indicating that Appellant took
Cooper for a daddy/son breakfast between March 14 and June 18. On the day
of Cooper’s death, Leanna told detectives that Appellant would take Cooper to
Chick-fil-A “every couple weeks or so,” but she testified that she did not
actually know how often Appellant took Cooper to Chick-fil-A and her answer
to the detectives was a “guess then, and it would be a guess now.”
13
On the way to the Chick-fil-A, Appellant got an email from one
of his co-workers asking to move their meeting that was scheduled
for 10:00 that morning to later in the day; Appellant responded to
the email at 8:46 a.m., agreeing to postpone the meeting. And
Appellant responded to two Whisper posts, writing one comment
about college final exams and one comment about how he thinks tall
girls are sexy, but he’s “not very single.” At 8:59 a.m., Appellant and
Cooper entered the Chick-fil-A, where they stayed eating breakfast
for about 20 minutes.
Around this time, Appellant engaged in another conversation
on Whisper (which the State emphasized at trial). At 8:55 a.m.,
shortly before walking into the Chick-fil-A, Appellant responded to
a Whisper post that said, “I hate being married with kids. The
novelty has worn off, and I have nothing to show for it.” Appellant
wrote, “I miss having time by myself and going out with friends.” At
9:12, the poster responded, “Yeah, I have nothing. Every oz [ounce]
of me is in being a perfect unappreciated wife with two little ones
that drain out the rest of me. I dnt [don’t] resent my kids, I resent
14
him.” At 9:15, Appellant wrote, “My wife is upset when I want to go
out with friends,” and “I love my son and all but we both need
escapes.” About two minutes later, the poster replied, “Maybe that’s
our issue too. I need a break from ‘love.’” At 9:24, Appellant
responded, “Agreed,” “*hug*,” “We both need that.”19
(d) Driving from the Chick-fil-A to work
Appellant and Cooper left the Chick-fil-A at 9:20 a.m. A Chick-
fil-A employee testified that Cooper was awake when Appellant
carried him out of the restaurant. According to Appellant, when he
put Cooper in the car seat, he gave Cooper a kiss and said, “ready,
let’s go”; Cooper gave him a kiss back.20 Appellant then drove
19 During Leanna’s testimony, evidence was presented that on May 7,
2014, Appellant sent Leanna a message that he was going to “have a drink or
two tonight with the guys to celebrate the start of our company.” Leanna
expressed frustration that he “always” wanted to go out on Thursdays, when
she wanted to be able to watch a television show on that night with her
neighbor. After further discussion, Leanna wrote, “I didn’t mean to be mean,”
and then explained that she felt like Appellant was “always going out” with his
friends, whereas she rarely got to go out because her “priority” was Appellant
and Cooper. Appellant responded: “But I want you to go out with friends.” The
conversation ended with Appellant saying, “I love you and cooper. And I love
spending time with you guys.”
20 Detective Stoddard testified that Appellant told Leanna that Cooper
said “school.” That is not clear from the recording of Appellant’s conversation
15
directly to work instead of going to Little Apron Academy.
As shown by maps and testimony from Detective Stoddard,
who made repeated test drives of Appellant’s route in a rented
Tucson, to get from the Chick-fil-A to Appellant’s Home Depot office,
Appellant had to turn right out of the restaurant onto a side road,
turn right onto Cumberland Parkway, immediately move across two
lanes into the left-turn lane, make a U-turn on Cumberland
Parkway, and then continue straight to his office. To go to the Little
Apron Academy, Appellant had to make the same U-turn but then
immediately move into the left lane and turn left onto Paces Ferry
Road. Detective Stoddard testified that the time between leaving the
Chick-fil-A parking lot and making the U-turn was 30 to 40 seconds
and after the U-turn, the time for deciding whether to go straight on
Cumberland Parkway towards Home Depot or turn left onto Paces
with Leanna. When describing what happened when he put Cooper in the car
seat, Appellant said, “he’s like, he likes school,” and then Appellant said
something that is unintelligible. When Leanna was asked at trial if Appellant
told her that Cooper was excited to go to school and said “school,” she could not
remember Appellant saying that. Cooper’s teachers testified that he had
recently started talking more and having conversations.
16
Ferry Road towards Little Apron was “almost instantaneous.”21
The Chick-fil-A restaurant was 0.6 miles from Appellant’s
office building, and the drive took about four minutes. During his
interview, Appellant said that during the drive, he “probably didn’t
even hear [Cooper] because he falls asleep really easily when you
drive the car.” He told Leanna, “[Cooper] wasn’t making a sound. . . .
I think he fell asleep.” Later in their conversation, Appellant said,
“I’ve never left him [in] the car. I’ve taken him to day care a million
times cuz he loves it,” and Leanna responded, “His belly was full of
sausage biscuit and he fell asleep.”
Leanna testified that Cooper was “comfortable” in his car seat,
and it would not be unusual for him to fall asleep on the way home
from day care or church. Leanna also testified that Cooper fell asleep
quickly after eating, although the examples she gave involved
21 Detective Stoddard video-recorded his test drives. They show that it
usually took him between 30 and 50 seconds to get from the Chick-fil-A to the
U-turn lane. Depending on traffic, it took between 5 and 50 seconds to make
the U-turn. He then got to the beginning of the left turn lane around 10 seconds
after making the U-turn. The overall time from leaving the Chick-fil-A to
getting to the beginning of the left turn lane averaged a little over a minute.
17
Cooper falling asleep after lunch. Cooper’s day care teachers
testified that he was sometimes awake and sometimes asleep when
Appellant dropped him off in the mornings (which was usually
earlier than the time Appellant drove Cooper from the Chick-fil-A).
One of the teachers testified that when Cooper got Chick-fil-A
breakfast, he was “[a]wake, active, normal” when he came in. 22
Parking lot surveillance video recordings show that Appellant’s
Tucson pulled into the Home Depot building’s surface parking lot
around 9:24 a.m. Appellant drove past a parking space, backed up a
short distance, and then pulled forward into the space, coming to a
stop at 9:25 a.m. He opened his door part way 17 seconds later,
stepped out of the vehicle 16 seconds after that, and shut the door
22 Leanna testified that when Cooper started going to day care, Appellant
would text her a picture of Cooper every day after he dropped Cooper off to
show that Cooper was there safely. She explained that as a new mother, she
had trouble letting go. But once Cooper was in the toddler room and was
moving around more, she recognized that it was harder to get a picture of him,
so she told Appellant that he did not need to send the pictures anymore. One
of the day care teachers testified that she noticed that Appellant stopped
taking the pictures about two weeks before Cooper’s death, and when she
talked to Appellant about it, he said that he stopped because Cooper was
“getting older.”
18
three seconds later. Appellant then walked into his office building
carrying a Chick-fil-A cup and his work bag. The parking space that
Appellant selected had a parked car on the driver’s side and a grassy
patch on the passenger’s side; it was open at the front and back for
cars to drive by. Surveillance video from the parking lot showed that
throughout the day, various people walked or drove by the Tucson.23
(e) Appellant’s morning at work
From 9:35 to 10:59 a.m., Appellant received and sent a variety
of messages. The travel agent sent Appellant an email listing several
options for the planned family cruise; Appellant then searched
online for information about one of the cruise lines. Smith sent him
23 The Home Depot employees did not have assigned parking spaces. The
parking space Appellant chose was mostly shaded until about 10:00 a.m. One
of Appellant’s co-workers testified that the space Appellant chose on June 18
seemed to be farther into the parking lot than where she had seen him park
before, but she did not see where he parked every day. She also acknowledged
that Appellant chose a parking space where people could walk by the vehicle,
instead of one of the spaces along a tree line. The spaces along the tree line
were further from the office building. Surveillance video of the parking lot of
the day of Cooper’s death shows that these spaces were in the shade for more
of the day than the space Appellant chose. The co-worker also testified that she
had seen Appellant bring his guitar into work one day, and he told her that he
did not want to leave it in his car because heat was bad for it. Parking lot
surveillance video of Appellant walking into work with a guitar case on June
11, 2014 was played for the jury.
19
a message that she was in Hilton Head, and they had a conversation
about Hilton Head. Appellant responded to four Whisper posts,
including telling one user that he woke up at 5:30 because of his son.
When the poster asked Appellant about his son, Appellant replied,
“He’s awesome.” Floyd sent a message saying, “It’s morning, LOL.”
And Leanna sent a message asking if Appellant had gotten to work
okay. Appellant responded, “Yep, yep,” and said that he was going
to the movie and would be home close to 7:00; Leanna replied,
“Okay.”
At 11:05 a.m., Hall asked about lunch in the group chat with
Appellant, Milling, and Abdo. Appellant, Milling, and Hall went to
lunch together on most work days. Appellant initially said that he
did not want to go to lunch because he wanted to make sure he could
leave by 4:30 p.m. for the movie. After more discussion about the
benefits of going to lunch and deciding they could go to the nearby
Publix, one of their frequent lunch spots, Appellant said, “ok come
get me and Im in.” Milling and Hall testified that when they went to
lunch, either Appellant or Hall would drive because Milling had a
20
two-seat car. 24
(f) Lunch
At 11:38 a.m., Hall, with Milling as a passenger, picked up
Appellant at the front of Appellant’s office building, and they went
to Publix. Hall and Milling testified that there was nothing unusual
about Appellant’s behavior at lunch or at all that day. On the way
back from lunch, they stopped at a nearby Home Depot store so
Appellant could buy some lightbulbs. Hall then dropped Appellant
off at his Tucson and drove away.25 Parking lot surveillance video
shows that at 12:42 p.m., Appellant opened the front driver-side
door, reached inside with one arm, and tossed the bag containing the
lightbulbs (which were later found on the front passenger seat).
About two seconds later, Appellant closed the door and walked
24 Milling testified that generally when deciding who would drive each
day, “[i]t would just come up in the conversation for the day, and it would just
kind of naturally decide itself.” Milling did not find anything unusual about
Appellant saying, “Come get me.” Hall testified that there was nothing unusual
about him driving to lunch that day and that he tended to drive more often
than Appellant because it was easier to drive to the building where Appellant
worked than the building where Hall and Milling worked.
25 In his interview, Appellant did not mention his trip to the Home Depot
store or his visit to his Tucson when he described his lunchtime activities.
21
away.26
The medical examiner who performed Cooper’s autopsy
testified that if the temperature in the Tucson when Appellant
returned to the vehicle after lunch was in the low 90s, Cooper may
have still been alive at that time. An expert tested the temperature
in the Tucson parked in the same space less than three weeks after
Cooper’s death, on a day when the outside temperatures were
similar to the temperatures on June 18. The readings taken inside
the Tucson on the testing day showed that at 11:35 a.m., the
temperature on the car seat was 88 degrees Fahrenheit; at 12:30
p.m., it was 98 degrees; and at 1:00 p.m., it was 100 degrees. The
highest temperature the vehicle reached on the testing day was 125
degrees at about 3:30 p.m. 27
26The video recording was played for the jury. Detective Stoddard and a
Home Depot security manager testified that based on the video, it appears that
although Appellant slightly hunched over while tossing in the bag, he did not
put his head inside the vehicle. The video, which is in the record but is not of
good quality, appears to support this conclusion.
27 Temperature records from the nearby Dobbins Air Reserve Base
showed that at 11:58 a.m. on June 18, the outside temperature was 86 degrees,
and on the day of the test, the outside temperature was 88 degrees at that time.
Similarly, at 12:58 p.m. on June 18, the temperature was 87.8 degrees, and on
22
(g) After lunch
After lunch and the stop at the Tucson, Appellant returned to
his office cubicle, where he sent more messages to women between
1:17 p.m. and 3:04 p.m. Appellant sent a message to Floyd saying,
“Hi.” After they chatted some, Appellant asked to see her breasts,
and Floyd sent a picture. They then had some sexual conversation.
C.D. sent a message saying “Stoppppp”28 and then asked Appellant
for a Marietta lunch restaurant recommendation. They talked about
that and what Appellant was doing at work. Then Appellant asked
to see a picture of her breasts, which she sent, and Appellant replied,
“Yummy.” They exchanged a few more sexual messages over the
next 30 minutes, including Appellant asking, “When can I see your
the day of the testing, it was 88 degrees. The expert acknowledged, however,
that temperature similarities alone did not take into account other conditions,
such as where the sun or shadows fell on the day. He also explained that before
beginning testing, he drove the Tucson around in the parking lot for about 30
minutes with the air conditioning on the same setting it had been set on when
the vehicle was recovered, which he acknowledged was not necessarily the
setting Appellant had the air conditioning on in the morning when he drove
the four minutes from the Chick-fil-A to his office.
28 Presumably this was responding to the message Appellant sent the
night before, but as explained above, there was no evidence as to what that
message said.
23
p**sy.” Alexandra Swindell sent Appellant a message saying that
she was “horny” and asking, “Why can’t you come down here.”29 They
had an intermittent sexual conversation over the course of an hour.
Angela Cornett sent Appellant a message saying, “Sup.” Appellant
responded, and they continued to communicate sporadically for
about 30 minutes, with the conversation turning sexual, including
Appellant sending Cornett a picture of his erect penis and sharing
that he almost got oral sex that day but the person got scared. 30
29 Swindell, who was 23 years old at the time of trial in 2016, testified
that she started communicating with Appellant in late 2012 or early 2013.
They had sexual conversations and exchanged sexual photographs. Some time
before February 2013, Appellant drove to the college dorm where Swindell was
living, picked her up, and drove with her to a “back road.” They parked, talked,
and kissed, and Swindell performed oral sex on him. They never met again,
although Appellant told Swindell that he wanted to. Appellant did not tell her
that he was married or that he had a child, although he said that he had a
girlfriend and “eventually he said they were engaged.” On June 11, 2014,
Appellant sent Swindell a picture of his erect penis. Appellant’s messages with
Swindell beginning on May 29, 2014 were admitted into evidence. This record
includes a thumbnail-size version of the picture of Appellant’s penis that he
sent; a full-page copy of this penis picture was admitted as a separate exhibit.
30 Cornett (whose age is not indicated in the record) testified that she and
Appellant began communicating a few months before June 18. She said he gave
her “kind of a creepy feeling” and although he seemed “adamant” about
meeting up, she refused. She felt like he wanted just a “hook-up” and “sexual
favors.” Cornett testified that during their conversations, Appellant told
Cornett that he was married and indicated that “he was not unhappy,” but did
not get the sex he needed at home. He also told her that “he wanted to sleep
24
At 3:16 p.m., Appellant sent Leanna a text message that said,
“When you getting my buddy.”31 Leanna texted back about 45
minutes later, “Call me. Are you not going home first?” Leanna and
Appellant then had a phone conversation about who would be the
best person to pick up Cooper from the day care center, and she
agreed to get Cooper. 32
(h) Cooper’s death is discovered
Carrying his work bag, Appellant got into the Tucson to leave
work at 4:16 p.m. and drove away about seven seconds later.33 The
with as many different women as possible in his lifetime.” All of Appellant’s
messages with Cornett on June 18 were admitted into evidence. The picture
Appellant sent her of his penis was admitted as part of these messages, but not
as a separate, full-page exhibit, although it appears to be the same as one of
the pictures he sent to C.D., which as discussed below, was admitted into
evidence as a full-page exhibit.
31 Leanna testified that Appellant called Cooper “my buddy.”
32 Leanna testified that she was not sure if Appellant was planning to go
home before the movie, and if he was going home first, she was going to ask
him to pick up Cooper. Parents had to pick up their children at Little Apron by
6:30 p.m. each day. One of Cooper’s day care teachers testified that Leanna
usually picked up Cooper between 3:30 and almost 5:00 p.m. In her interview,
Leanna said that she arrived at Little Apron to pick up Cooper at about 4:50
p.m. that day.
33 The Home Depot security guard who was at the desk when Appellant
left testified that Appellant said that he was going to the movies with someone.
The guard thought that Appellant’s sharing this information was odd and “out
of his character.” However, other people who worked with or were friends with
25
Tucson’s windows were rolled up. Appellant told Detective Stoddard
that as he drove to the movie theater, he looked to his right to change
lanes and saw Cooper sitting in the car seat. He immediately pulled
into a parking lot, which was about two miles from the Home Depot
building, stopped the Tucson, jumped out, took Cooper out of the car
seat, and laid the child on the pavement.34 Four witnesses heard
Appellant repeatedly yell, “What have I done?” Two of them heard
him yell, “I’ve killed my son,” and another one heard him “rant,”
“She’s going to kill me.”35 That witness also saw Appellant “fumbling
Appellant described him as “a very friendly, gregarious, open kind of guy” and
a “talker” who would “insert himself into conversation.”
34 One of the officers who responded to the scene testified that Appellant
chose a “more congested” route to the movie theater. To allegedly show that
Appellant had “knowledge of the importance of having witnesses at a crime
scene to corroborate your story,” Detective Stoddard testified that on June 4,
2014, Appellant wrote, in a comment to a post online about a biker fight, that
the only reason he believed one of the bikers was “the number of witnesses that
stayed around to corroborate the story to the police.”
35 One witness testified that Appellant was “distraught visibly,” with his
demeanor changing “back and forth.” This witness also testified that he told
the district attorney’s office that Appellant’s demeanor “look[ed] like bad
acting,” but at trial he explained:
[E]verybody grieves differently. I just kind of likened it to if it were
my child, I would probably react a little differently. I’d shed tears.
I wouldn’t have put him on the – the hot asphalt on a hot day, as
hot as it was. And I probably would have been a little more
attentive. But again, everybody grieves differently.
26
around” with Cooper; the witness testified that Appellant may have
been trying to do CPR but was not doing it correctly, so he moved
Appellant out of the way and began CPR on Cooper, even though it
was almost immediately clear to him that Cooper was dead. 36
Appellant walked away from Cooper and began pacing the
parking lot while on his phone. Appellant said in his interview that
he was trying to call the Little Apron Academy so someone there
could tell Leanna where Cooper was (although Leanna had a cell
phone), but he was unable to get through. 37 At least two witnesses
called 911, and the first officers on the scene arrived at 4:24 p.m.38
The officers testified that when they arrived, Appellant was not near
On cross-examination, the witness testified that he did not know Appellant or
how he “might react to trauma.” Another witness testified that Appellant’s
“franticness” did not seem “sincere,” but when she was interviewed on July 9,
2014, and asked if “anything seem[ed] suspicious,” she said, “nothing
suspicious at all.”
36 Appellant told Detective Stoddard that he attempted CPR “just for a
few seconds” but “couldn’t compose [him]self to do it,” so someone else took
over.
37 After the officer who arrested him at the scene took his phone away,
Appellant said that he needed it to call his wife.
38 The State played two 911 calls at trial, and Appellant told Detective
Stoddard that he did not call 911 because “four people” were calling 911.
27
Cooper. When one of the officers tried to do CPR on Cooper,
Appellant came closer, and the officers “shooed him away” to
continue CPR. One of those officers testified that Appellant went
“from calm to shrieking to calm again” and “it just seemed very
random and very odd.” The other officer testified that Appellant
made a “weird scream.”39
About five minutes later, another officer responded to the
scene. She saw Appellant pacing while talking on the phone and said
that at first he “appeared kind of calm” and then started “yelling.”
