Clarke v. State

• Decision Date: 08 September 2020
• Docket Number: A20A1013
• Citation: 356 Ga.App. 580,848 S.E.2d 192
• Parties: CLARKE v. The STATE.
• Court: Georgia Court of Appeals

356 Ga.App. 580

848 S.E.2d 192

CLARKE

v.The STATE.

A20A1013

Court of Appeals of Georgia.

September 8, 2020

Lawrence Lewis, Lawrenceville, for Appellant.

Andrea Alabi, Daniel J. Porter, Lawrenceville, for Appellee.

Brown, Judge.

Following a jury trial, Oniel Clarke was convicted of two counts each of theft by receiving stolen property, OCGA § 16-8-7, and possession of a motor vehicle with identification removed, OCGA § 40-4-22. Clarke appeals from the judgment of conviction and the denial of his motion for new trial, contending that the trial court erred in admitting (1) other act evidence that Clarke attempted to purchase a vehicle from a Florida dealership in 2004, using fake identification; (2) evidence of three other "stolen" vehicles belonging to Clarke that were not the subject of the indictment; and (3) a recorded interview between Clarke and law enforcement when the State failed to meet its disclosure obligations under OCGA § 17-16-4. Clarke also contends that he received ineffective assistance of counsel. We affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citation and punctuation omitted.) McKinney v. State , 276 Ga. App. 75, 622 S.E.2d 427 (2005). So viewed, the evidence shows that on August 7, 2013, Barrow County and Gwinnett County law enforcement received calls from a special agent with the National Insurance Crime Bureau about a 2003 Infiniti G35 with a "cloned" vehicle identification number (VIN). Law enforcement confirmed that the VIN on the Infiniti was false; that the Infiniti had been reported stolen in Gwinnett County in 2007; that Clarke was listed as the insured on the Infiniti; and that two additional vehicles — a 2008 Lexus LX570 and a 2008 BMW 550i — were insured in his name. A Gwinnett County investigator checked the VINs on the Lexus and BMW 550i, and both "check digit[s] came back incorrect."¹ When Gwinnett County police went to Clarke's residence the following day to investigate further, Clarke drove up in the Lexus and the BMW 550i was in his garage; police confirmed that the VINs on both vehicles had been falsified, and that both vehicles had been reported stolen. The Lexus had been reported stolen from an Illinois car dealership on November 15, 2008, and the BMW 550i had been reported stolen from a Massachusetts car dealership in 2010. Both vehicles had Pennsylvania tags, but the state name was covered with black electrical tape.² Clarke told police that he purchased the Lexus from a dealership in New York for $24,000, and the BMW 550i from an auto collision repair business of which he was a partner for $42,000. Testimony at trial established that the Lexus and BMW 550i were valued at $73,954 and $39,275, respectively. Clarke could not provide any paperwork for the BMW 550i, and told police that he submitted all paperwork concerning the Lexus to the Pennsylvania Department of Transportation ("the PDOT"). Police impounded the two vehicles, and arrested Clarke.

Investigators subsequently discovered that both vehicles were registered in Pennsylvania, and that Clarke had submitted paperwork to the PDOT for verification of the VINs on both vehicles.³ The paperwork submitted to the PDOT for each vehicle had a purchase date that preceded the date of theft. With regard to the Lexus, an alleged bill of sale reflected that it was purchased for $24,000 from Hennessy Lexus of Atlanta on August 24, 2008, three months before the vehicle was reported stolen, and that Clarke submitted the request for "correction or verification" of the VIN on March 17, 2009. The request listed the "cloned VIN." The sales manager at Hennessy Lexus of Atlanta testified that the bill of sale was "definitely" not a "bill of sale from our dealership"; that the sales person listed on the document had never worked at the dealership; and that the serial number on the bill of sale did not match up as having been in the dealership's inventory at any time.

