State v. Anderson

• Decision Date: 19 August 2022
• Docket Number: A22A0731
• Parties: THE STATE v. ANDERSON.
• Court: Georgia Court of Appeals

THE STATE v. ANDERSON.

No. A22A0731

Court of Appeals of Georgia, Fourth Division

August 19, 2022

DILLARD, P. J., MERCIER and MARKLE, JJ.

MARKLE, JUDGE

After Chester Anderson was charged with two counts of armed robbery, the State sought to admit at trial evidence of Anderson's conviction for another armed robbery under OCGA § 24-4-404 (b) (Rule 404 (b)). Following a hearing the trial court granted Anderson's motion in limine to exclude any evidence of the other robbery. The State now appeals, arguing that the trial court erred by finding the evidence inadmissible. For the reasons that follow, we vacate the trial court's order, and remand the case for further proceedings.

"We review a trial court's decision regarding Rule 404 (b) evidence for an abuse of discretion." State v Atkins, 304 Ga. 413, 417 (2) (819 S.E.2d 28) (2018). Although we recognize the broad range of conclusions a trial court may reach in the exercise of its discretion, it abuses that discretion when it applies an incorrect legal standard. State v. Jackson, 351 Ga.App. 675, 677 (832 S.E.2d 654) (2019).

So viewed, the record shows that in May 2017, Anderson entered an O'Reilly Autoparts store with a weapon, approached the counter, and demanded the cashier give him the money from the register. The cashier complied, and, as Anderson fled, the cashier shot him. Id. Police obtained Anderson's blood from the scene, and located Anderson in the hospital, where police were able to interview him twice. During the second interview, Anderson admitted that he robbed the O'Reilly store, and also stated that he had robbed another O'Reilly store in December 2016.^[1]Anderson explained that he needed the money for hospital bills and college. He also confirmed that he wore a hoodie and gloves, but no mask. Anderson was later convicted of the 2017 robbery, and sentenced to life imprisonment. We affirmed that conviction in an unpublished opinion. See Anderson v. State, 359 Ga.App. XXVI (2021).

After he was indicted for the 2017 robbery, but before he was convicted, Anderson was charged in a separate indictment with robbing an O'Reilly store in December 2016, which forms the basis of the case currently before us. In prosecuting Anderson for the 2016 robbery, the State sought to admit the 2017 conviction as other acts evidence under Rule 404 (b).^[2] Anderson moved to exclude any reference to other robberies, including the 2017 O'Reilly robbery for which he had been convicted.

At a hearing, the State argued that there had been a string of robberies committed in a similar way, with the perpetrator wearing similar clothing, and that in his second interview, Anderson admitted that he committed the December 2016 robbery. Thus, the State contended that the evidence of the 2017 robbery conviction was relevant to show identity, motive, modus operandi, plan, and preparation. The State also sought to admit a redacted version of the first interview, in which Anderson stated he was desperate for money, that O'Reilly was an easy target, and that he wore a hoodie and glasses.

The trial court ultimately granted Anderson's motion to exclude the evidence, finding it was not intrinsic, and that even if it was potentially relevant to identity or motive, "upon a common sense assessment of all of the circumstances surrounding the extrinsic acts and the act charged, . . . the danger of unfair prejudice outweighs the probative value of the evidence." (Emphasis supplied.) The State timely filed this appeal.

In related enumerations of error, the State argues that the trial court erred in excluding the other acts evidence because the trial court did not consider all of the purposes for which the evidence was submitted, misapplied the balancing test by neglecting to find the prejudice substantially outweighed any probative value, and failed to balance the Rule 403 factors in favor of admitting the evidence.^[3] We conclude that the trial court abused its discretion. Thus, we vacate the trial court's order excluding the evidence, and remand the case for further proceedings.

Under Rule 404 (b),

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

As we have explained, the rule favors the admission of evidence. Wright v. State, 362 Ga.App. 867, 876 (2) (870 S.E.2d 484) (2022). Nevertheless, evidence relevant to a proper purpose may still 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." (Emphasis supplied.) OCGA § 24-4-403 (Rule 403); Wright, 362 Ga.App. at 876-877 (2).

For evidence to be admissible under Rule 404 (b),

the State must make a showing that: (1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant's character; (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question.

(Citation omitted.) State v. Jones, 297 Ga. 156, 158-159 (1) (773 S.E.2d 170) (2015);^[4]see also Allen v. State, 310 Ga. 411, 414 (2) (851 S.E.2d 541) (2020); Wright, 362 Ga.App. at 877 (2).

Under the first prong of this test, the trial court must consider whether the evidence is relevant under OCGA § 24-4-401. Relevant evidence is "evidence having 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." Heard v. State, 309 Ga. 76, 84-85 (3) (b) (844 S.E.2d 791) (2020). "This is a binary question - evidence is either relevant or it is not." Id. at 85 (3) (b).

Under the second prong, the trial court applies Rule 403 and must "undertake in each case a considered evaluation of the proffered justification for the admission of such evidence and make an independent determination of whether the probative value of the evidence is substantially outweighed by" the danger of unfair prejudice. (Citation and punctuation omitted.) Jones, 297 Ga. at 163 (3). "In weighing the probative value of other acts evidence, a court may consider a number of factors, including (1) prosecutorial need, (2) overall similarity of the other acts and the acts charged, and (3) the temporal remoteness of the other acts." Thompson v. State, 308 Ga. 854, 859 (2) (843 S.E.2d 794) (2020).

The balancing test applies on a case-by-case basis, and "requires a common sense assessment of all the circumstances surrounding the extrinsic act and the charged offense." (Citation and punctuation omitted.) Green v. State, 352 Ga.App. 284, 290 (2) (e) (834 S.E.2d 378) (2019). We have explained, however, that

the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. 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. And probative value depends as well upon the need for the evidence. When the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence.

(Citation and punctuation omitted.) Wright, 362 Ga.App. at 877-878 (2).

"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. Thus, the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly." (Citations and punctuation omitted.) Wright, 362 Ga.App. at 878 (2). "Obviously, the reason for such caution is that relevant evidence in a criminal trial is inherently prejudicial, and, as a result, Rule 403 permits exclusion only when unfair prejudice substantially outweighs probative value." (Citations and punctuation omitted; emphasis supplied.) Williams v. State, 328 Ga.App. 876, 879 (1) (763 S.E.2d 261) (2014). As a result, when we consider Rule 403 issues on appeal, we "must look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact." (Citation and punctuation omitted.) Wright, 362 Ga.App. at 878 (2).

In this case, we must conclude that the trial court abused its discretion both in its application of the first prong of Rule 404 (b) and in its analysis of Rule 403's balancing test. With regard to the first prong, the trial court assumed the evidence could be relevant to identity or motive, but the trial court does not appear to have considered its admissibility to show modus operandi, plan, or preparation. This omission alone requires us to remand the case. Cf. Olds v. State, 299 Ga. 65, 77 (3), n. 18 (786 S.E.2d 633) (2016) (remanding for further consideration where Court of Appeals did not consider all of the purposes for which the evidence was potentially admissible under Rule 404 (b)).

Turning to the second prong, the trial court abused its discretion when it applied an incorrect legal standard to its Rule 403 analysis. First, the trial court seems to have ignored the prosecutorial need for this evidence, given Anderson's own concession at the hearing that the evidence was the only link between him and the 2016 robbery. See Brannon v. State, 298 Ga. 601, 608 (4) (783 S.E.2d 642) (...