She described his yelling as “unusual,” calling it “monotone yelling”
that seemed “real forced.”40 When the officer tried to speak with
Appellant, he refused to immediately answer her request for
identification, and after a verbal altercation, during which
Appellant told another officer, “Shut the f**k up, my son just died,”
39 The second officer put in his report that Appellant was “acting
hysterical and extremely upset”; he testified that he wrote “acting” to indicate
that Appellant “was not acting genuine.”
40 The officer admitted on cross-examination that she did not know
Appellant, had never heard him yell before, and did not know how he dealt
with trauma.
28
Appellant was handcuffed and put in the back of a police car. While
in the police car, Appellant remained calm, sometimes turning
around to look out the back window, which was the direction of
where Cooper was. When the officer asked Appellant what
happened, Appellant said that he had forgotten to drop off Cooper at
day care and he had forgotten to do a “second look” inside the car.
He also said, “I swore I dropped him off.”
When a crime scene technician examined the Tucson,
Appellant’s work bag was on the passenger-side floorboard and a
Home Depot bag with lightbulbs was on the passenger seat. That
technician testified that when he knelt down by Cooper, he smelled
the odor of a “hot, musty, urine-soaked diaper.” Wet areas on
Cooper’s backside indicated that he had an overfull diaper. 41
41 The technician acknowledged on cross-examination that he did not
note this smell in his report, but explained that was because the smell was
“unremarkable” to him and he does not usually note smells in his report.
Another officer testified that when he put his head inside the vehicle, he
noticed that “it smelled like . . . sweat and a diaper, and then also really had
that unusual odor that I can only associate as with something that’s dead.”
This officer testified on cross-examination that he mentioned the smell to
Detective Stoddard that night and Detective Stoddard told him to write a
report about it, but the officer then failed to write the report until a year later
29
Cooper’s autopsy showed that he died from hyperthermia. The
medical examiner testified that while dying, Cooper likely would
have experienced nausea, a headache, and anxiety, and may have
had seizures. Cooper also may have “struggled as he was becoming
more and more uncomfortable.” The medical examiner testified that
Cooper had small abrasions on his head and extremities, which he
may have gotten from rubbing or coming into contact with hot
surfaces, like hot parts of the car seat, which may have caused him
pain.
(i) Appellant’s interview and detention
Eventually, the officer who initially detained Appellant drove
him to the police station. As they drove, Appellant asked the officer
how long she had been in law enforcement. The officer testified that
this “chit chat” did not seem like what someone who had just lost a
when Detective Stoddard reminded him.
Detective Stoddard and another detective testified that when Appellant’s
vehicle was being processed, “hours” after Cooper was found, they smelled an
odor that they “associate with death.” The other detective testified on cross-
examination that he did not mention the smell in a report until about a year
later, after having a conversation with Detective Stoddard and another
detective.
30
child would do, and it made her uncomfortable. When they arrived
at the police station, Appellant again tried to engage her in what she
described as “casual conversation,” commenting that the handcuffs
she used were different from the ones he had seen when working for
the police in Alabama.42
Appellant was then interviewed by Detective Stoddard and
another detective for about an hour and a half. While waiting to be
interviewed, Appellant was video recorded alone in the interview
room for about 14 minutes. For most of this time, Appellant
remained calm, interspersed with brief periods of crying, yelling, or
labored breathing. Eventually, Appellant began to cry and yell more,
saying things like, “Oh, god,” “My boy,” and “Why?” During his
interview, Appellant remained calm, appearing to tear up
occasionally when talking about Cooper.43 He told the detectives
42 Leanna testified that Appellant had worked at the Tuscaloosa Police
Department for about three years. Appellant’s brother testified that Appellant
worked as a dispatcher.
43 Detective Stoddard testified on cross-examination that he did not
believe that Appellant was being genuine during “episodes” when Appellant
was “yelling and screaming,” and explained that if he had seen “tears coming
31
that his relationship with Leanna was good, aside from the typical
marital “ups and downs.” He also recounted his day, providing the
details discussed above. He said that his forgetting about Cooper
was an accident.
Appellant also said that he was aware of the danger of leaving
a child in a hot car because he had seen “a news report about a guy
who did this.” Appellant explained that the man is now “an advocate
for when you park, you turn around and look again, and I’ve been
doing that because the [] worst fear for me is to leave my son in a
hot car.” Appellant also said that he watched a video online of a
veterinarian describing how hot the inside of a car gets on a summer
day. Appellant said that when he watched that video, he thought of
how terrible it would be if his child were in the car. 44 Appellant also
of out [Appellant’s] eyes” or his “nose start[ing] to run,” that he would have
been more likely to believe that Appellant was having a genuine emotional
outburst.
44 Appellant’s electronic records showed that he viewed this video, which
was posted on Reddit, five days before Cooper’s death. Detective Stoddard
explained at trial that Reddit is “a social site where people can post articles
and comment on those articles.” Although the video was accessed twice within
one second, both the State’s and Appellant’s computer experts explained that
this does not necessarily mean that Appellant watched the video, which was a
little over five minutes long, twice.
32
knew of a K9 officer in Alabama who left his dog in the car for ten
minutes, and the “dog died of heat exhaustion immediately almost.”
Leanna, who had been met by two police officers at Little Apron
Academy, was brought to the police station to be interviewed. She
told the officers that leaving Cooper in the car was a “big fear” of
hers, noting that she had heard about it on the news. She testified
that she had talked to Appellant about the danger at some point,
and she and Appellant had seen a public service announcement for
the “Look Again” campaign on the morning news. 45
Shortly after Appellant’s interview ended, Detective Stoddard
told Appellant that he was being arrested for felony murder and
cruelty to children. Appellant said that he did not understand why
because he had said that it was an accident. 46 Appellant was then
45 Appellant’s email records showed that on January 30, 2013, Leanna
sent him an email with the subject line “Don’t be this dad” that had a link that
appears to be for a news story from “My Fox Atlanta” with the title “NY Dad
Forgets Baby in Car for 8 Hours on Cold Day.” And Appellant received two
emails from “Quality Care for Children” on this topic: one on April 17, 2014,
with the subject line “Look Again!” and a message about the danger of leaving
a child unattended in a vehicle, and one on May 13 about a two-year-old girl
who died in Georgia after being locked in her mother’s car.
46 A second detective who had been brought into the room to witness
33
taken to a holding cell, where he spoke to a man who was finishing
a 24-hour DUI sentence. The man testified that Appellant’s
demeanor and conversation did not seem consistent with someone
who had just lost a child: Appellant seemed “pretty calm and
nonchalant” and did not seem sad or upset.47
Appellant was then allowed to talk to Leanna in an interview
room. 48 He was crying and told her that “it was an accident.”
Appellant said that he was comforted by the fact that Cooper was in
heaven and that even if he could, he would not bring Cooper back
because “he’s in Heaven and his time on earth is done.” At the end
of their 43-minute conversation, Detective Stoddard came in and
talked to Appellant about the next steps of Appellant going to jail.
Appellant asked Detective Stoddard how long he had been in law
enforcement. Leanna testified that she thought the question was
Detective Stoddard informing Appellant of his charges testified that Appellant
used the phrase “malicious intent,” which the detective found suspicious.
47 The man also testified that he told his story about interacting with
Appellant to the National Enquirer for $2,000. On cross-examination, he
acknowledged that he did not know Appellant or how Appellant “handles stress
and tragedy.”
48 As noted in footnote 10 above, this conversation was video-recorded
and played for the jury.
34
inappropriate at the time but also thought, “That’s very typical
Ross.”
(j) Appellant’s online activity
After Appellant was arrested, the online activity on his cell
phone and personal and work computers was searched, showing the
activity discussed above as well as the following. On April 28, 2014,
Hall said in the group chat with Appellant, Milling, and Abdo, “so
r/childfree exists” and “it’s the r/atheism of not having kids.” 49
Appellant went to the website and about three minutes after Hall’s
messages, responded in the chat, “grossness.” Over the next seven
minutes, he clicked on three articles in the subreddit, one about a
woman who posted an ultrasound of her IUD (intrauterine device),
one about a woman returning from prison, and one about a blind
person having difficulty dating.
The State’s computer expert also testified that Appellant
searched “how to survive in prison,” but Appellant’s expert testified
49 Hall was referring to two “subreddits” – “childfree” and “atheism.” A
subreddit is a Reddit page dedicated to a specific topic. See “Subreddit,”
https://www.dictionary.com/e/slang/subreddit/ (published Nov. 21, 2018).
35
that Appellant actually searched “what is prison really like” and he
made this search around the same time he told one of his friends
that he was just finishing watching a season of Orange is the New
Black, a Netflix show set in a prison. The State’s expert also testified
that Appellant cleared his Chrome browser cache on June 6, 2014,
but had not cleared his Firefox browser cache. The State’s expert
testified that this was “extremely suspicious.” Appellant’s computer
expert disagreed; he and two of Appellant’s web development co-
workers testified that Chrome is frequently used for web
development and that clearing that browser’s cache is standard
practice to see if a website change has been effective.50 Appellant’s
computer expert also testified that Appellant did not search for what
temperature it takes for a child to die in a hot car or “anything like
that,” and the State’s computer expert testified that Appellant did
not search “hot car.” Detective Stoddard also testified that Appellant
50 One of Appellant’s co-workers explained that the best practice is to test
sites in multiple browsers, including Firefox, but acknowledged that checking
only in Chrome “happens a lot.”
36
did not do any “hot car searches.”51
(k) Appellant’s online sexual communications with C.D.
As noted in footnote 7 above, Appellant began communicating
online with C.D., initially through Whisper, in the fall of 2013, when
she was 16 years old. 52 C.D. testified that she told Appellant her age
“pretty soon” after they began communicating, and their
conversation was “generally sexual.” C.D. testified that Appellant
51 The State’s computer expert also testified “as far back as April 21,
2014,” Appellant had been visiting the website for Griffin Psychology, a site
that dealt with “interviewing of witnesses, jury selection, forensic evaluations,”
and on May 9, 2014, Appellant had looked at a “divorce/legal separation
checklist” webpage on Home Depot’s site, which came up when Appellant
searched “name change.” On cross-examination, the State’s expert admitted
that he did not know that Appellant was a web developer for Griffin
Psychology. And when Appellant’s computer expert testified, emails from
February 2013 and May 2014 between Appellant and one of the owners of
Griffin Psychology about web development work that Appellant was doing for
Griffin Psychology and a chat message that Appellant sent to the group chat
with Milling, Hall, and Abdo on May 12 saying that he got his Home Depot
email address changed were admitted into evidence. Appellant’s expert also
testified that Appellant did not do any searches about divorce, and Leanna and
Appellant’s friends and co-workers testified that Appellant went by “Ross,” but
his Home Depot email address used the name “Justin.”
52 When C.D. testified at Appellant’s trial, the second question the
prosecutor asked (after asking her name) was how old she was; the sixth
question was what grade she was in when she began communicating with
Appellant; and the tenth question was how old she was at that time. The
prosecution later asked what C.D.’s birthday was. C.D. turned 17 in May 2014.
The record of the messages between Appellant and C.D. also shows that they
exchanged messages about C.D.’s high school classes and prom.
37
asked for pictures of her vagina “countless” times, and the record of
his messages with her shows that he sent messages such as “I da[r]e
you to show me your p**sy,” and “I want to see it tonight and after
you shave” on December 9, 2013; “I want to see your p**sy” on
December 30, 2013; “I need to see your p**sy” on February 4, 2014;
“I want to see your hot wet p**sy” on February 28; “P**sy? PLEASE
PLEASE PLEASE” on March 7; and, as noted above, “When can I
see your p**sy” on the afternoon of June 18. C.D. refused to provide
any pictures of her vagina, but between March 6 and June 15,
Appellant sent her five pictures of his erect penis.
Appellant also sent C.D. messages in which he described
proposed sexual encounters in graphic detail, including: “Stroking
and licking up and down my big dick,” “Even if you say no,” and “I’m
going to put my dick in all of your holes” on February 9, 2014; “I
want to f**k you, cum on your face/mouth, and make you feel like a
c**k whore” on February 11; and “I really want you to taste my dick”
on May 13. Although they never met, on May 29, they discussed the
possibility of Appellant being C.D.’s “first blow job,” and Appellant
38
suggested, “Next week,” “Meet me and suck me in my car?” During
this conversation, Appellant also instructed C.D., “put your finger
down your throat” and “Imagine my dick back there.” And on June
11, he sent her a picture of his erect penis and the message, “Wanna
suck it?”
During their communications, Appellant also told C.D. that he
loved his wife and would never leave her but was unhappy with
parts of their relationship. C.D. testified that Appellant sometimes
talked about Cooper, always “in good ways,” saying that Cooper “was
smart and things like that,” and he sent her a picture of Cooper from
their family vacation about three weeks before Cooper’s death. 53
(l) Appellant’s other extramarital sexual activities
In addition to the many sexual messages and the sexual
conduct discussed above, the State presented evidence that
53 A record of Appellant’s messages with C.D. beginning December 9,
2013, which contained only Appellant’s side of the conversation until February
28, 2014, was admitted into evidence. This record includes thumbnail-size
versions of the five pictures of Appellant’s penis that he sent; full-page versions
of the penis pictures were also introduced as five separate exhibits and were
shown to the jury during C.D.’s testimony.
39
Appellant engaged in a substantial number of sexual conversations
and one instance of sexual conduct with other Whisper users in the
years before Cooper’s death. In addition to C.D., Smith, Meadows,
Floyd, Swindell, and Cornett (see the previous subdivision and
footnotes 7, 8, 11, 12, 29, and 30 and accompanying text above),
three of these other users testified.
M.B. testified that she was 15 years old in May 2014 when
Appellant replied to her post on Whisper that said, “I love older
guys.” M.B. initially told Appellant that she was 18 years old, and
Appellant sent her a picture of his erect penis. After brief further
conversation, M.B. told Appellant that she was actually 15 years old,
but Appellant did not stop the sexual conversation. Instead, he
responded, “That’s a nice p**sy for 15” and “Make me a naughty
older g[u]y.” He then sent messages that said, “I’d love you to suck
my dick” and “I want to use your p**sy and stretch you out.” He did
not mention that he had a wife or son. 54
54All of Appellant’s conversation with M.B. happened on May 29, 2014.
Their full conversation was admitted into evidence, including a thumbnail-size
40
Molly Sims, who was 18 years old when she started
communicating with Appellant around June 2012, testified about
having sexual conversations and exchanging sexual pictures with
him. Sims testified that Appellant asked to meet her a few times,
but they never did. Appellant told her that he was married but
would talk to and meet other women and that he had been caught
cheating. 55
Jacqueline Robledo, who was 19 years old when she began
communicating with Appellant in the summer of 2013, testified that
their conversations “immediately went sexual[],” including
exchanging sexual pictures. Later in the summer, they met at
Appellant’s home and had sex. They did not meet again, although
they continued to talk online and Appellant continued to ask her to
meet. Appellant also told her in February 2014 that when he was on
vacation, he used Whisper to meet up with a man and “had relations
version of the picture of Appellant’s penis that he sent; a full-page version of
that penis picture was also admitted as a separate exhibit.
55 A record of Appellant’s conversation with Sims beginning on December
10, 2013 and ending on June 11, 2014 was admitted into evidence.
41
with him.” Robledo testified that “as far as [she] knew,” Appellant
“loved his wife and wanted to be with her” and “loved his son.” On
April 2, Robledo asked how Appellant’s “little son” was, and
Appellant responded “The best ever!!!!” and sent a picture of Cooper.
When Robledo called Cooper adorable, Appellant responded, “He’s
the best.” Robledo testified that Appellant never said anything “ugly
or negative” about Cooper.56
Beyond these nine witnesses, Detective Stoddard testified
about additional sexual conversations Appellant had with 21
Whisper users who did not testify, and records of all of those
conversations were admitted into evidence. The dates of the
conversations ranged from December 2013 to June 2014. Appellant
sent messages to some users about his desire to have sex, including,
“I’m addicted to using sex with strangers to make me sane” to one
user and “I am a church guitar player, but I can lead somewhat of a
56Appellant’s messages with Robledo beginning December 11, 2013, with
only Appellant’s messages until January 29, 2014, were admitted into
evidence. This record includes a thumbnail-size version of a picture of his erect
penis that Appellant sent Robledo on April 14, 2014. Their last message was
exchanged on June 15.
42
double life” and “I’m to naughty for my own good” to another. He
sent other users messages expressing unhappiness with being
married, including “Get a divorce. I might” because “I’m a cheater”
and “I’m addicted to sex”; “I miss being single” and “I just want to
f**k a lot of girls, drink a lot, and have fun”; “My bad side wants to
be single sometimes”; “I hate being married sometimes too” and “I’ve
started cheating”; and “Sometimes being taken sucks” “Because I
enjoy sex with different people.”
In three other conversations, Appellant indicated that his child
was the reason he stayed married. On December 25, 2013, Appellant
told one user, “I cheat” “A lot”; when she asked why he did not get
divorced, he answered “Kid” “And it’s just sex.” On January 25, 2014,
when one Whisper user said, “My husband and I both know we
aren’t in love, but for me I stick it out for my kids,” Appellant
responded, “You’re in my situation,” and said his “situation” was
“Married, 1 kid, fell for another girl, now I’m addicted to sex.” Later
in the conversation, Appellant said that he had “sex with four girls
in the last year,” and the user asked why Appellant didn’t get
43
divorced. Appellant answered, “Kid.” “It’s the glue holding it
together,” adding, “my secret sex addiction is real.” Finally, he told
another user on March 24, 2014, “My wife should divorce me and
has no idea, but kids.”
Two of the additional conversations read by Detective Stoddard
were with Whisper users who told Appellant that they were
underage girls. On January 25, 2014, Appellant sent a message to
someone saying that he was “horny” and suggesting that she give
him oral sex. After this user said that she was 14 years old, he told
her that he did not want to go to jail and then ended the
conversation, saying “I’m looking to get my dick sucked and you can’t
do it.” On February 3, Appellant sent a message to a user who said
she was 17 years old saying that he would pay her $50 for oral sex.
They then discussed the possibility of Appellant coming to her high
school during her lunch so she could give him oral sex in his car. He
also discussed other sexual fantasies and they exchanged sexual
pictures, including a picture of his erect penis. When the Whisper
user told him that she “live[s] two lives,” Appellant responded, “I
44
have two lives too.”
Detective Stoddard also testified that Appellant had done “800-
some searches” for “escort services or things like that,” including
looking at Craigslist, Backpage, and “multiple porn sites.” In May
2014, Appellant hired a prostitute for sex three times. The woman
Appellant hired testified that he did not show any nervousness when
they met in a hotel room for sex. Messages between Appellant and
Leanna showed that during one of the encounters, Leanna asked
Appellant to come home because she and Cooper missed him, but he
said that he was helping his friend move.