With regard to the BMW 550i, Clarke submitted to the PDOT, a Georgia Certificate of Title, which lists the purchase date as July 26, 2008, two years prior to the theft date of the vehicle; however, the Georgia Department of Revenue did not have any record of the title because it had never been registered in Georgia. Clarke also submitted to the PDOT a VIN verification form, which listed the cloned VIN. On November 26, 2016, the PDOT sent to Clarke a letter stating that his application to register the BMW 550i could not be processed because "an incorrect [VIN] was recorded on the out of state proof of ownership. Legible tracings of both the [VIN] plate affixed to the vehicle, as well as the engine number plate are required."

1. In his first and third enumerations of error, Clarke contends that the trial court abused its discretion under OCGA § 24-4-404 (b) ("Rule 404 (b)") by admitting (a) evidence of his Florida convictions as well as (b) evidence of three additional vehicles registered to him, all of which had cloned VINs. We disagree.

Under Rule 404 (b), "[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith." However,

such other-act evidence is admissible for other purposes, including to prove intent, motive, and absence of mistake or accident. The party offering evidence under Rule 404 (b) must show three things: (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.

(Citation and punctuation omitted.) Strong v. State , ––– Ga. –––– (2) (a), 845 S.E.2d 653 (2020). As to the first required showing, OCGA § 24-4-401 defines "relevant evidence" as that evidence which "ha[s] 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." OCGA § 24-4-401. "This is a binary question — evidence is either relevant or it is not." Strong , ––– Ga. at –––– (2) (a), 845 S.E.2d 653. OCGA § 24-4-403 ("Rule 403") governs the second required showing and provides that, "[r]elevant 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 or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403 "is designed 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.) Strong , ––– Ga. at –––– (2) (a), 845 S.E.2d 653. "The third part of the test is a preliminary question of fact for the trial court. Other acts evidence may be admitted if the court concludes that the evidence is sufficient for the jury to find by a preponderance of the evidence that the other act was committed." (Citation and punctuation omitted.) Id. "A trial court's decision to admit other acts evidence under [Rule 404 (b) ] will be overturned only where this is a clear abuse of discretion." Sloan v. State , 351 Ga. App. 199, 208 (2) (e), 830 S.E.2d 571 (2019).

(a) 2004 Florida conviction. Approximately two weeks before trial, the State filed a notice of intent to introduce evidence of prior bad acts, namely Clarke's 2004 nolo contendere plea in Florida to second degree grand theft, criminal use of personal identification information, and possession of fictitious driver's license or identification card. During a hearing on the matter, the State argued that the evidence was relevant to show Clarke's knowledge, intent, absence of mistake, motive, opportunity, and planning. Specifically, the State argued that the evidence showed that Clarke knows how to use fraud and deceit, as well as fake paperwork or other documentation, to obtain a vehicle that does not belong to him; that Clarke was not just an innocent victim, purchasing vehicles that he had no "clue" were stolen; and all the vehicles were high-end vehicles. Clarke objected, arguing that the evidence was prejudicial and in no way relevant; the State was simply offering it to impugn his character. In support of these arguments, Clarke pointed out that the convictions were 13 years old, with "no real similarities" to the charges in this case because they did not involve the use of false paperwork, or receipt of a stolen vehicle. The trial court ruled that the evidence was admissible for the limited purposes of knowledge, intent, and absence of mistake or plan, but not to prove opportunity or motive, and gave a limiting instruction before the evidence was admitted.

At trial, a police officer with the City of Plantation, Florida, testified that on January 3, 2004, he was called to an Acura dealership because Clarke was attempting to purchase a 2004 Acura TL, using a New York driver's license in the name of Alan Curry, but containing Clarke's photograph. Clarke had signed a credit application and purchase agreement using Alan Curry's name, social security number, and address. Police searched Clarke's vehicle and found a second New York driver's license in another name, which turned out to be fake. Police arrested Clarke, and later determined that Alan Curry was a real person. The State introduced a certified copy of the convictions.

On appeal, Clarke argues that the evidence served little legitimate purpose other than to place his character in issue in violation of Rule 404 (b). He claims that the prior...