Leanna testified that she had not been aware of most of this
activity, although Appellant had admitted to her in 2008 that he had
a “problem with pornography,” and two years later she had found a
message on his phone saying something like “show me your boobs.”
As a result of these revelations, Appellant asked his friend to be an
“accountability partner” and help monitor his visits to pornography
websites, and Appellant and Leanna spoke with their pastor and
went to therapy for a time. They resumed therapy again in
45
December 2012 or January 2013, when Leanna discovered
Appellant watching pornography, and in late summer or early fall
2013, when Leanna saw a message from a woman on his phone
calling him “hon” or “babe.”
(m) Appellant’s defense
The State argued that Appellant intentionally and maliciously
left Cooper to die in the Tucson because Appellant wanted to live a
child-free life, divorce Leanna, and pursue his “double life” of having
sexual relationships with many women. In response, Appellant
argued that his leaving Cooper in the Tucson was an accident.
Leanna, Cooper’s day care teachers, and several of Appellant’s and
Leanna’s family members and friends testified that Appellant was a
loving, caring, and involved father to Cooper. There was no evidence
that Appellant had previously abused Cooper in any way.
Dr. Gene Brewer, an expert in human memory systems,
testified for Appellant as follows. “Prospective memory” is the type
of memory that allows a person to remember what they are going to
do next. If a “prospective memory goal” is counter to “routine
46
behavior, periodically people will lapse into that routine behavior,”
which “will cause them to forget their prospective memory goal.”
Prospective memory can fail when people are distracted, such as by
fatigue, stress, or external events. This memory failure can happen
in a “matter of seconds,” certainly less than 40 seconds. When an
intention is important, people tend to “remember to do it more,” but
even in cases with serious and tragic consequences, prospective
memory failure is “still something that happens.” Similarly, people
who are “smarter” are less likely to forget, but “[t]hat in no way
makes them immune to forgetting.” 57
Once a prospective memory failure happens, certain “cues” can
trigger a person to remember, such as hearing the child. However,
some things, such as seeing a picture of a forgotten child, would not
be effective cues because they do not signal to the person that
anything is different from the usual day (when the child would be in
day care) and the person may have a “false memory” of dropping off
57 Dr. Brewer testified that Appellant “would classify as an intelligent
person,” noting that Appellant went to college and “was able to get gainful
employment . . . doing some kind of programming.”
47
the child. False memories happen because when a person does
something day after day, it may be difficult to determine if the
memory of doing it is from a specific day. Based on Appellant’s late
night and early morning messages and information that he had been
frustrated with a project at work, Appellant may have been tired
and experiencing work stress on the day of Cooper’s death. And
difficult traffic maneuvers, such as the U-turn that Appellant had to
make after leaving the Chick-fil-A, can be an external distraction
that leads to memory failure.
On cross-examination, Dr. Brewer acknowledged that he had
not seen a case of a child forgotten in a car with the same
characteristics as this case, but he explained that he studied
memory failures generally, rather than focusing on cases of
forgotten children. Dr. Brewer also acknowledged that there could
have been potential cues to trigger Appellant’s memory, including
his having only a Chick-fil-A drink rather than food plus a drink
(which he would usually have if he went through the drive-through
after dropping off Cooper); Appellant’s responding to Leanna’s
48
message about Cooper; and Appellant’s going back to the Tucson
after lunch. On redirect examination, however, Dr. Brewer testified
that these may not have been effective cues for Appellant,
explaining: “I can’t find a single experience that I know that
[Appellant] had that day that signaled to him that something was
different, unique, or weird about the situation.”
2. The constitutional sufficiency of the evidence
Appellant first argues that the evidence presented at his trial
was insufficient as a matter of federal constitutional law under
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979),
to support his convictions for malice murder and cruelty to
children. 58 In considering this claim, “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.” Id. at
58 Appellant’s counsel did not argue at trial that Appellant was not guilty
of the crimes against C.D., and on appeal, Appellant does not dispute the
sufficiency of the evidence proving those three counts, nor does he challenge
those convictions on other grounds. The evidence as to those crimes was
overwhelming. Accordingly, we affirm those convictions.
49
319. Thus, in contrast to the harmless-error analysis that we
conduct in Division 5 below, “[i]n evaluating this [legal sufficiency]
claim, we view the evidence in the light most favorable to the
verdicts, leaving the resolution of questions about conflicting
evidence, the credibility of witnesses, or the weight of the
evidence . . . to the discretion of the trier of fact.” Heard v. State, 309
Ga. 76, 82 (844 SE2d 791) (2020) (punctuation and citation omitted).
Appellant was charged with malice murder in violation of
OCGA § 16-5-1 (a) for causing the death of Cooper with “malice
aforethought,” and with first-degree child cruelty in violation of
OCGA § 16-5-70 (b) for “maliciously” causing Cooper “cruel and
excessive physical pain.” It was undisputed that Appellant left
Cooper strapped into a car seat in the Tucson and that the heat in
the vehicle over the course of the day caused the child’s death. And
the medical examiner testified without dispute that as Cooper died,
he likely would have experienced nausea, a headache, and anxiety;
may have had seizures; and may have experienced pain from
rubbing against or coming in contact with hot surfaces in the
50
Tucson.
The only real disputed issue was whether Appellant
intentionally and maliciously left his child to suffer that painful
death, as the State argued, or whether Cooper’s death was
accidental, as Appellant claimed. See OCGA § 16-2-2 (“A person
shall not be found guilty of any crime committed by misfortune or
accident where it satisfactorily appears there was no criminal
scheme or undertaking, intention, or criminal negligence.”).
Appellant contends that there was insufficient evidence to support
the State’s theory. As discussed in more detail in Division 5 below,
the evidence showing Appellant’s malicious intent was far from
overwhelming. But when viewed in the light most favorable to the
verdicts, the evidence recounted in Division 1 above was legally
sufficient for a rational jury to conclude that Appellant maliciously
left Cooper to die.
Regardless of Appellant’s motive, which was not an element of
the crimes, see Smart v. State, 299 Ga. 414, 418 (788 SE2d 442)
(2016), the jury could have concluded that Appellant did not forget
51
that Cooper was in the Tucson in the short time between leaving the
Chick-fil-A and arriving at work – particularly given the proximity
of the car seat to Appellant’s driver seat and resolving against
Appellant the disputed evidence about Cooper’s being awake and his
head being visible above the car seat. Among other things, the jury
could have found suspect Appellant’s 30-second delay in the vehicle
after parking at his office; his visit to the Tucson after lunch (a visit
he did not mention in his interview with Detective Stoddard); his
failure to see or smell Cooper in the vehicle when Appellant returned
to the Tucson after work; and his reactions after discovering that
Cooper was dead, which several witnesses described as “very odd” or
“forced.” Thus, the evidence was legally sufficient to support
Appellant’s convictions for the crimes against Cooper. See Finney v.
State, 311 Ga. 1, 14 (855 SE2d 578) (2021) (concluding that the
evidence was “legally sufficient when all of the evidence is viewed in
the light most favorable to the prosecution,” even though “the
properly admitted evidence was far from overwhelming”); Strong v.
State, 309 Ga. 295, 300, 317 (845 SE2d 653) (2020) (concluding that
52
the evidence was sufficient as a constitutional matter to support the
appellant’s conviction for felony murder, even though “the evidence
that [he] did not act in self-defense was not overwhelming”); Heard,
309 Ga. at 82-83 (holding that although the evidence that the
appellant participated in the crimes for which he was convicted was
“not strong,” it was constitutionally sufficient); Boring v. State, 289
Ga. 429, 432 (711 SE2d 634) (2011) (“[T]he evidence, while far from
overwhelming, was sufficient to enable a rational trier of fact to
conclude beyond a reasonable doubt that appellant was guilty of the
crimes of which she was convicted.”).
3. The admission of the evidence of extramarital sexual
activities
Appellant next argues that the trial court abused its discretion
by admitting the extensive evidence of his extramarital and
sometimes illegal sexual activities recounted in Division 1 above.
Some of the evidence that we will discuss in this division was clearly
admissible to prove the three alleged crimes involving C.D.,
including evidence of her age and Appellant’s sexual messages with
53
her. And other evidence, particularly the sexual messages with
other minors, may have been admissible for that purpose. However,
as discussed further in Division 4 below, the trial court ruled that
all of the evidence of Appellant’s sexual activities was admissible to
prove the charged crimes against Cooper, and that determination
led to the court’s denial of Appellant’s motion to sever the counts
involving C.D. Accordingly, in this division we will consider only
whether the evidence of Appellant’s sexual activities was admissible
as to the alleged crimes against Cooper.
As we will explain, the messages that Appellant exchanged on
the day of Cooper’s death were relevant and admissible as intrinsic
evidence. However, even assuming that all of the evidence of sexual
activity was relevant to show Appellant’s motive, the trial court
should have excluded much of this evidence under OCGA § 24-4-403
(“Rule 403”) as needlessly cumulative and prejudicial and three
entire categories of evidence as highly and unfairly prejudicial: the
evidence that Appellant exchanged sexual communications with
four minors; the nine full-page pictures of Appellant’s erect penis
54
that he sent to girls and women; and the evidence that Appellant
hired a prostitute for sex three times.
(a) Applicable law
As provided by OCGA § 24-4-401 (“Rule 401”), “relevant
evidence” is evidence that has “any tendency to make the existence
of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” The test for relevance is “‘generally a liberal one,’” Mattei
v. State, 307 Ga. 300, 304 (835 SE2d 623) (2019) (citation omitted),
and “[r]elevance is a binary concept – evidence is relevant or it is
not,” Olds v. State, 299 Ga. 65, 75 (786 SE2d 633) (2016).
OCGA § 24-4-402 says: “All relevant evidence shall be
admissible, except as limited by constitutional requirements or as
otherwise provided by law or by other rules . . . . Evidence which is
not relevant shall not be admissible.” One of those limiting rules is
Rule 403, which says:
Relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury
55
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
We have explained that “‘the exclusion of evidence under Rule 403
is an extraordinary remedy which should be used only sparingly,’”
but also that “‘[t]he major function of Rule 403 is to exclude matter
of scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect.’” Flowers v. State, 307 Ga. 618, 622-
623 (837 SE2d 824) (2020) (citation omitted).
“‘The probative value of evidence is a combination of its logical
force to prove a point and the need at trial for evidence on that
point.’” Armstrong v. State, 310 Ga. 598, 603 (852 SE2d 824) (2020)
(citation omitted).
Generally speaking, the greater the tendency to make the
existence of a fact more or less probable, the greater the
probative value. 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.
56
Olds, 299 Ga. at 75-76 (citation and footnote omitted). “‘If the
evidence offered is cumulative of other evidence already admitted,
its probative value is limited to the additional strength it gives the
point already made.’” Id. at 76 n.15 (citation omitted).
As to the consideration of prejudice under Rule 403, this Court
has explained that “in a criminal trial, inculpatory evidence is
inherently prejudicial; ‘it is only when unfair prejudice substantially
outweighs probative value that the rule permits exclusion.’” Anglin
v. State, 302 Ga. 333, 337 (806 SE2d 573) (2017) (emphasis in
original; citation omitted). “Rule 403’s term ‘unfair prejudice’ speaks
to the capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on an improper basis rather than on
proof specific to the offense charged.” Old Chief v. United States, 519
U.S. 172 (117 SCt 644, 136 LE2d 574) (1997).
Finally, OCGA § 24-4-404 (b) (“Rule 404 (b)”) says in relevant
part:
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
57
admissible for other purposes, including, but not limited
to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
Evidence is admissible under Rule 404 (b) only if the proponent of
the evidence shows:
(1) that the evidence is relevant to an issue in the case
other than the defendant’s character; (2) that the
probative value of the evidence is not substantially
outweighed by its undue prejudice; and (3) that there is
sufficient proof for a jury to find by a preponderance of the
evidence that the defendant committed the other act.
Strong, 309 Ga. at 300.
Rule 404 (b) is not applicable to “intrinsic” evidence. See Heade
v. State, 312 Ga. 19, 28 (860 SE2d 509) (2021). Intrinsic evidence is
evidence that “aris[es] from the same transaction or series of
transactions as the charged offense,” is “necessary to complete the
story of the crime,” or is “inextricably intertwined with the evidence
regarding the charged offense.” Middlebrooks v. State, 310 Ga. 748,
750 (854 SE2d 503) (2021) (citation and punctuation omitted).
Evidence may be intrinsic if it “pertain[s] to the chain of events
explaining the context, motive, and set-up of the crime” and “is
58
linked in time and circumstances with the charged crime, or forms
an integral and natural part of an account of the crime.” Id. (citation
and punctuation omitted). “Intrinsic evidence remains admissible
‘even if it incidentally places [the defendant’s] character at issue,’”
Williams v. State, 302 Ga. 474, 486 (807 SE2d 350) (2017), but
“intrinsic evidence must satisfy Rule 403,” Middlebrooks, 310 Ga. at
751.
Because each of these Georgia evidence rules is modeled on its
counterpart in the Federal Rules of Evidence, we may look to federal
appellate precedents interpreting the pertinent federal rule for
guidance in applying the state provision. See Heard, 309 Ga. at 85.
This Court reviews the trial court’s application of each of these
evidence rules for an abuse of discretion. See Middlebrooks, 310 Ga.
at 751; Flowers, 307 Ga. at 621. We note in particular that while the
“‘application of the Rule 403 test is a matter committed principally
to the discretion of the trial courts,’” Flowers, 307 Ga. at 622 (citation
omitted), that discretion is not unbounded, and appellate courts do
not defer to it so much as to never conclude that the admission of
59
evidence was erroneous. See, e.g., Merritt v. State, 311 Ga. 875, 881
(860 SE2d 455) (2021) (holding that the trial court abused its
discretion under Rule 403 by allowing the State to question a
defense witness about a prior unconfirmed allegation of sexual
battery against his patients); Strong, 309 Ga. at 310-312 (holding
that the trial court abused its discretion under Rule 403 by
admitting evidence of prior violent acts to show the appellant’s
intent); Ragan v. State, 299 Ga. 828, 832 (792 SE2d 342) (2016)
(holding that the trial court abused its discretion under Rule 403 by
admitting, through the testimony of the murder victim’s husband,
five in-life photographs of the victim, some with her children); Hood
v. State, 299 Ga. 95, 105 (786 SE2d 648) (2016) (holding that the
trial court abused its discretion under Rule 403 by admitting
testimony from two witnesses about the appellant’s past drug deals).
(b) The trial court’s rulings
In pretrial proceedings, Appellant objected to the admission of
the sexual-activities evidence as irrelevant under Rule 401, not
offered for a proper purpose under Rule 404 (b), and not admissible
60
under Rule 403. The trial court, however, ruled that, with one
limited exception, all of the evidence of Appellant’s sexual activities
was intrinsic evidence of the crimes against Cooper or, in the
alternative, was admissible under OCGA § 24-4-404 (b) to show the
“circumstances immediately surrounding the charged crime,”
knowledge, absence of mistake, absence of accident, and motive. 59
The court further concluded that the probative value of this evidence
was not substantially outweighed by unfair prejudice. At trial,
Appellant again objected to the admission of the evidence, but the
objections were overruled. The court did not give the jury any
limiting instruction when the evidence was introduced or in the final
jury charge. 60 In denying Appellant’s motion for new trial, the trial
59 The only evidence that the trial court excluded was “any evidence of
pornography that is not admissible for any of the” proposed Rule 404 (b)
purposes and “serves only to show [Appellant’s] bad character.”
60 Although Appellant initially requested that a limiting instruction be
given as part of the final jury instructions, the trial court withheld ruling on
that request, and counsel for Appellant and the State later consulted and
agreed that such an instruction need not be given, which was legally correct to
the extent the evidence was intrinsic. See Anderson v. State, 313 Ga. 178, 183
(869 SE2d 401) (2022) (“[A] limiting instruction generally is not warranted for
intrinsic evidence[.]”).
61
court concluded that it correctly admitted the evidence as intrinsic
or under Rule 404 (b) to show motive and rebut accident.
In this Court, Appellant again argues that all the evidence of
his sexual activities was irrelevant and, even if relevant, should
have been excluded under Rule 403 and Rule 404 (b). 61
(c) Rule 404 (b)
As noted above, the trial court concluded that all of the sexual-
activities evidence was intrinsic and, alternatively, that all of that
evidence was admissible under Rule 404 (b). The evidence could not
be both. See Clark v. State, 306 Ga. 367, 374 (829 SE2d 306) (2019)
(explaining that “[b]ecause the evidence was intrinsic, it was outside
the reach of Rule 404 (b)”). Indeed, the first purpose that the court
listed as an appropriate Rule 404 (b) purpose for the evidence – the
“circumstances immediately surrounding the charged crime” – is not
a purpose enumerated in Rule 404 (b) and, more significantly,
overlaps substantially with intrinsic evidence that is admissible
61 We note that Appellant does not dispute the admission of other
message records, such as his Google chat logs with Milling, Hall, and Abdo.
62
because it is “linked in time and circumstances with the charged
crime.” Middlebrooks, 310 Ga. at 750.
The trial court also clearly abused its discretion in admitting
the sexual-activities evidence to show Appellant’s intent, absence of
mistake or accident, and knowledge, as indicated by the State’s
failure to defend these purposes on appeal. The evidence was not
relevant to show intent, because the intent required for the alleged
crimes against Cooper was different than Appellant’s intent when
he sent sexual messages and engaged in sexual conduct. See Strong,
309 Ga. at 309 (“‘[T]he relevance of other acts evidence offered to
show intent is established when the [other] act was committed with
the same state of mind as [a] charged crime.’” (citation omitted)). For
the same reason, absence of mistake or accident, which in this case
is essentially another way of addressing Appellant’s intent (that is,
whether Cooper’s death was the result of intentional acts or a
mistake or accident), was not a proper purpose. See Naples v. State,
308 Ga. 43, 52 n.9 (838 SE2d 780) (2020) (“[C]onsiderations of
‘intent’ and ‘lack of mistake or accident’ overlap to a significant
63
degree in this case.”). And Appellant’s sexual activities gave no
indication that he had any knowledge related to how to kill a child
by leaving the child in a hot vehicle. See Rouzan v. State, 308 Ga.
894, 899 (843 SE2d 814) (2020) (explaining that “knowledge” in Rule
404 (b) generally refers to specialized knowledge, such as
safecracking, or to “specific knowledge based on past experience”).
That leaves only the Rule 404 (b) purpose of showing
Appellant’s motive for leaving Cooper to die in a hot car. Sometimes
motive evidence is closely linked to the charged crimes in time and
circumstances and constitutes intrinsic evidence; other motive
evidence, such as acts committed further in time from the charged
crimes, may be admitted as extrinsic acts under Rule 404 (b). See,
e.g., Middlebrooks, 310 Ga. at 750 (treating evidence of the
appellant’s motive as intrinsic); Worthen v. State, 306 Ga. 600, 604-
605 (832 SE2d 335) (2019) (considering evidence of motive under
Rule 404 (b)). Cf. West, 305 Ga. 467, 473 n.6 (discussing the similar
treatment of attempts to threaten or influence a witness). But
whether addressed under Rule 404 (b) or as intrinsic, the State must
64
prove that Appellant committed the other acts alleged (which he
does not dispute was done here), that the evidence is relevant under
Rule 401, and that the evidence satisfies Rule 403.
Thus, we need not decide whether some of the sexual-activities
evidence offered to prove Appellant’s motive (which is discussed in
subdivision (e) below) would be better analyzed as intrinsic motive
evidence or as Rule 404 (b) motive evidence. See Flowers, 307 Ga. at
622 n.6 (declining to decide whether the motive evidence at issue
was better treated as intrinsic evidence or as other-acts evidence
governed by Rule 404 (b)). We also need not decide which messages
should be construed as “other crimes, wrongs, or acts” within the
meaning of Rule 404 (b). Cf. Early v. State, Case No. S22A0265, 2022
WL 1309033, *3 n.3 (Ga. decided May 3, 2022) (explaining that when
a video recorded inside a jail, introduced to show a statement that
the defendant had made, included “no reference to a specific
derogatory other act,” Rule 404 (b) did not apply).
(d) Sexual-activities evidence as intrinsic evidence
We consider first the sexual messages that Appellant
65
exchanged on the day of Cooper’s death and other evidence that may
have provided context for those messages or was otherwise an
integral and natural part of the story of that day.
(i) Sexual messages that Appellant exchanged on the day of
Cooper’s death
Evidence regarding the sexual – and the non-sexual –
messages that Appellant sent and received beginning at 12:14 a.m.
on June 18, 2014 and continuing throughout the day was necessary
to complete the story of the charged offenses related to Cooper. The
messages were closely linked in time to Cooper’s death and helped
to show Appellant’s activities and state of mind both shortly before
he left Cooper in the Tucson and while Cooper was dying or already
dead there. Evidence of Appellant’s online activities that day was
thus an integral and natural part of the account of that day and was
relevant as intrinsic to the charged crimes related to Cooper. See,
e.g., Keller v. State, 308 Ga. 492, 505 (842 SE2d 22) (2020) (“Keller’s
behavior a few hours before he inflicted [the child’s] fatal injuries –
arguing with [the child’s mother] regarding his treatment of the
66
murder victim and resorting to physical violence – ‘plainly pertained
to the chain of events in the case and was linked by time and
circumstance with the charged crimes, making the information
necessary to complete the story for the jury.’” (citation omitted));
Tyner v. State, 305 Ga. 326, 332 (825 SE2d 129) (2019) (“Tyner
admitted to police that, in quick succession, he threw Mickel’s purse,
the ropes with which Mickel was bound, and Mickel herself from his
car. Any evidence regarding the taking of Mickel’s purse was thus
‘linked in time and circumstances with the charged crime’ and was
properly admitted[.]”).
Turning to Rule 403, the probative value of the messages that
Appellant sent and received on June 18 was high (whether or not
they involved sexual content). The central issue at trial was
Appellant’s intent when he left Cooper in the Tucson. Evidence of
Appellant’s words and activities leading up to his leaving Cooper in
the vehicle and while Cooper was dying in the vehicle was highly
probative as to that question. See OCGA § 16-2-6 (“A person will not
be presumed to act with criminal intention but the trier of facts may
67
find such intention upon consideration of the words, conduct,
demeanor, motive, and all other circumstances connected with the
act for which the accused is prosecuted.”). See also Collins v. State,
312 Ga. 727, 741 (864 SE2d 85) (2021) (“‘[C]riminal intent may be
inferred from a person’s conduct before, during, and after the
commission of the crime.’” (citation omitted)). For example, evidence
about the messages Appellant sent before he left Cooper in the
Tucson was highly probative as to questions such as how Appellant
was feeling about Cooper at the time, whether Appellant was
intending to kill Cooper, and whether Appellant was experiencing
stress or fatigue – factors that could have contributed to his
forgetting about Cooper’s presence in the vehicle. And evidence
about the messages that Appellant sent while at work was highly
probative as to questions such as whether and what he was thinking
about Cooper, whether Appellant was distracted, and whether he
should have been reminded that Cooper was in the Tucson.
It is true that much of the evidence of Appellant’s sexual
messages on the day of Cooper’s death also may have had an unfair
68
prejudicial effect. The evidence showed in sometimes graphic detail
that Appellant was an unfaithful husband with multiple online
paramours with whom he conversed in lewd language. But the
messages that day did not reflect the young age of the women or any
activity that was facially illegal, and the evidence did not include
any enlarged pictures of Appellant’s penis. The prejudice did not
substantially outweigh the high probative value of the messages. Cf.
United States v. Moe, 810 Fed. Appx. 114, 118 (3d Cir. 2020) (holding
that the trial court did not plainly err by admitting evidence of the
defendant’s extramarital affair, which was relevant in establishing
where the defendant was and rebutting one of his defenses, and “its
probative value outweighs any prejudicial effect”). Thus, the trial
court did not abuse its discretion in admitting into evidence the
sexual messages Appellant exchanged on June 18.
(ii) Earlier sexual activities
Evidence that is further in time from the alleged crimes may,
in some circumstances, still be relevant as intrinsic evidence
necessary to complete the story of the crime. See, e.g., Harris v.
69
State, 310 Ga. 372, 377-381 (850 SE2d 77) (2020) (holding that
evidence that the appellant had been forced to leave the house by
his ex-girlfriend about six months before the crimes was intrinsic
evidence, as it explained why the appellant moved in with the victim
and provided context to statements the appellant made before the
murder, including “another woman will not put me out” and “I will
kill her first”). In this case, although the State focused only on how
Appellant’s messages contributed to his motive on the day of
Cooper’s death, it is possible that specific messages from Appellant’s
online paramours could have contributed to, for example,
Appellant’s level of stress or distraction on June 18, which Dr.
Brewer explained are relevant factors in considering whether
Appellant experienced a prospective memory failure. For example,
Appellant’s messages to Meadows on the morning of June 17, which
indicated that he was “sad” that she had again stopped responding
to his messages, could have led him to be distracted by thinking
about their relationship. Similarly, some of Appellant’s entirely non-
sexual messages from June 17, such as his messages with Milling,
70
Hall, and Abdo about going to a movie on June 18, were intrinsic
evidence explaining Appellant’s activities on the day of Cooper’s
death. 62 However, the many messages merely demonstrating
Appellant’s sustained sexual relationships with these women do not
fit in this category.
We also note that some evidence of Appellant’s history with the
six women with whom he exchanged sexual messages on the day of
Cooper’s death may have been relevant to provide context for those
messages, although the trial court did not admit any of the evidence
on this specific basis. However, by introducing records of all of the
messages available, the State went well beyond what was necessary
to establish the context of Appellant’s relationships. For example,
Smith testified that she had been communicating with Appellant
online since January 2014 and their conversations were often
sexual; Appellant did not dispute that testimony. It is not apparent
why the State had any need to establish the context of the
62 As noted above, Appellant does not argue that the admission of this
evidence was error.
71
relationship further. The probative value as to this issue of the 44
pages of messages exchanged between Smith and Appellant that
were admitted at trial, which began five months before Cooper’s
death and included vulgar messages from Appellant, such as, “I
want you to scream while my c**k stretches that p**sy,” and “I want
to f**k your tight little c**t till I blow my load down your throat”
within the first ten pages, was exceedingly low and clearly
outweighed by their prejudicial effect. 63
Thus, Appellant’s full message history was not admissible as
providing context for the messages that he exchanged on the day of
Cooper’s death. The State argues, however, that these messages –
like all of the sexual messages Appellant exchanged before the day
63 This is a good place to note our disagreement with the dissent’s
assertion that “the average juror” would not have been “shocked” by
Appellant’s sexual messages. Dis. Op. at 15-16. We think most jurors (like most
readers of this opinion) would be disturbed by messages using this sort of
shockingly graphic sexual language – of which we have in this opinion quoted
only a handful of examples, rather than recounting the dozens and dozens of
similar messages that were admitted for the jury to see. (And we have used
asterisks to soften the most profane words, which was not necessary for the
few marginally offensive words at issue in Smith v. State, 302 Ga. 717, 723-
724 (808 SE2d 661) (2017).) We also think most jurors would be shocked by
having full-page pictures of erect penises needlessly displayed to them,
although we have spared our readers any reproduction of those images.
72
of Cooper’s death – were relevant to establish Appellant’s motive.
We turn now to that argument.
(e) Sexual-activities evidence offered to prove Appellant’s motive
Appellant’s sexual messages and conduct in the weeks,
months, and even years before Cooper’s death were not closely
linked in time to the charged offenses relating to that event. The
State argues, however, that this evidence was relevant to show that
Appellant was motivated to kill Cooper by his desire to be free of his
child and his marriage so he could indulge in his sexual pursuits
unencumbered.
We have described “motive” as “the reason that nudges the will
and prods the mind to indulge the criminal intent.’” Mattei, 307 Ga.
at 303 (citation omitted). But we have also cautioned that motive
evidence must be “‘logically relevant and necessary to prove
something other than the accused’s propensity to commit the crime
charged.’” Id. (citation omitted). Alleged motives that lack a specific,
logical link to the alleged crimes, and instead define the alleged
motive in a generic fashion, are often actually improper arguments
73
focusing on the defendant’s bad character rather than a particular
motive for the charged crimes. See, e.g., Strong, 309 Ga. at 312
(holding that the State’s theory that Strong’s motive for killing his
wife’s son and stabbing her grandson was “to control other people
with violence . . . is a classic improper propensity argument” (citation
and punctuation omitted)); Carpenter v. State, 305 Ga. 725, 726 (827
SE2d 250) (2019) (holding that evidence was not admissible to
support a motive theory that indicated only “a general propensity to
threaten others with violence”); Kirby v. State, 304 Ga. 472, 487 (819
SE2d 468) (2018) (explaining that the State’s motive theory that
Kirby’s commission of “other violent crimes against women showed
his ‘inclination’ to use violence to obtain money and sex . . . is a
classic improper propensity argument, focusing on [his] violent,
greedy, and lustful character”); Thompson v. State, 302 Ga. 533, 540
(807 SE2d 899) (2017) (holding that evidence of a subsequent
attempted armed robbery was not admissible to show motive for two
murders when “[t]here is no apparent reason that the subsequent
attempted armed robbery shows evidence of motive rather than
74
propensity”).
Courts must guard against propensity and bad-character
evidence masquerading as motive evidence because it is
fundamental to our criminal justice system that
[t]he state is bound to prove the guilt of a defendant
beyond a reasonable doubt, whether his character has
been good or bad. It does not follow because an accused
person may have a bad character that he is guilty of the
particular offense for which he is being tried.
Bennett v. State, 86 Ga. 401, 403 (12 SE 806) (1890). See also People
v. White, 24 Wend. 520, 574 (N.Y. 1840) (“The sun of justice shines
alike for the evil and the good, the just and the unjust.” (punctuation
omitted)).
(i) Relevance
In this case, the State’s motive theory relied on a particular
chain of reasoning: (1) Appellant wanted to have sexual
relationships with many women; (2) Appellant’s marriage impeded
that goal; and (3) Cooper prevented Appellant from ending his
marriage. It is important to recognize that the first two links in this
chain had no direct relevance to Appellant’s alleged motive for
75
killing Cooper. Contrary to the State’s theory, a man does not
normally enhance his ability to have sexual relationships with
women by killing his young child. And also contrary to the State’s
theory, the impediments that marriage places on sexual
relationships with multiple partners are normally overcome by
cheating, divorce, or, in criminal situations, murdering one’s spouse,
not one’s child.
The vast majority of the hundreds of Appellant’s sexual
messages that were admitted into evidence – including almost all of
his messages with the nine women who testified about them – as
well as all of the evidence about Appellant’s sexual acts with Smith,
Swindell, Robledo, and the prostitute he hired for sex, proved only
the first link, which was also supported by Appellant’s messages
with anonymous Whisper users indicating that he was “addicted to
sex.” A much smaller subset of messages was relevant to the second
link in the State’s motive theory. As recounted in Division 1 (l)
above, Appellant sent messages to several Whisper users saying
that he “miss[ed] being single,” he “regret[ed]” or “hate[d]” being
76
married “sometimes,” and he “might” get a divorce. He also sent a
message to Floyd indicating that his wife was an obstacle to Floyd
coming to his home to have sex (although he ultimately said that he
was willing to take the risk), and Meadows testified that Appellant
told her that he was having problems in his marriage and that “if
his situation was different[,] he would be with [Meadows] instead of
[Leanna].”
Of all of the sexual messages and testimony, only messages
exchanged with three Whisper users – none sent close in time to
Cooper’s death and all sent to anonymous users rather than any of
the nine women who testified and – were relevant to the final, and
crucial, link in the State’s motive chain. On December 25, 2013,
when one user asked Appellant why he did not get divorced,
Appellant answered “Kid” “And it’s just sex.” On January 25, 2014,
Appellant told one Whisper user who said that she stuck out her
marriage for her children that he was in the same situation and later
told her that his “Kid” was the “glue holding [his marriage]
together.” Finally, on March 24, 2014, he told another user, “My wife
77
should divorce me and has no idea, but kids.” Although a parent can
end a relationship with a spouse and even with a child without
murdering the child, these messages might conceivably be
interpreted as suggesting that Appellant believed that he needed to
kill Cooper to accomplish his well-established goal of having sex
with numerous women.
Particularly because relevance is a liberal standard, see
Mattei, 307 Ga. at 304, we will assume that all of the evidence of
Appellant’s sexual messages and conduct that contributed to
proving any link in the State’s motive theory was relevant under
Rule 401. However, not all of this evidence was properly admissible
under Rule 403.
(ii) Rule 403
With regard to the probative value of the sexual evidence, we
begin by acknowledging that the State had a real need to establish
Appellant’s motive. Although motive is not a required element of the
crimes at issue, Appellant’s intent was the dispositive issue at trial,
and proving that Appellant, whom substantial other evidence
78
showed to be a loving and caring father, had a motive to kill his child
was important for the State in seeking to prove that he acted
intentionally and maliciously. See, e.g., Armstrong, 310 Ga. at 603
(“[T]he prosecutorial need for the other acts evidence showing gang
membership was high because, without it, it is unclear what motive
Armstrong would have had to shoot Parrish in a crowded park
merely because Parrish was in a dispute with Worthen.” (citation
and punctuation omitted)); Smart, 299 Ga. at 418 (“While motive is
not an element of any of the charged offenses here, [the evidence of
motive] was relevant to help the jury understand why Appellant
might have used violence against [his wife].”). However, as discussed
below, a large amount of the evidence of Appellant’s sexual activities
had minimal probative value in showing his alleged motive and was
needlessly cumulative or highly prejudicial.
(A) Needlessly cumulative and prejudicial evidence
The first link in the State’s motive theory – that Appellant
wanted to have sexual relationships with many women – was readily
proved and not disputed, and it was furthest from and the least
79
probative of a motive for murdering Cooper. Indeed, standing alone,
the evidence that Appellant had a sex-crazed “double life” would not
have been relevant to show his motive for murdering Cooper. 64
Without evidence that Appellant viewed Cooper as an obstacle to his
sexual conquests, Appellant’s obsession with having sexual liaisons
with many women lacks a “logical and necessary link” to the alleged
crimes against Cooper. Kirby, 304 Ga. at 487.
Yet the State was allowed to establish this relatively
inconsequential fact with the testimony of 12 witnesses (nine women
who exchanged messages with Appellant, Detective Stoddard, the
prostitute, and the police officer who interviewed the prostitute) and
hundreds of online messages (whereas the final, most crucial, and
most disputed link in the motive chain relied on four messages
Appellant sent to three anonymous Whisper users months before
64It is important to recognize that this “double life” – which the State
repeatedly referred to at trial and the dissent repeatedly mentions as well –
involved Appellant’s deception of his wife and others around him regarding his
sexual activities and proclivities. There was no evidence whatsoever that
Appellant had any sort of secret life in which he harmed children or even talked
about harming children.
80
Cooper’s death). The messages that Appellant exchanged on the day
of Cooper’s death, which we have held were admissible as intrinsic
evidence, established that Appellant had sexual relationships with
at least five women other than his wife. We acknowledge that some
amount of evidence on this issue beyond those messages may have
been probative to show that engaging in this kind of extramarital
sexual activity was an important part of Appellant’s life, rather than
a one-day affair (with five women), but there was a point at which
yet another sexual message (or another 100 sexual messages) did
not contribute to this issue in any meaningful way. Merely piling on
more evidence to show the supposedly limitless extent of Appellant’s
sexual “depravity” (as the dissent puts it, see Dis. Op. at 5) did
nothing to strengthen the link between his sexual obsession and the
key question at trial – did this obsession motivate Appellant to kill
Cooper?65
65The dissent suggests that the sexual-activities evidence must be highly
probative of Appellant’s motive because the State did not charge him with
malice murder until after it discovered the extensive evidence of his
extramarital sexual activities. See Dis. Op. at 4 n.3. Putting aside this odd
81
We need not decide precisely how much evidence the State
should have been permitted to offer to support this initial point of
its motive theory in order to conclude that a large amount of the
evidence that was presented – especially the more prejudicial
evidence of vulgar discussions – was needlessly cumulative and
should have been excluded under Rule 403. See, e.g., Corley v. State,
308 Ga. 321, 326 (840 SE2d 391) (2020) (“[The jury] was well aware
that Corley was interested in contacting law enforcement just prior
to the shooting, and the testimony of a second neighbor about this
interest would have had little probative value and would have been
needlessly cumulative.”); United States v. Street, 548 F3d 618, 625
(8th Cir. 2008) (holding that when there was “already considerable
evidence introduced at trial establishing how the informants could
have learned about details of the victim’s death,” “[c]alling another
deference to the State regarding what evidence is legally admissible to prove
motive, Appellant was charged on the day of Cooper’s death with felony murder
based on first-degree cruelty to children, for allegedly “willfully depriv[ing] the
child of necessary sustenance to the extent that the child’s health or well-being
is jeopardized.” OCGA § 16-5-70 (a). Thus, the State alleged that Appellant
intentionally acted to kill Cooper from the get-go, before any of the sexual-
activities evidence was discovered.
82
fifteen witnesses to reinforce this point would have been of little
probative value, unnecessarily cumulative, and possibly confusing
to the jury”). See also Olds, 299 Ga. at 76 n.15 (“‘If the evidence . . .
is cumulative of evidence already introduced, exclusion is more
likely.’” (citation omitted)).
(B) Highly and unfairly prejudicial evidence
In addition to including a significant amount of needlessly
cumulative evidence, the evidence of Appellant’s sexual activities
before the day of Cooper’s death included three categories of
evidence that were particularly problematic because of their trivial
probative value and very prejudicial nature. Even assuming that
each of these categories of evidence was relevant to the crimes
against Cooper, the trial court should have excluded this evidence
under Rule 403.
(1) Sexual messages with minors
The State presented evidence that Appellant sent sexual
messages to C.D. beginning in the fall of 2013, M.B. in May 2014,
and two other Whisper users who said they were minors in January
83
and February 2014. C.D. and M.B. testified about their
communications with Appellant; Detective Stoddard testified about
Appellant’s communications with the two other minor Whisper
users; and records of Appellant’s messages with each of the four girls
were admitted into evidence. With respect to the crimes against
Cooper, although the messages Appellant exchanged with C.D. on
the day of Cooper’s death were intrinsic evidence, Appellant’s other
communications with her and with the other three minors served
only the limited purpose of adding to the number of sexual
communications Appellant had with women other than his wife,
tending to prove only the first link in the State’s motive theory,
which, as discussed above, was already amply supported.
This evidence did nothing whatsoever to help prove the other
two links in the State’s motive chain. Indeed, C.D. testified that
Appellant told her that he loved his wife and would never leave her
and always talked about Cooper “in good ways,” and the messages
with M.B. and the two other minors did not mention that Appellant
84
was married or had a child. 66 There was nothing unique about
Appellant’s interactions with any of these four girls – except that
they were minors, a fact that was not important to the State’s motive
theory at all. Thus, the probative value of this evidence with regard
to the counts involving Cooper’s death was trivial at best. See Olds,
299 Ga. at 76 (explaining that if a point is proved by other strong
evidence, “the marginal value of the evidence in question” is
decreased).
On the other hand, the unfair prejudice flowing from evidence
that Appellant sent graphic sexual messages to minors was
extremely high. Not only did the jury hear many of the lewd sexual
messages Appellant sent to these minors read aloud by C.D. and
M.B. themselves and by Detective Stoddard, but the jury was given
66Although we noted in Division 3 (d) (ii) above that some of Appellant’s
prior messages with the women with whom he communicated on the day of
Cooper’s death may be relevant as providing context to that intrinsic evidence,
C.D.’s age was not relevant to those messages or necessary to provide context.
To the extent the jury may have been able to discern C.D.’s approximate age
from her appearance as she testified, that would have been only an inference
that she was young, not a confirmation that she was so young that Appellant
committed crimes by having sexual communications with her. Moreover, the
State introduced Appellant’s messages with many other Whisper users
through Detective Stoddard without calling those women and girls to testify.
85
the full record of all of the messages to review during deliberations.
Even beyond the testimony from C.D. and M.B. about their ages and
the messages from the girls expressly telling Appellant their ages,
many of the messages Appellant exchanged with these girls implied
that they were inappropriately young for Appellant to be engaging
in sexual conversations with them. For example, C.D. sent
Appellant messages about her high school classes and going to prom;
Appellant sent a message to M.B. that she had “a nice p**sy for 15”
and that she should “[m]ake [him] a naughty older g[u]y”; Appellant
wrote to the 14-year-old anonymous user that he did not want to go
to jail and therefore she could not be the one to fulfill his desire to
“get [his] dick sucked”; and Appellant discussed meeting the 17-
year-old anonymous user at her high school so he could pay her for
oral sex in his car. Appellant’s apparent sexual interest in minors
was highly prejudicial. See, e.g., United States v. Preston, 873 F3d
829, 839, 841 (9th Cir. 2017) (holding that evidence that the
appellant masturbated to a picture of his scantily clad eight-year-
old stepson was “highly prejudicial,” even in a case involving a child
86
molestation charge, explaining that “a jury confronted with such
disgusting evidence is likely to conclude that the defendant ‘is the
type’ to molest a child”).
Compounding that prejudice, Appellant was being prosecuted
only for the crimes against C.D. See Strong, 309 Ga. at 311
(explaining that the unfair prejudicial effect of other-act evidence
was made worse because “as far as the jury knew, Appellant had
escaped any punishment for this litany of” other crimes). See also
Old Chief, 519 U.S. at 181 (noting “‘the risk that a jury will convict
for crimes other than those charged – or that, uncertain of guilt, it
will convict anyway because a bad person deserves punishment’”
(citation omitted)). There was no evidence that Appellant had been
charged with any crimes related to, for example, the felonies of
soliciting an act of prostitution and sodomy from the anonymous 17-
year-old Whisper user, 67 or crimes associated with sending M.B.
See OCGA §§ 16-6-12 (“A person commits the offense of pandering
67
when he or she solicits a person to perform an act of prostitution in his or her
own behalf . . . .”); 16-6-13 (b) (2) (making a conviction under § 16-6-12 a felony
punishable by imprisonment for ten to 30 years “when such offense involves
87
graphic messages describing sex. 68 Even worse, the prosecutor
hinted at Appellant’s lack of punishment for his communications
with M.B. during closing argument, saying that Appellant “was
messaging with what turned out to be a 15-year-old girl. Something
we didn’t find out about until after indictment.” 69
the conduct of a person under the age of 18 years”); 16-6-15 (b) (“A person
convicted of solicitation of sodomy when such offense involves the solicitation
of a person or persons under the age of 18 years to perform or submit to an act
of sodomy for money shall be guilty of a felony . . . .”).
68 See OCGA § 16-12-100.2 (e) (1) (“A person commits the offense of
obscene Internet contact with a child if he or she has contact with . . . someone
he or she believes to be a child via a computer wireless service or Internet
service . . . and the contact involves any matter containing explicit verbal
descriptions or narrative accounts of sexually explicit nudity, sexual conduct,
sexual excitement, or sadomasochistic abuse that is intended to arouse or
satisfy the sexual desire of either the child or the person . . . .”), (e) (2) (“Any
person who violates paragraph (1) of this subsection shall be guilty of a felony
and, upon conviction thereof, shall be punished by imprisonment for not less
than one nor more than ten years[.]”), (b) (1) (“‘Child’ means any person under
the age of 16 years.”). See also OCGA §§ 16-12-103 (a) (2) (“It shall be unlawful
for any person knowingly to . . . furnish or disseminate to a minor . . . [a]ny . . .
printed matter however reproduced . . . which contains any . . . explicit and
detailed verbal descriptions or narrative accounts of sexual excitement [or]
sexual conduct . . . which, taken as a whole, is harmful to minors.”), 16-12-102
(defining “minor” as “a person less than 18 years of age”), 16-12-105 (explaining
that, with a limited exception not applicable here, a person convicted of this
crime is “guilty of a misdemeanor of a high and aggravated nature”). OCGA §
16-12-103 (a) (2) was the basis for one of the counts related to C.D.
69 We held in Heade that the prejudicial effect of evidence that Appellant
had committed prior crimes was lessened because the trial court instructed the
jury to consider that evidence only for certain limited purposes, even though
the evidence was admitted as intrinsic evidence. See 312 Ga. at 27. On the
88
This serious unfair prejudice wholly outweighed whatever
minimal probative value Appellant’s sexual interactions with
minors had in establishing the existence of the first link (and only
the first link) of his alleged motive for killing Cooper. This was
precisely the sort of evidence that Rule 403 exists to exclude:
“‘matter of scant or cumulative probative force, dragged in by the
heels for the sake of its prejudicial effect.’” Flowers, 307 Ga. at 622-
623 (citation omitted). 70 Thus, the trial court abused its discretion in
admitting this evidence as to the crimes against Cooper. See Carlton
v. State, 356 Ga. App. 1, 8-9 & n.7 (846 SE2d 175) (2020) (holding
that evidence about the appellant’s “history of sexually deviant
behavior,” including “sexually deviant behavior toward persons
under the age of sixteen,” a sexual relationship with “a naïve
teenager,” and “sexual abuse of minor children,” was inadmissible
other hand, we held in Strong that in light of “the seriousness of most of the
multiple uncharged acts and the lack of evidence that Appellant faced
punishment for any of them,” the prejudicial effect was not eliminated by a
jury instruction to consider the other-act evidence only as to the crimes
charged. 309 Ga. at 311 n.18. In this case, no limiting instruction was given.
70 Again, we are not addressing the admission of this evidence to prove
the crimes against C.D., which should have been severed. See footnote 58 above
and Division 4 below.
89
under Rule 403 when its value in proving the charged attempted
aggravating stalking was “marginal” and “the prejudicial effect
greatly outweighed any possible probative value”).
(2) Full-page copies of pictures of Appellant’s erect penis
As recounted in Division 1 above, the State introduced into
evidence multiple pictures that Appellant sent women of his erect
penis. Nine of these pictures were admitted twice – once as
thumbnail-size photos embedded in the record of the messages
Appellant exchanged with the women, and again as separate, full-
page (8.5 by 11 inches), color exhibits. These pictures were sent
between March 6 and June 15, 2014; none of the pictures were
identified as being sent on the day of Cooper’s death. Notably, at oral
argument in this Court, the State’s counsel acknowledged that she
did not know of a proper purpose for which the prosecutor introduced
these nine, enlarged copies of pictures of Appellant’s erect penis. 71
When presented as included in the record of the messages
71 Notwithstanding the State’s concession that there was no basis for
admitting them, the dissent insists that even these enlarged, duplicative penis
pictures were properly admitted. See Dis. Op. at 17 n.8.
90
Appellant exchanged with women, the pictures Appellant sent
women of his erect penis may have been minimally probative in
illustrating the sexual nature of Appellant’s online conversations
(which yet again was probative only of the first link in the State’s
motive argument). The probative value of presenting nine of these
images as separate, larger exhibits was essentially non-existent.
On the other hand, the unfair prejudicial impact of these
pictures – and particularly pulling nine of them out of the message
records as separate exhibits showing enlarged color images of
Appellant’s erect penis – was quite high. And the unfair prejudice as
to six of the nine penis pictures was exacerbated by the fact that the
jury learned, through the testimony of C.D. and M.B., that Appellant
sent five of these pictures – the blown-up copies of which the State
displayed to the jury – to C.D., someone Appellant knew was a
minor, and sent one to M.B., someone Appellant later learned was a
minor; these were not only vulgar acts but potentially criminal
offenses. Thus, the trial court abused its discretion under Rule 403
at least by admitting the nine, separate exhibits showing full-page
91
pictures of Appellant’s erect penis. See United States v. Hands, 184
F3d 1322, 1328-1329 (11th Cir. 1999), corrected, 194 F3d 1186 (11th
Cir. 1999) (holding that even if relevant to the charged drug crimes,
evidence of the appellant’s domestic violence had “minimal
probative value” and the six photographs of the victim’s injuries
“had even less value” and were especially prejudicial because they
were “superfluous,” given the other evidence, and “impressed the
fact of the domestic abuse on the jury’s consciousness with dramatic,
graphic impact”).
(3) Hiring a prostitute
Two witnesses testified to establish that Appellant hired a
prostitute three times in May 2014 – the woman Appellant hired
and the police officer who interviewed the woman. Although this
testimony may have been relevant for the limited purpose of adding
yet another example of Appellant’s sexual activities to demonstrate
the first link in the State’s motive argument, neither these witnesses
nor anyone else indicated that Appellant’s interactions with the
prostitute were hampered by his marriage or that he wanted to leave
92
his wife – much less murder his child – in order to have more sex
with her or other prostitutes.
The prosecutor asserted in closing argument that Appellant’s
hiring a prostitute showed “how his priorities were set and how this
was escalating leading up to June 18, 2014.” But other evidence also
showed that Appellant’s sexual activity included in-person liaisons
as far back as 2013: Swindell testified that she had oral sex with him
in February 2013; Robledo testified that she had sex with him in the
summer of 2013; and Smith testified that she had sex with him in
February 2014. In addition, Floyd, Sims, and Cornett testified that
Appellant talked about meeting in person; Cornett even described
Appellant as “adamant” about meeting and testified that he seemed
to want “sexual favors” from her. Thus, even without the evidence of
Appellant’s hiring a prostitute, the jury was fully aware that his
“priorities” included meeting other women for sex and had since
early 2013. Moreover, although hiring a prostitute may be different
in some ways than having sex with the women he met online, the
State has not explained how any such difference could help make
93
Appellant’s alleged motive to kill his child any more likely. Thus, the
probative value of the evidence that Appellant hired a prostitute
three times in May was trivial. 72
The unfair prejudicial effect of this evidence was substantially
greater. This evidence showed not only that Appellant repeatedly
cheated on his wife but also that in doing so, he committed three
more sex-related crimes. See OCGA §§ 16-6-12; 16-6-13 (a) (4)
(punishment for second and subsequent offenses of pandering is a
felony and a term of imprisonment of not less than one year). And
again there was no evidence that he had been prosecuted or
punished for these crimes. See Strong, 309 Ga. at 311. Thus, the trial
court abused its discretion in concluding that the evidence of
Appellant’s repeated hiring of a prostitute was admissible under
Rule 403. See United States v. Benanti, 755 Fed. Appx. 556, 560-561
72The dissent adopts the State’s escalation theory, asserting that
Appellant’s sexual actions “progressed from online conversations to seeking in-
person meetings, to eventually soliciting prostitutes when earlier efforts were
unsuccessful.” Dis. Op. at 8 n.7. But as just discussed, the evidence actually
showed that Appellant’s earlier efforts to engage in sexual liaisons with women
he met on-line were not unsuccessful. In-person sexual conduct was always
part of Appellant’s extramarital sexual activities, rather than a new
development near the time of Cooper’s death.
94
(6th Cir. 2018) (holding that the admission of evidence that the
appellant cheated on his girlfriend with a dancer at a strip club was
inadmissible under Rule 403 because “much of the detail about [the
appellant’s] affair had nothing to do with [the government’s]
asserted purpose[, a]nd that testimony was unfairly prejudicial: it
described in great detail [the appellant’s] liaisons with a stripper
whom he paid for sexual favors, while cheating on a girlfriend who
was soon to die”). Cf. Wood v. Alaska, 957 F2d 1544, 1552-1553 (9th
Cir. 1992) (noting in a prosecution for rape that evidence that the
victim “not only . . . had extramarital sex, but also . . . posed nude
and had sex both for money and for the purpose of making
pornography” was highly prejudicial in part “[b]ecause many people
consider prostitution and pornography to be particularly offensive”
and jurors could “be influenced by their impression of [the victim] as
an immoral woman”).
(f) Conclusion
Evidence showing the sexual messages that Appellant
exchanged on the day of Cooper’s death and some contextual
95
evidence of Appellant’s earlier extramarital sexual activities was
properly admitted as intrinsic evidence to tell the story of the alleged
crimes involving Cooper or as evidence of Appellant’s motive to
murder Cooper. However, a large amount of the evidence offered to
show Appellant’s sexual interest in other women was needlessly
cumulative, and three categories of evidence were unfairly
prejudicial in a way that substantially outweighed their trivial
probative value; all of that evidence should have been excluded
under Rule 403. We will discuss the harm resulting from the trial
court’s error in admitting this evidence in Division 5 below.
4. The motion to sever
As noted at the beginning of Division 3 above, the question of
whether some of the evidence discussed in that division –
particularly the evidence related to C.D. and other evidence of
Appellant’s sexual activities with minors – was admissible at
Appellant’s trial for the crimes against Cooper is intertwined with
the question of whether the trial court should have granted
Appellant’s motion to sever for separate trials the three counts
96
related to C.D. from the five counts related to Cooper. Because, as
we concluded in Division 3, almost all of the evidence needed to
prove the counts related to C.D. was inadmissible as to the counts
related to Cooper, the trial court abused its discretion by denying
Appellant’s motion to sever.
Before trial, Appellant filed a motion to sever the counts
related to C.D. After a hearing, the trial court denied the motion.
The court first correctly held that the alleged offenses against
Cooper and against C.D. were not joined “solely because of their
same or similar character.” But the court then ruled that because
the evidence related to C.D. would be admissible in a trial for the
alleged crimes against Cooper, severance was not required, and the
court declined to exercise its discretion to sever the counts,
concluding that “considering the number and complexity of the
offenses charged and . . . the nature of the evidence . . . , the trier of
fact will be able to parse the evidence and apply the law with regard
to each charge.”
Counts alleging criminal offenses may be joined in one
97
indictment “when the offenses . . . are of the same or similar
character” or “are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or plan.”
Harrell v. State, 297 Ga. 884, 889 (778 SE2d 196) (2015) (citation
and punctuation omitted). “If the charges are joined solely because
they are of the same or similar character, a defendant has an
absolute right to sever.” Stewart v. State, 277 Ga. 138, 139 (587 SE2d
602) (2003). “‘[W]here the joinder is based upon the same conduct or
on a series of acts connected together or constituting parts of a single
scheme or plan, severance lies within the sound discretion of the
trial judge[.]’” Simmons v. State, 282 Ga. 183, 185 (646 SE2d 55)
(2007) (citation omitted)).
When exercising that discretion, the trial court must determine
if severance of the charges would “promote a fair determination of
the defendant’s guilt or innocence of each charge.” Harrell, 277 Ga.
at 140 (citation and punctuation omitted). Counts should be severed
“to prevent a defendant from being forced to proceed ‘at an unfair
disadvantage, due to confusion of law and evidence by the trier of
98
the fact[s] and the “smear” effect such confusion can produce.’” Id. at
891 (quoting Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752)
(1975)). Generally, “where evidence of one charge would be
admissible in the trial of another, a trial court does not abuse its
discretion by denying a motion for severance.” Simmons, 282 Ga. at
185.
The first count related to C.D. alleged that Appellant
attempted to commit sexual exploitation of C.D., a minor, by asking
her to provide a photograph “involving the lewd exhibition of her
genital and pubic area.” 73 The State proved this count primarily with
C.D.’s testimony and the record of Appellant’s messages with her,
which includes at least seven messages beginning at least seven
months before Cooper’s death in which Appellant attempted to
convince C.D. to send him a photograph of her vagina. For the
“It is unlawful for any person knowingly to employ, use, persuade,
73
induce, entice, or coerce any minor to engage in . . . any sexually explicit
conduct for the purpose of producing any visual medium depicting such
conduct.” OCGA § 16-12-100 (b) (1). For purposes of this Code section, “minor”
means “any person under the age of 18 years,” and “[s]exually explicit conduct”
includes “[l]ewd exhibition of the genitals or pubic area of any person.” OCGA
§ 16-12-100 (a) (1), (4) (D).
99
reasons discussed in Division 3 (d) (i) above, one of these messages
– the one Appellant sent to C.D. on the afternoon of Cooper’s death
– was admissible as intrinsic to the alleged crimes against Cooper.
All of the other messages were not properly admissible with respect
to those offenses, however, nor was evidence of C.D.’s age.74
The other two counts related to C.D. alleged that between
March 1 and June 15, 2014, Appellant sent C.D. messages with
graphic descriptions of sex and pictures of his erect penis. 75 All of
Appellant’s messages describing sex were sent to C.D. by June 11,
and all of the penis pictures were sent by June 15. Thus, these
alleged crimes related to C.D. were completed three days before the
alleged crimes against Cooper. This evidence did not help complete
the story of Cooper’s death, and, as explained above, it was not
properly admissible to prove Appellant’s alleged motive to kill
74 See footnote 66 above.
75 As noted in footnote 68 above, OCGA § 16-12-103 (a) (2) prohibits the
dissemination to minors of “explicit and detailed verbal descriptions or
narrative accounts of sexual excitement [or] sexual conduct.” OCGA § 16-12-
103 (a) (1) prohibits dissemination to minors of “[a]ny picture . . . of a person
or portion of the human body which depicts sexually explicit nudity . . . and
which is harmful to minors.”
100
Cooper.
The State supplemented this proof with evidence of Appellant’s
earlier sexual messages with C.D. as well as his lewd messages with
M.B. and two other anonymous minors, including his exchange of
sexual pictures with a Whisper user who told him that she was 17
years old. That evidence may have been admissible with respect to
the alleged crimes involving C.D. under Rule 404 (b) or OCGA § 24-
4-414 (a), which says that “[i]n a criminal proceeding in which the
accused is accused of an offense of child molestation, evidence of the
accused’s commission of another offense of child molestation shall be
admissible and may be considered for its bearing on any matter to
which it is relevant.” See also OCGA § 24-4-414 (d) (defining “offense
of child molestation” as including “conduct that would be a violation
of . . . [OCGA §§] 16-12-100 [and] 16-12-100.2”). But as discussed
above in Division 3 (e) (i) (B) (1), this evidence was not properly
admissible with respect to the charges involving Cooper.
Extensive evidence that Appellant was a man who commits sex
crimes against minors – admitted without any limitation – likely
101
had a substantial “smear” effect that forced Appellant to proceed at
an unfair disadvantage when trying to defend himself against
offenses of an entirely different character involving Cooper. Thus,
the trial court abused its discretion by denying Appellant’s motion
to sever. See Harrell, 297 Ga. at 890-891 (holding that the trial court
erred by declining to sever an animal-cruelty count from the trial for
endeavoring to intimidate court officers because they were “simply
separate crimes of different character, committed 13 days apart”);
Booker v. State, 231 Ga. 598, 599 (203 SE2d 194) (1974) (“[W]here
the separate crimes did not arise out of the same conduct, did not
involve the same victims or witnesses and the evidence of one would
not be admissible on the trial of the other, the judgment of the trial
court overruling the motion to sever was error as constituting an
abuse of discretion.”). See also Mims v. State, 304 Ga. 851, 857 (823
SE2d 325) (2019) (holding that counsel was deficient for not filing a
motion to sever a car-theft offense from murder-related counts,
because, although evidence of the appellant’s possession of the car
was admissible in the murder trial to show the appellant’s identity,
102
“the fact that the car was stolen or that [the appellant] brought the
stolen vehicle from Georgia to another state had no bearing on any
of the murder-related offenses”).76
5. Harm
Having concluded that the trial court erred by admitting a
substantial amount of evidence about Appellant’s sexual activities
and by failing to sever the counts related to C.D. from the counts
related to Cooper, we must now consider whether those errors
require reversal of Appellant’s convictions for the counts related to
Cooper. Non-constitutional errors like these may be deemed
harmless only if “it is highly probable that the error[s] did not
76 To the extent that any evidence of Appellant’s sexual activities may
have been improperly admitted as to the crimes against C.D., and to the extent
that Appellant should have had the three counts involving C.D. resolved in a
separate trial, such errors had no probable effect on the jury’s verdicts as to
those counts. As noted above in footnote 58, Appellant does not claim that any
errors affected his convictions for the crimes related to C.D., and the evidence
of those crimes was overwhelming. See Jackson v. State, 177 Ga. App. 881, 881
(341 SE2d 511) (1986) (concluding that the seventh charge of sale of marijuana
should have been severed from the trial of six others and reversing the
defendant’s conviction on the seventh count, but affirming his convictions on
the first six counts because “it appears highly probable that the inclusion of
evidence concerning the seventh count did not contribute to the guilty
verdicts”).
103
contribute to the verdict[s].” Heard, 309 Ga. at 90 (citation and
punctuation omitted) (considering harm with regard to the
erroneous admission of other-acts evidence). See also Harrell, 297
Ga. at 891 (considering harm with regard to the erroneous failure to
sever counts). In making this determination, we consider the
prejudice caused by the trial court’s errors cumulatively, see State
v. Lane, 308 Ga. 10, 17 (838 SE2d 808) (2020),77 and we review the
record de novo, weighing the evidence as we would expect reasonable
jurors to have done, see Heard, 309 Ga. at 90. Accordingly, “[w]e will
parse back through the evidence, because it looks different when not
viewed only in the light most favorable to the guilty verdicts as we
did in evaluating its legal sufficiency in Division 2 above.” Id. at 92.
As discussed in Division 3 (e) above, extensive evidence
77 Lane held that “Georgia courts considering whether a criminal
defendant is entitled to a new trial should consider collectively the prejudicial
effect of trial court errors and any deficient performance by counsel – at least
where those errors by the court and counsel involve evidentiary issues.” 308
Ga. at 14. In this case, the trial court’s error in denying the motion to sever
largely had the evidentiary effect of supporting the admission of the evidence
regarding Appellant’s exchange of messages and pictures with C.D. and
possibly with the other minors. Thus, we will consider that error cumulatively
with the trial court’s error in failing to exclude evidence under Rule 403.
104
regarding Appellant’s sexual activities, including many crude and
graphic sexual messages, was admitted to prove that Appellant
wanted to and did engage in sexual activities outside of his
marriage, a point that was the first link in the State’s motive theory.
A large amount of this evidence was needlessly cumulative and
should have been excluded. The prejudicial effect of this overkill
evidence was severely exacerbated by the highly prejudicial impact
of the three categories of improperly admitted evidence discussed in
Division 3 (e) (ii) (B). Each category of this evidence not only added
to the already voluminous evidence showing that Appellant was an
unfaithful husband but also revealed to the jury new, vulgar sexual
conduct. Not only was Appellant a man who sent lewd sexual
messages to a multitude of women online, but he also feloniously
sent sexual messages to minors. Not only did Appellant send
messages with crude descriptions of sex, but he also sent pictures of
his erect penis – nine of which the State chose to enlarge as separate
exhibits and thus emphasize to the jury. And not only did Appellant
have sex with women other than his wife, but one of those women
105
he illegally hired as a prostitute.
Thus, this evidence was not “relatively benign” or merely
cumulative, as we often have concluded in cases deeming improperly
admitted evidence harmless. Heard, 309 Ga. at 91. See also, e.g.,
Merritt, 311 Ga. at 882; Ragan, 299 Ga. at 833. Instead, this
erroneously admitted evidence added sharper, more damning, and
more plainly criminal details to the State’s portrayal of Appellant as
a man of despicable character who deserved punishment.
The high risk of prejudice from this improperly admitted
evidence “might be offset only by the most compelling properly
admitted evidence of guilt.” Strong, 309 Ga. at 317. Viewed only in
the light most favorable to the prosecution, the evidence could be
considered strong. But we must remember that when evaluating the
harm resulting from trial court errors, we view the evidence more
evenly, and thus we must recognize that for many of the State’s
strong points, Appellant offered a strong counterpoint. Viewed in
this way, although the evidence was undisputed that Appellant left
Cooper in the Tucson for almost seven hours on a hot day, thereby
106
causing the child’s death, the evidence that Appellant did so
intentionally and maliciously was far from compelling or
particularly strong. See id. at 317-318 (explaining that although
there was “no dispute” that the appellant stabbed the victims, the
evidence that the appellant did not act in self-defense was “not
overwhelming” enough to render the evidentiary errors harmless).
The State presented evidence tending to show that Appellant
purposefully left Cooper to die an agonizing death in a hot vehicle,
but Appellant presented evidence tending to show that he was a
doting father who accidentally forgot that his beloved son was in the
vehicle. The determination of Appellant’s intent was a close
question.
The State presented evidence that would support an inference
that Appellant could not have forgotten about Cooper’s presence.
Appellant spent about 20 minutes with Cooper eating breakfast at
the Chick-fil-A before he secured the awake child in the car seat,
which may have been three inches too short for Cooper and was
placed only inches behind Appellant’s seat in the vehicle. Appellant
107
then had to forget that Cooper was in the vehicle within just 40 to
60 seconds and not detect Cooper’s presence during the remaining
three-minute drive to work, during the more than 30 seconds he
spent in the Tucson after parking, or when he returned to the vehicle
after lunch (which he neglected to mention to Detective Stoddard
during his interview). Appellant had to forget about Cooper for
almost seven hours without anything triggering him to realize that
he had failed to drop off his son at day care that morning.
And the jury may have found Appellant’s behavior after work
and when he found Cooper to be suspicious. Despite some testimony
that there was an odor in the Tucson, Appellant said that he did not
notice Cooper until he had driven away from work and was near a
populated parking lot. Immediately after taking Cooper out of the
vehicle, Appellant began pacing around the parking lot; he did not
call 911 or Cooper’s mother or do proper CPR. Witnesses described
some of Appellant’s behavior after Cooper’s death as “very odd” or
“forced.”
Appellant also admitted that he was aware of the dangers of
108
forgetting a child in a car, having watched a news report about a
man who did that and received emails on the subject, allowing the
jury to infer that Appellant used this knowledge to make Cooper’s
death appear to be an accident. And the prosecutor argued that the
message Appellant sent to a stranger while he and Cooper were at
the Chick-fil-A, saying, “I love my son and all, but we both need
escapes,” was proof that Appellant was ready to escape his fatherly
responsibilities.
In support of Appellant’s defense, his activities and behavior
on the night before Cooper’s death and during the day were not
suggestive of someone who was plotting to or was actively engaged
in killing his son in such a slow and painful way.78 The night before
Cooper’s death, Appellant made plans to see a movie with friends
the next day after work, an odd thing to do if he was planning to kill
78It is not clear from the State’s arguments at trial whether the State’s
theory was that Appellant had been planning to kill Cooper or that his decision
to kill Cooper was an impulsive choice on the day. When discussing
premeditation in closing argument, the prosecutor told the jury to remember
that the State did not “have to prove that [Appellant] woke up that morning
and at 7:55 [and] decided: You know what? I’m going to murder my child.”
109
his child that day, and looked up child passport fees, indicating that
he was planning a future trip with Cooper. The next morning,
Appellant took Cooper into the Chick-fil-A for a leisurely breakfast,
rather than driving straight to work or going through the drive-
through.
Appellant then spent an entire workday without a trace of an
indication that he knew his son was trapped dying in a hot car. He
conducted internet searches for a planned family cruise. He
communicated with his many online paramours and Whisper users
as usual, including telling one Whisper user that his son was
“awesome.” Rather than staying isolated, he went to lunch with his
friends, who did not notice anything abnormal, and went back to the
Tucson but did not put his head inside. Then he returned to work,
sending more online messages that gave no indication that anything
unusual was occurring. He did nothing that alerted Leanna that he
had decided to harm Cooper but instead spoke with her on the phone
about who would pick up Cooper. The jury certainly could have
concluded that Appellant could not have carried off this performance
110
while knowing that his son was suffering a slow and painful death.
In response to the State’s evidence supporting an inference
that Appellant could not have forgotten Cooper, the defense
presented the testimony of an expert in human memory, Dr. Brewer,
who testified that prospective memory failure can happen in a
“matter of seconds,” even less than 40 seconds, and can happen even
in cases like this where the prospective task is highly important and
the person forgetting is intelligent. Dr. Brewer also testified that
Appellant was experiencing factors that can contribute to memory
failure, including fatigue, job-related stressors, and the immediate
distraction of the complicated U-turn. The State cross-examined Dr.
Brewer, but presented no contrary expert testimony.
Cooper’s day care teachers and surveillance video showed that
Cooper was asleep on some mornings when Appellant brought him
into day care (usually at an earlier time than on June 18), and
Leanna testified that Cooper regularly fell asleep when he had just
eaten or when being driven around in the car seat; thus, the jury
could have inferred that Cooper fell asleep right after Appellant
111
drove away from the Chick-fil-A or merely that Cooper made no
noise during the drive. Leanna testified that Cooper’s head was still
two inches from the top of the car seat and that a picture from April
20 showing Cooper’s head below the top of the seat was how he
looked in the seat in June. And while Appellant did not get out of
the Tucson immediately when he parked, the evidence indicated
that he gathered his work bag and Chick-fil-A cup from the front of
the vehicle, which would not have required him to look in the back
where Cooper was.
As to Appellant’s behavior after he discovered Cooper,
Appellant told Detective Stoddard that he did not call 911 because
he knew other people had and that he was too upset to correctly do
CPR so someone else took over. This account was somewhat
corroborated by the two 911 calls from witnesses played at trial and
a witness’s testimony about doing CPR after seeing Appellant
“fumbling around” as if trying to do it. And one of the police officers
who responded to the scene testified that when Appellant tried to
approach Cooper while another officer was doing CPR, Appellant
112
was “shooed away.” The witnesses and police officers who testified
that they found Appellant’s emotional response to be strange also
acknowledged that they did not know Appellant or how he reacted
to trauma. Leanna testified that Appellant’s attempt to make small
talk with the detective, while inappropriate, was in-character for
him. Moreover, the witnesses’ testimony about how they believed a
man who has just accidentally killed his child should act was
inconsistent – with some witnesses asserting that Appellant was
acting too “hysterical” or “frantic[]” to be genuine, while other
witnesses asserting that his “calm” demeanor was unexpected.
Appellant’s account of what happened to Cooper was consistent: he
told the officer at the scene that he had forgotten to drop off Cooper
at day care and had forgotten to do a “second look” inside the car,
and he said in his interview with Detective Stoddard and in his
conversation with Leanna that he accidentally forgot about Cooper.
As for Appellant’s motive, the State demonstrated, with the
evidence of his sexual messages and conduct that was properly
admitted, that Appellant had sexual relationships with many
113
women other than Leanna and wanted even more. A fraction of this
evidence also showed that Appellant was dissatisfied with his
marriage, and an even smaller fraction indicated that Cooper was
the only reason he was still married. This evidence allowed a
strained inference that Appellant was motivated to murder his child
so that he could end his marriage, thereby allowing him to have
more sexual relationships.
However, as discussed above, the evidence suggesting that
Appellant viewed Cooper as an obstacle to his ability to fulfill his
desire to end his marriage was minimal, and without this evidence,
it was not a reasonable inference that a man would believe that he
had to kill his child (rather than, for example, his wife) to escape his
marriage. Even the four messages (amidst hundreds) which
indicated that Appellant stayed married because of Cooper did not
indicate that Appellant thought his son needed to die to allow an
escape from the marriage. Indeed, Appellant’s successful
engagement in many long-running online relationships suggested
that he was not actually hampered by Cooper’s existence such that
114
he needed to divorce Leanna, much less murder Cooper, to fulfill his
desires. For example, Sims testified that she began communicating
with Appellant in June 2012, two months before Cooper was born,
and Swindell testified that she began communicating with
Appellant in late 2012 or early 2013, shortly after Cooper was born.
Both women continued their relationships with Appellant until
Cooper’s death.
Moreover, the State’s weakly supported motive theory based on
multiple inferences (the most important of which was supported by
the least evidence) was contradicted by substantial evidence that
Appellant loved and cared for his young son and had never
mistreated Cooper, including testimony from Leanna (who had
divorced Appellant before the trial), Cooper’s day care teachers, and
Appellant’s and Leanna’s family members and friends. Several of
Appellant’s online paramours testified that Appellant spoke about
Cooper in loving terms. For example, he told Robledo that Cooper
was “the best,” and he told Meadows that “Cooper was his life” and
that he “wanted to be with Cooper for everything he did.” Even the
115
last messages that Appellant exchanged before leaving the Chick-
fil-A, with the woman who posted “I hate being married with kids,”
made clear that the woman did not “resent [her] kids” and that, even
though Appellant believed everyone needed “escapes,” he “love[d]
[his] son and all.”
Thus, there was substantial evidence both supporting and
undermining the State’s claim that Appellant had intentionally and
maliciously left Cooper in the Tucson. When the State’s properly
admitted evidence is not viewed only positively but rather is
balanced against the evidence elicited by Appellant, the proof of
Appellant’s guilt was not “overwhelming,” “compelling,” or even
strong. The jury deliberated for almost three and a half days. As a
result of the trial court’s errors, however, the jury also heard and
saw strong and undisputed evidence that Appellant had felonious
sexual conversations with 15-, 16-, and 17-year-old girls; illegally
sent women and girls pictures of his erect penis; unlawfully hired a
prostitute on several occasions; and engaged in a seemingly endless
series of lewd sexual conversations with a litany of women other
116
than his wife. This improperly admitted evidence abundantly
demonstrated Appellant’s repugnant character – portraying him as
a philanderer, a pervert, and even a sexual predator – and gave the
jurors reason to believe that he would engage in other morally
repulsive conduct (like leaving his child to die painfully in a hot car)
and reason to punish him even if they were not convinced beyond a
reasonable doubt that he committed the charged crimes against
Cooper.
In sum, we cannot say that it is “highly probable” that the trial
court’s erroneous admission of evidence of Appellant’s sexual
activities and the court’s denial of his motion to sever did not
contribute to the guilty verdicts as to the crimes against Cooper. We
therefore reverse Appellant’s convictions for those crimes (Counts 1
to 5). See, e.g., Heard, 309 Ga. at 94 (noting that the evidence that
Appellant committed the charged crimes was “shaky”); Carlton, 356
Ga. App. at 10 (holding that the improper admission of evidence of
Appellant’s “sexually deviant behavior” was not harmless in light of
the “highly disputed evidence” about whether the appellant had the
117
requisite intent to commit the charged crimes); Hands, 184 F3d at
1332 (holding that the erroneous admission of the appellant’s past
acts of domestic violence was not harmless when the evidence that
the appellant committed the charged crimes was “not
overwhelming” and the appellant’s domestic violence “was likely to
anger the jurors and could have impelled them to render an adverse
verdict in order to punish [him]”).
6. Issues that are likely to recur if Appellant is retried
Appellant has raised a number of other enumerations of error
related to his convictions for crimes against Cooper. Because the
evidence was legally sufficient to sustain Appellant’s convictions for
those crimes, the State may choose to retry him. See Heard, 309 Ga.
at 83 n.10. We will therefore briefly address the other issues raised
by Appellant that appear likely to recur if he is retried.
(a) Compelled disclosure of expert’s notes
The first issue involves the trial court’s order compelling
Appellant to disclose to the State notes written by Dr. David
Diamond, a potential expert witness whom Appellant consulted
118
about incidents involving children forgotten in cars. As part of
reciprocal discovery before trial, see OCGA § 17-16-2 (a), Appellant
gave the State a PowerPoint presentation that Dr. Diamond planned
to use during his testimony and a two-paragraph summary of the
expert’s anticipated testimony. 79 The State then spoke with Dr.
Diamond. From this information, the State learned that Dr.
Diamond had interviewed Appellant. The State filed a motion to
compel Appellant to provide all documentation that Dr. Diamond
created related to interviews with Appellant.
The trial court granted the State’s motion, requiring Appellant
to produce “any and all statements and writings memorialized in
any manner regarding Dr. David Diamond’s conversations,
interviews, and discussions with [Appellant].” The court concluded
that pretrial disclosure was necessary under OCGA § 24-7-705
79The summary said that Dr. Diamond had reviewed driving routes and
investigative reports about Appellant’s response to his discovery of Cooper and
Appellant’s driving route and noted that Dr. Diamond had interviewed
Appellant. The summary did not identify any information that Appellant
provided during the interview that helped form Dr. Diamond’s opinion.
119
(“Rule 705”) “to allow the State an opportunity for meaningful cross-
examination.”80 As required by that order, Appellant then provided
the State with the notes Dr. Diamond took in preparation for and
during his interview with Appellant. 81 Appellant did not call Dr.
Diamond to testify at trial. 82
The trial court’s pretrial order to compel was proper under Rule
705, which says:
An expert may testify in terms of opinion or inference and
give reasons therefor without first testifying to the
underlying facts or data, unless the court requires
otherwise. An expert may in any event be required to
80 In its pretrial order, the trial court concluded that Dr. Diamond’s notes
were also required to be disclosed under a discovery statute, OCGA § 17-16-7;
in its order denying Appellant’s motion for new trial, the court concluded that
a different discovery statute, OCGA § 17-16-4, as well as Rule 705, required
disclosure of the notes. Because we conclude that the court’s order requiring
disclosure of Dr. Diamond’s notes was proper under Rule 705, we need not
decide whether the notes were otherwise discoverable.
81 The notes consist of six pages, three typed and three handwritten. In
an effort to avoid seeing any notes that were not properly discoverable, the
State asked a prosecutor in the Brunswick Circuit District Attorney’s office to
examine the notes. The examiner put in a sealed envelope the three
handwritten pages, which she determined were not subject to the order to
compel because they were not actually related to Dr. Diamond’s interview with
Appellant.
82 In denying Appellant’s motion for new trial, the trial court held that
Appellant had not preserved this claim for post-trial review because he did not
call Dr. Diamond to testify at trial. We agree with that conclusion. See McKoy
v. State, 303 Ga. 327, 332-334 (2018); McAllister v. State, 351 Ga. App. 76, 86-
87 (2019). However, the issue may recur if Appellant is tried again.
120
disclose the underlying facts or data on cross-
examination.
While the second sentence of this rule is focused on disclosure during
cross-examination, the first sentence explains that although an
expert may testify about an opinion without first providing the facts
or data underlying that opinion, the trial court may require
otherwise. Federal courts applying the substantially similar Federal
Rule of Evidence 705 have explained that the trial court has
discretion in requiring the disclosure of “facts or data” underlying
an expert opinion, including the ability to require that disclosure
before trial. Indeed, the Advisory Committee Notes to Federal Rule
705 explain that the rule “assumes that the cross-examiner has the
advance knowledge which is essential for effective cross-
examination,” as “safeguard[ed] . . . by the discretionary power of
the judge to require preliminary disclosure in any event.”83 See
generally 29 Charles Alan Wright et al., FEDERAL PRACTICE AND
83 “[A]lthough Advisory Committee Notes [to the Federal Rules of
Evidence] are not binding precedent and cannot change the plain meaning of
the law or rules, they are highly persuasive.” State v. Almanza, 304 Ga. 553,
560 n.6 (820 SE2d 1) (2018).
121
PROCEDURE – FEDERAL RULES OF EVIDENCE § 6294 (2d ed. Apr. 2022
update) (explaining that under Federal Rule 705, the trial court may
require disclosure of the basis for the expert’s opinion before cross-
examination in certain circumstances, including “where cross-
examination would be ineffective to reveal the defects in the expert’s
underlying facts and data in a manner that permits the jury to
properly weigh his opinion”). See also United States v. Lawson, 653
F2d 299, 302 (7th Cir. 1981) (holding that without a criminal
defendant’s access to the hearsay information relied upon by a State
expert witness, “effective cross-examination would be impossible,”
and explaining that Federal Rule 705 “recognizes this
requirement”). Indeed, to the extent that Georgia’s statutes
regarding pretrial discovery in criminal cases, see, e.g., OCGA §§ 17-
16-4 and 17-16-7, provide less information about the bases for expert
opinions than the federal rules, see, e.g., Fed. R. Crim. P. 16, Georgia
courts may need to resort more often to pretrial disclosure under the
authority of Rule 705.
Based on our review of the notes, it was reasonable for the trial
122
court to conclude that Dr. Diamond based his expert opinion, at least
in part, on information he obtained from Appellant’s answering
questions such as what he was doing during the drive from the
Chick-fil-A, if he was in a hurry that morning, and what time he
usually went to sleep and woke up compared to the day of Cooper’s
death. The State was entitled to know any information that
Appellant gave Dr. Diamond which helped form the expert’s opinion.
Accordingly, the trial court did not abuse its discretion when it
ordered pretrial disclosure of Dr. Diamond’s notes under Rule 705
as necessary for meaningful cross-examination.
(b) The three-dimensional model of the Tucson
As discussed in footnote 15 above, David Dustin, an expert in
three-dimensional (3-D) computer models, created a model of the
inside of the Tucson, which was shown to the jury as a
demonstrative aid. The laser and photographic scans used to create
the model were done after the car seat had been replaced in the
vehicle based on crime scene measurements and photographs, and a
doll created to represent Cooper was placed in the seat. Before trial,
123
Appellant objected to the use of this model, arguing that it was a
misleading re-creation. After a hearing at which Dustin testified
about the process used to create the model, the trial court ruled that
the model could be used, concluding that the evidence was “a
demonstrative aid for the jury, which will help [the jurors]
understand spatial proximities, distance, and the testimony of
witnesses” in a way not possible “with the use of photographic and
video evidence alone.”
At trial, first a detective trained in 3-D scanning who helped
create the model and then Dustin testified about the 3-D model.84
No limiting instruction was given, but it was made clear through the
testimony that the 3-D model was for demonstrative purposes only
84 During the cross-examination of the detective, Appellant pointed out
that in making the model, the car seat had been placed at the wrong incline.
After Appellant highlighted this discrepancy, the State asked the detective and
Dustin to redo the models with the corrected incline. New scans were
completed during the sixth week of trial, and a copy of the new 3-D model was
given to Appellant on the day after it was finished. Appellant objected to the
use of the new model, repeating the arguments made in his motion about the
original model and also arguing that the new model was a discovery violation.
The trial court ruled that the new model could be used. Although Appellant
reiterates his argument based on the State’s alleged discovery violation here,
we need not decide this issue because we do not expect it to recur if there is a
retrial.
124
and had been created after Cooper’s death from scans taken after
the car seat had been replaced in the vehicle based on crime scene
measurements and photographs. Appellant extensively cross-
examined Dustin about the limitations of the model and the ways in
which it differed from human sight. In denying Appellant’s motion
for new trial, the trial court ruled that the 3-D model was similar to
a crime scene diagram and concluded that the probative value of the
evidence – allowing the jury to see different angles of the Tucson and
its interior – was not substantially outweighed by the danger of
unfair prejudice, noting that the defense thoroughly cross-examined
Dustin.
The “general foundation requirement” for demonstrative
evidence is a showing that the conditions of the demonstration are
“so nearly the same in substantial particulars to afford a fair
comparison.” Rickman v. State, 304 Ga. 61, 64 (816 SE2d 4) (2018)
(citation and punctuation omitted). “‘[T]he trial court has broad
discretion to determine if the substantial similarity requirement has
been satisfied.’” Id. (citation omitted). Demonstrative evidence is
125
also governed by Rule 403 and so may be excluded if its probative
value is substantially outweighed by, among other things, the
danger of misleading the jury and considerations of the needless
presentation of cumulative evidence. See id.In this Court, Appellant argues that the 3-D model did not
meet the foundational requirement for demonstrative evidence
because Dustin, who did not examine the crime scene on the day of
Cooper’s death, could not testify that the model was an accurate
representation of the scene. However, the 3-D model was made from
scans of Appellant’s Tucson, and the detective and Dustin both
testified that the car seat was placed back in the Tucson based on
crime scene pictures and measurements. Thus, the trial court did
not abuse its discretion in concluding that the general foundation
requirement was met. See, e.g., Rickman, 304 Ga. at 62, 65 (holding
that the trial court did not abuse its discretion by admitting as
demonstrative evidence six photographs “taken at the actual
location of the shooting” in which “the same types of vehicles” were
put “in the same positions as the actual vehicles” involved in the
126
crimes based on surveillance video recordings of the crimes to help
show, in part, “where the vehicles and people involved were in
relation to each other”); Bramblett v. True, 59 Fed. Appx. 1, 10 (4th
Cir. 2003) (holding that a lack-of-foundation objection to a video
reenactment of a witness’s vehicle being passed by the defendant’s
truck would have been futile because the witness testified that in
the video, she again drove her vehicle down the same stretch of road
under lighting conditions similar to the day of the accident). 85
Appellant also argues that the probative value of the 3-D model
was minimal because there was other evidence of the space and
distances inside the Tucson, including photographs, video, and the
jury’s visit to view the Tucson. But the 3-D model was probative as
to the location of things within the Tucson, and although the jury
was presented with other evidence showing the interior of the
Tucson, we cannot say that it was an abuse of discretion for the trial
85The provisions of Georgia’s Evidence Code governing the admission of
demonstrative evidence mirror those in the Federal Rules of Evidence. See
Rickman, 304 Ga. at 64.
127
court to conclude that there was probative value in the State’s
presenting the evidence in a 3-D format allowing, for example,
witnesses to show different angles of the Tucson as they testified.86
Finally, Appellant argues that any probative value of the 3-D
model was substantially outweighed by the risk of misleading the
jury because the model offered viewing angles that were not possible
for the human eye. But the differences between human sight and
the 3-D model were elicited during cross-examination of Dustin, and
the jury could compare the model to the photographs and video of
what the Tucson looked like on the day of Cooper’s death. Thus, the
3-D model was not likely to mislead the jury. See id. at 65 (holding
that the fact that the demonstrative photographs were taken during
the day, whereas the crimes happened at night, was addressed by
the jury’s ability to compare the staged photographs with the crime
scene photographs, and “[b]oth the officer who testified and the trial
86 Appellant contends that the 3-D model should not have been admitted
at trial because no witness testimony actually was aided by the exhibit. We
need not decide this issue because we do not expect it to recur if there is a
retrial.
128
court made it clear that the photographs did not show what actually
happened”). See also In re Air Crash Disaster, 86 F3d 498, 539 (6th
Cir. 1996) (holding that a computer-animated video depicting the
operation of a circuit breaker at issue was not inadmissible under
Rule 403, noting that the witness “could have drawn the same
information on a sketch pad” and at least six witnesses testified
about the circuit breaker’s design). 87
(c) Questions related to statements made in search warrant
affidavits
At trial, to support the argument that the police unfairly
rushed to the conclusion that Appellant maliciously killed Cooper,
Appellant sought to question both Detective Stoddard and Detective
Shawn Murphy about certain allegedly false statements that
87 Appellant also argues that the doll that Dustin created to represent
Cooper was misleading because its eyes were open and it was not slouching in
the car seat, and no one could testify that this was how Cooper looked in the
seat during the day of his death. We note that Appellant filed a separate motion
objecting to the doll and its “unnaturally wide open” eyes; that motion was
denied, and Appellant has not challenged that order directly on appeal. In any
event, the trial court reasonably concluded that the presence of the doll was
not unduly prejudicial because the jury was shown several pictures of Cooper
after his death and heard the testimony discussed in Division 1 (b) above about
how Cooper sat in the car seat during the time leading up to his death.
129
Detective Murphy made in affidavits for search warrants for
Appellant’s electronic devices, including that Appellant had
“researched” “child deaths inside vehicles and what temperature it
needs to be for that to occur.” The affidavits at issue were written by
Detective Murphy based on information given to him by police
officers other than Detective Stoddard. The State objected to this
line of questioning for both witnesses, and the trial court sustained
the objections on the grounds that the affidavits were hearsay, were
not written and sworn to by Detective Stoddard, and were not based
on Detective Murphy’s personal knowledge.
Because Detective Stoddard did not write the affidavits or have
any personal knowledge about why Detective Murphy wrote what
he did, the trial court did not abuse its discretion in ruling that
Appellant could not ask Detective Stoddard about the statements.
See OCGA § 24-6-602 (“A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the
130
witness has personal knowledge of such matter.”). 88 However, the
court did abuse its discretion when it prevented Appellant from
asking Detective Murphy about the statements. Appellant’s purpose
in questioning Detective Murphy about the statements was simply
to establish that the statements, which other evidence had shown to
be false, were made in the warrant affidavits, which was relevant to
Appellant’s argument that the police rushed to judgment against
him. Thus, Detective Murphy’s testimony would not have been
inadmissible as hearsay, because his prior statements were not
offered to prove the truth of the matter asserted but rather the
falsity of the statements. See OCGA § 24-8-801 (c) (defining
“hearsay” as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted”). And the testimony would have
been based on Detective Murphy’s personal knowledge of whether
88 Appellant was allowed to ask Detective Stoddard if Appellant had done
any internet searches for “any video involving a vet or a hot car or anything
like that,” and the detective responded that he had not seen any evidence of
that. On redirect examination, he testified that it would be untrue if anyone
said that Appellant “Googled hot car searches, death, anything like that.”
131
he made those statements in the warrant affidavits. Accordingly, the
trial court abused its discretion in limiting Appellant’s examination
of Detective Murphy in this way. See, e.g., United States v. Williams,
865 F3d 1328, 1343 (11th Cir. 2017) (“When a statement is entered
into evidence to show its falsity, it is not hearsay.”); United States v.
Costa, 31 F3d 1073, 1080 (11th Cir. 1994) (“The government offered
the statement not for its truth, . . . but rather to show its falsity. By
showing, through the introduction of other evidence, that Costa lied
to his interrogators, the government sought to create an inference of
Costa’s guilt.”).89
7. Conclusion
This is a widely known case of the sort that leads to fervent
opinions based on pretrial publicity, which indeed required a change
of venue for trial, and impressions based on media coverage of
certain aspects of the trial. The truth is often more difficult to
89 OCGA § 24-8-801 “is materially identical to Federal Rule of Evidence
801,” so we may “look for guidance to federal case law applying the federal
rule.” Westbrook v. State, 308 Ga. 92, 102 (839 SE2d 620) (2020) (citation and
punctuation omitted).
132
determine when it must be based on the law as applied to properly
admitted evidence. We were not at the trial, and based only on the
cold record before us, we cannot say for sure what was going through
Appellant’s mind when he shut the Tucson’s door on the morning of
June 18, 2014, and sealed Cooper’s fate. We do not know whether
Appellant planned and executed the horrific murder of his 22-
month-old son by leaving him to suffer and slowly die in a hot
vehicle, or rather if Appellant made a tragic, fatal mistake by
forgetting that the child whom by almost all accounts he loved and
cherished was in the back seat. Appellant’s intent had to be
determined by the jurors who saw and heard all of the evidence, with
any reasonable doubt resolved in his favor. Based only on the
evidence that was properly admitted regarding the alleged crimes
against Cooper, it would be a difficult and close decision.
But as we have explained above, the jury also heard and saw
an extensive amount of improperly admitted evidence. The jury
heard several days’ worth of testimony from a dozen witnesses about
Appellant’s extramarital (and sometimes illegal) sexual activities,
133
saw hundreds of lewd (and sometimes illegal) sexual messages that
Appellant exchanged beginning in 2013 with numerous young
women and girls, and were given nine full-page color photographs of
Appellant’s erect penis that ensured that the jurors did not miss the
point that he was a repulsive person. Three sex crimes that
Appellant committed against a 16-year-old girl were actually
presented to the jury for verdicts (which were obviously guilty).
Much of this evidence was at best marginally probative as to
the alleged offenses against Cooper, and much of it was extremely
and unfairly prejudicial. We cannot say that it is highly probable
that the improperly admitted evidence did not affect the guilty
verdicts that the jury returned on the counts involving Cooper. If
Appellant is to be found guilty of those crimes, it will need to be by
a jury not tainted by that sort of evidence. For these reasons, we
reverse Appellant’s convictions for the counts related to Cooper.
Judgment affirmed in part and reversed in part. All the
Justices concur, except Bethel, LaGrua, and Colvin, JJ., who concur
in part and dissent in part.
134
BETHEL, Justice, concurring in part and dissenting in part.
As the majority opinion correctly determines, the evidence
presented by the State in regard to the crimes against Harris’s son,
Cooper, was constitutionally sufficient to support his convictions for
those crimes under Jackson v. Virginia. I also agree with the
majority’s assessment that, as uncontested by Harris, the evidence
presented at trial as to the crimes committed against C. D. was
overwhelming. I therefore join Divisions 1 and 2 of the majority
opinion in full. 90
However, I take issue with the conclusion reached in Divisions
3 and 4 of the majority opinion and its conclusion that Harris’s
convictions for the crimes against Cooper must be reversed for the
reasons stated therein. Like the majority, I would rule that the
“extensive evidence” of Harris’s “extramarital and sometimes illegal
sexual activities” was relevant. Maj. Op. at 53. But I part ways with
the majority opinion in its determination that the trial court abused
90I also see no basis in the other enumerations of error raised by Harris
for reversal of the judgment in this case. To the extent the majority opinion
addresses those enumerations, I join those portions of the opinion as well.
135
its discretion by not limiting or excluding the presentation of some
of this evidence under the balancing test in Rule 403 and the related
balancing provision in Rule 404 (b) and by not severing the crimes
against C. D. from the crimes against Cooper for trial. I therefore
respectfully dissent as to Divisions 3 and 4 of the majority opinion.
As noted in the opinion of the Court,
[t]he State’s theory was that [Harris] intentionally and
maliciously abandoned his child to die a slow and painful
death trapped in the summer heat, so that [Harris] could
achieve his dream of being free to further his sexual
relationships with women he met online.
Maj. Op. at 1. Because details relating to the cause and manner of
Cooper’s death were largely undisputed, intent (informed by motive)
was the only real question in the case.91 I believe the State was
entitled to introduce, in detail, evidence of the nature, scope, and
extent of the truly sinister motive it ascribed to Harris. For that
reason, I believe the trial court did not abuse its discretion in
allowing the State to produce the evidence challenged by Harris in
91 In his opening statement, the prosecutor told the jury that whether
Harris intended to kill Cooper was “the single question in this case[.]”
136
this appeal.
This is, in many ways, an extraordinary case. In the dozens of
murder cases this Court considers each year, rarely do we see a case
in which diametrically opposed conclusions could be reached by fair-
minded jurors from the same evidence. Indeed, as the majority
acknowledges in the conclusion of its opinion, a fair reading of the
cold appellate record presents logical, common-sense cases both for
Harris’s guilt and his innocence. Was he the heartless, sex-crazed
killer of the State’s telling? Or a deeply flawed but loving father
overwhelmed by the demands of life and work whose worst day
resulted in his most costly mistake? And while that ultimate
question is not before us, that view of the evidence and the
arguments presented by Harris and the State greatly informs my
own consideration of the questions raised in this appeal.92
92 I also note that the police initially planned to charge Harris with felony
murder predicated on cruelty to children. See Maj. Op. at 33. It was only after
the discovery of extensive evidence of Harris’s online activities and sexual
history that he was charged with malice murder. While not legally conclusive,
it is instructive to me that the State’s decision to charge Cooper’s death as an
intentional and malicious killing only occurred once it discovered evidence
137
Here, to secure a conviction against Harris for Cooper’s
murder, the State was tasked with presenting evidence that
satisfied each element of the charged offenses beyond a reasonable
doubt. As noted above, intent was the lynchpin of the case. The
question then becomes how the State could go about proving that a
father intended to kill his child.
In light of the theory it presented to the jury, the State had to
prove that Harris’s sexual appetites, proclivities, and compulsions
were so strong and uncontrolled, and his level of personal discontent
so unmitigated, that he would take the seemingly unfathomable step
of intentionally and maliciously leaving his young son in a car to
“cook” in the heat of the Georgia summer, as the State argued to the
jury. In my view, the extraordinary task of proving the nature and
allegedly limitless extent of those desires and the level of depravity
asserted by the State gave the trial court the discretion to admit a
suggesting that Harris had a motive to kill Cooper. Prior to that discovery, I
presume, the State did not believe it was in possession of proof beyond a
reasonable doubt that Harris acted with malice.
138
detailed and wide-ranging body of evidence concerning those
issues. 93
In many murder cases, evidence of Harris’s sexual activities,
conversations, and desires (including his habit of sending and
soliciting pictures of genitalia) would likely all be excluded as
impermissible character evidence, as such evidence would rarely be
probative of any issue in the case. But in my view, evidence on those
issues was not introduced in this case merely to cast Harris in a bad
light; that evidence went to the heart of the State’s case. Likewise,
the specific evidence that Harris solicited prostitutes on multiple
occasions, unlawfully contacted minors, and engaged in explicit
sexual conversations (including the aforementioned solicitation and
93 The majority opinion notes that the State’s theory of motive in this
case is somewhat belied by the fact that “a man does not normally enhance his
ability to have sexual relationships with women by killing his young child” and
that “the impediments that marriage places on sexual relationships with
multiple partners are normally overcome by cheating, divorce, or in criminal
situations, murdering one’s spouse, not one’s child.” (Emphasis supplied.) Maj.
Op. at 76. For me, these observations simply further the point that the State
was attempting to demonstrate that Harris’s obsessions were themselves
abnormal and that proving that his strategy for overcoming impediments to
fulfilling his hedonistic sexual desires — killing Cooper — required evidence
of something more than a “normal” motive to kill.
139
exchange of sexual photographs) with them, while likely
inadmissible in most murder cases, was probative of various facets
of Harris’s “double life” that the State was attempting to portray in
its case-in-chief.94
Of course, the majority opinion is correct that the evidence in
question painted Harris in a bad light and made him appear to be a
person of low moral character. In fact, the evidence presented by the
State repeatedly invited the jury to dislike Harris for the person he
is and for the person he apparently dreamed of becoming. In
94 The majority opinion notes that
[a]lleged motives that lack a specific, logical link to the alleged
crimes, and instead define the alleged motive in a generic fashion,
are often actually improper arguments focusing on the defendant’s
bad character rather than a particular motive for the charged
crimes.
Maj. Op. at 73-74. I completely agree, but I do not believe that the evidence at
issue here fits that description. The majority opinion subsequently cites a
number of cases in support of the point outlined above, see id. at 74-75, but
each of those cases (Strong, Carpenter, Kirby, and Thompson) discuss this point
in relation to “propensity” evidence rather than bad-character evidence. I do
not view any of the evidence presented as being propensity evidence, as the
State presented nothing showing that Harris had any inclination to use
violence either generally or against Cooper specifically (in fact, there was
significant evidence to the contrary). And while much of the evidence regarding
Harris’s sexual communications and behaviors doubtlessly reflected poorly on
his character, it did not do so improperly, as that evidence was clearly linked
(in the State’s theory) to the alleged crimes.
140
addition to the physical evidence surrounding Cooper’s death and its
“discovery” and the evidence of Harris’s reactions to learning that
his son had just died, much of the evidence the State presented
regarding Harris’s motive was based on drawing out the details of
his “double life.” The State explicitly sought to paint him as a
discontent sex-addict who felt tied down by the burdens and
restrictions of career and family. Using Harris’s own words from
messages exchanged with various women, the State theorized that
Harris sought to “escape” those self-imposed prisons and move on to
another life filled with exciting sexual encounters and other new
adventures.95 Moreover, because Harris asserted from the very
beginning that Cooper’s death was simply a tragic accident, the
State leaned heavily on evidence of the graphic, sexual nature of
Harris’s online discussions, details of his extramarital sexual
95 In the prosecutor’s opening statement, he described Harris’s online
communications and sexual activities as his “obsession,” which prompted him
to take “risk after risk after risk.” The prosecutor returned to this theme in his
closing argument, telling the jury that Harris “closed the door on [Cooper’s]
little life because of his own selfishness[,] because of what was more important
to him, his obsession and his other life.” The prosecutor went on: “[T]his isn’t
a case about an adult hating a child. . . . It’s just that he loved himself and his
other obsession more than that little boy.”
141
relationships (past, present, and — as he appeared to hope —
future), and other matters of that sort to demonstrate that, along
with divorcing his wife, murdering his son was one of a series of
“escalating” actions Harris took to break free from a life he
increasingly did not want.96 In this way, the State cast Cooper’s
death as the culminating chapter in a sordid and tragic story.
I respect the view expressed in the majority opinion that the
risk of unfair prejudice associated with the evidence presented by
the State to advance this theory outweighed its probative value. I
simply do not share it. When considering the universe of possible
motives that would cause a father to subject his child to the fate
Cooper met, the overwhelming majority would reflect a depraved
heart and low character. And a simple desire to have sexual
encounters with women does not seem like a sufficient motive to
murder your own child. Thus, the State needed to show the nature,
scope, and extent of Harris’s sex life and desires and prove a motive
96 The record suggests these actions progressed from online
conversations to seeking in-person meetings, to eventually soliciting
prostitutes when the earlier efforts were unsuccessful.
142
a reasonable juror would accept as the basis for forming an intent to
take such actions.
As the majority opinion rightly notes, with regard to whether
Harris maliciously killed his child, evidence merely suggesting or
indicating that Harris engaged in explicit sexual conversations
online, that he cheated on his wife, and that he engaged in criminal
activity involving minors in the months and years leading up to
Cooper’s death is not particularly strong or helpful to the State. But
the details of such activity and its extent, particularly in the words
Harris himself used to describe his life, his unfulfilled sexual
desires, and so on, are the primary source of this evidence’s value to
the State’s case. Each additional Whisper post, each additional
demand for sex, each additional complaint about his station in life
added to the portrait of Harris the State almost certainly had to
paint in order to convince the jury that he would act on these desires
by murdering his son.
Of no less importance to the issues before us, with regard to
each piece of evidence now at issue, the trial court ruled pursuant to
143
Rule 403 that the probative value of such evidence to the issues in
the case was not substantially outweighed by any danger of unfair
prejudice from its admission. See Maj. Op. at 61. This Court owes
significant deference to the trial court’s determinations regarding
the admission or exclusion of evidence at trial under Rule 403 and
its balancing of the interests addressed by Rule 403. See Wilson v.
State, 312 Ga. 174, 190 (2) (860 SE2d 485) (2021). We have also
repeatedly recognized that “Rule 403 is an extraordinary remedy,
and that in reviewing the admission of evidence under Rule 403,
[courts] look at the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its
undue prejudicial impact.” (Citation omitted.) Id; see also Anglin v.
State, 302 Ga. 333, 337 (3) (806 SE2d 573) (2017) (“[I]n a criminal
trial, inculpatory evidence is inherently prejudicial; it is only when
unfair prejudice substantially outweighs probative value that the
rule permits exclusion.” (citation and punctuation omitted;
emphasis in original)). Given the nature of the remedy afforded by
Rule 403, through which a trial court can exclude relevant evidence
144
from being presented to the jury, we have repeatedly cautioned that
such remedy should be only used “sparingly.” Olds v. State, 299 Ga.
65, 70 (2) (786 SE2d 633) (2016). Moreover, we have also noted that
“the major function of [Rule 403] is to exclude matter of scant or
cumulative probative force, dragged in by the heels for the sake of
its prejudicial effect[.]” (Citation and punctuation omitted.) Kirby v.
State, 304 Ga. 472, 480 (4) (819 SE2d 468) (2018). “[I]n close cases,
balancing under Rule 403 should be in favor of admissibility of the
evidence.” Pike v. State, 302 Ga. 795, 801 (4) (809 SE2d 756) (2018).
Applying these highly deferential and oft-cited principles to the
case before us, I see no abuse of that discretion in regard to the trial
court’s admission of any of the evidence at issue in this appeal under
Rule 403. For instance, with regard to evidence of Harris’s
communications regarding sexual activities before the date of
Cooper’s death, the majority opinion concludes, rather summarily,
that the State’s introduction of “records of all of the messages”
between Harris and his paramours “went well beyond what was
necessary to establish the context of [Harris’s] relationships.”
145
(Emphasis in original.) Maj. Op. at 71. As noted above, I respectfully
take a different view of this evidence and its place in the State’s case.
In my view, it was not enough for the State to simply establish for
the jury the “context” of Harris’s relationships with the women he
communicated with online, Maj. Op. at 70, or to establish, in general
terms, “the first link” in a chain of reasoning by which Cooper’s
murder would advance Harris’s goal of sleeping with “many women.”
Maj. Op. at 76. Instead, the majority opinion emphasizes that only
“some amount” of the evidence of Harris’s communications and
activities was probative in establishing Harris’s motive to kill
Cooper. However, with regard to evidence of his communications, for
instance, the majority declines to
decide precisely how much evidence the State should have
been permitted to offer to support [the] initial point of its
motive theory in order to conclude that a large amount of
the evidence that was presented – especially the more
prejudicial evidence of vulgar discussions – was needlessly
cumulative and should have been excluded under Rule
403.
Maj. Op. at 82.
But in my view, it was the graphic, sordid details of Harris’s
146
extramarital activities and relationships and the manner in which
Harris repeatedly communicated with females (including teenagers)
that lent the evidence its power in this case as the State attempted
to persuade the jury that Harris had attempted to clear barriers to
acting on his sexual desires by, among other things, killing his child.
Stated differently, the context of the relationships and activities was
less damning than their extent. In light of that extraordinary theory,
the State had a clear prosecutorial need for the evidence. See, e.g.,
Worthen v. State, 306 Ga. 600, 606 (832 SE2d 335) (2019) (explaining
that the prosecutorial need for the evidence at issue was high
because “[t]he evidence against Appellant, aside from the other acts
evidence, . . . was far from overwhelming. In particular, without the
other acts evidence, it is unclear what motive Appellant would have
had to engage [the victims] in the first place, much less to
intentionally encourage [Appellant’s co-defendant] to pull out a gun
and start shooting at [the victims] in a crowded park.”).
I also view the volume and detail of the evidence as being more
probative than the majority apparently does, and I certainly do not
147
view the evidence as having the extremely limited probative value
that characterizes other evidence which we have determined should
have been excluded under Rule 403 as a matter of law. Compare
Robinson v. State, 308 Ga. 543, 551-552 (2) (b) (842 SE2d 54) (2020)
(determining that portion of arrest video that “did not have even the
remotest shred of relevance” should have been excluded by the trial
court under Rule 403); Jackson v. State, 306 Ga. 69, 78 (2) (b) (820
SE2d 142) (2019) (noting “lack of any real prosecutorial need” as
part of determination that evidence of prior shooting should have
been excluded under Rule 403); Brown v. State, 303 Ga. 158, 162 (2)
(810 SE2d 145) (2018) (discussing that, in light of defendant’s self-
defense claim, the probative value of certain other-acts evidence
“was extremely low at best” and had “nothing to do with his reason
for shooting the victim[.]” (citation and punctuation omitted)). And
while some of the evidence can fairly be characterized as cumulative,
I am not prepared to say, as a matter of law, that the presentation
of such evidence by the State was “needless” such that it was an
abuse of discretion to admit it. See Rule 403 (allowing the trial court
148
to exclude relevant evidence based on “considerations of . . . needless
presentation of cumulative evidence”).
Moreover, while it is clear to me that the evidence of messages
containing lewd and derogatory language was prejudicial to Harris,
I do not view that evidence as being unfairly so in light of the State’s
theory of the case. See Heade v. State, 312 Ga. 19, 27 (3) (860 SE2d
509) (2021) (finding no abuse of discretion in admission of evidence
under Rule 403 where “the prejudicial impact of [the evidence],
while significant, was not unfair”). Nor is it fair to say that those
messages were introduced by the State or valuable to the State
merely for their shock value or that the average juror would be
shocked by the evidence presented. See Smith v. State, 302 Ga. 717,
724 (3) (808 SE2d 661) (2017) (determining that trial court did not
abuse its discretion under Rule 403 by permitting the State to
introduce recording of phone call containing derogatory language
used by defendant and noting that “[u]nfortunate though it may be,
the words that [appellant] used have lost much of their shock value
in contemporary culture.” (citation omitted)).
149
And even though some of the evidence offered by the State,
such as the enlarged copies of photographs Harris took of his erect
penis and sent to various women, were vulgar and may have been of
“scant evidentiary value,” Morgan v. State, 307 Ga. 889, 898 (3) (d)
(838 SE2d 878) (2020), it is not clear to me that, even in that
instance, the value of those pictures to the State’s case was
substantially outweighed by the danger of unfair prejudice and that
admitting them was an abuse of discretion. Compare Strong v. State,
309 Ga. 295, 310-312 (2) (845 SE2d 653) (trial court abused
discretion by admitting “extensive other-act evidence” under Rule
403 where State’s need for evidence to prove intent was “extremely
low” and probative value of evidence was “wholly outweighed by its
extreme and unfair prejudicial impact”).97
97 The majority opinion notes in its footnote 71 that the State has
conceded that there was no basis for admitting the enlarged photographs. I
first note in response that we are not bound by the State’s concession of error.
“The State cannot concede error where there is none. This Court must
determine for itself whether error exists.” Brown v. State, 264 Ga. 803, 806
(450 SE2d 821) (1994) (Carley, J., concurring specially). Moreover, I am not
persuaded by the opinion of the attorney for the State regarding the value and
need for the enlarged photographs in relation to any unfair prejudice their
presentation to the jury may have caused. As noted elsewhere, I recognize at
150
In my view, while denying that it has done so, the majority
draws, as a matter of law, an artificial and (to me) invisible line it
then determines was crossed by the detailed nature of the evidence
presented in this case. But the task of drawing that line in light of
the needs and circumstances of a given case through “[t]he
application of the Rule 403 test is a matter committed principally to
the discretion of the trial courts,” not this Court. Olds, 299 Ga. at 70(2). Because Harris has not presented a compelling argument that
the trial court’s rulings under Rule 403 were beyond its considerable
discretion, I would decline to reverse his convictions for the crimes
against Cooper on that basis.98
I also part ways with the majority in Division 4 of its opinion.
I agree with the majority that the question of whether evidence
regarding Harris’s communications with C. D. was admissible both
least some prosecutorial need and probative value in such evidence in light of
the State’s clear need to prove Harris’s motive to kill Cooper, and I do not
believe the trial court abused its discretion by admitting the photographs.
98 It seems worth noting that I do not believe the trial court would have
abused its discretion by limiting or excluding this evidence had it determined
that the balance fell the other way.
151
in regard to the crimes he allegedly committed against her and in
regard to crimes against Cooper is “intertwined.” But for many of
the same reasons stated above, I see no abuse of the trial court’s
discretion in denying the motion to sever.
As discussed above, the State’s narrative of this case was that
Harris’s numerous sexual dalliances and escapades and his desire
to act on ongoing sexual communications and solicitations with
other women were the driving force behind his decision to kill
Cooper. Evidence that some of that conduct, particularly in regard
to C. D., was criminal fit neatly with the State’s overall theory of its
case against Harris and was, in fact, part of the State’s narrative
regarding Harris’s motive to murder his son.99 While it would not
have been an abuse of discretion to sever the charges regarding C.
D., in light of the relationship between the crimes against C. D. and
those against Cooper, the trial court did not abuse its discretion by
99 In the prosecutor’s opening statement, he noted that “on that day,
while his child was cooking to death, [Harris] was also messaging a girl he met
when she was 16, who was 17 at the time, still trying to get pictures of her
vaginal area from her.” The prosecutor also described the charges in the case
as being “interrelated.”
152
denying the motion to sever. See Moon v. State, 312 Ga. 31, 59 (5)
(860 SE2d 519) (2021) (“[W]here the joinder is based upon the same
conduct or on a series of acts connected together or constituting
parts of a single scheme or plan, severance lies within the sound
discretion of the trial judge since the facts in each case are likely to
be unique.” (citation omitted)). I likewise see no abuse of the trial
court’s discretion in determining that severance was unnecessary to
achieve a fair determination of Harris’s guilt or innocence as to each
offense, even in light of the number of offenses charged and the
complexity and volume of evidence presented by the State. See id.And because I view that evidence as being admissible in regard to
the charges relating to both C. D. and Cooper, I disagree with the
majority opinion’s conclusion that severance was required. 100 See
Maj. Op. at 96-103.
The legal issues involved in this case, particularly the
100 Because I see no error in the trial court’s admission of the evidence
under Rule 403 or its denial of the motion to sever, I would not reach the
question of whether these alleged errors were harmless, which the majority
addresses in Division 5 of its opinion.
153
application of Rules 403 and 404 by trial courts and the proper
review of such decisions by our Court, are sometimes among the
most vexing legal questions we face in the criminal cases that come
before us. These rules provide great flexibility to trial courts to
assess the needs of a given case, and our opinions in this space
attempt to define the scope of discretion, draw lines, and establish
guideposts by which other Georgia courts can make principled and
consistent rulings. Those are worthy goals for a court of last resort,
particularly one that must itself regularly grapple with these issues
and apply its own prior rulings on direct review.
I fear, however, that in this case, the majority has substituted
its own judgment for that of the trial court without due
consideration for the theory of the case the State sought to advance,
the way it chose to charge and prosecute Harris, the State’s need for
the evidence at issue, and its probative value. The majority opinion
thus suggests a larger role for this Court in reviewing decisions to
admit evidence under Rule 403 than has traditionally been the case
by my understanding. For those reasons and the others stated
154
above, I respectfully dissent from Divisions 3 and 4 of the opinion of
the Court and, thus, its ultimate judgment.
I am authorized to state that Justice LaGrua and Justice
Colvin join in this opinion concurring in part and dissenting in part.
155