State v. Jones

• Citation: 773 S.E.2d 170,297 Ga. 156
• Decision Date: 01 June 2015
• Docket Number: No. S14G1061.,S14G1061.
• Parties: The STATE v. JONES.
• Court: Supreme Court of Georgia

297 Ga. 156
773 S.E.2d 170

The STATE
v.
JONES.

No. S14G1061.

Supreme Court of Georgia.

June 1, 2015.

773 S.E.2d 170

Jessica K. Moss, Sol.-Gen., Barry W. Hixson, Laura A. Janssen, Asst. Sols.-Gen., for appellant.

Chestney Law Firm, Rebecca T. Kozycki; Filipovits Law Firm, Jeffrey R. Filipovits, for appellee.

773 S.E.2d 171

Gregory W. Edwards, Dist. Atty., Carroll R. Chisholm, Jr., Sol.-Gen., Denise D. Fachini, Dist. Atty., Carlton T. Hayes, Barry E. Morgan, Sol.-Gen., Ashley Wright, Dist. Atty., D. Victor Reynolds, Dist. Atty., Michael S. Carlson, John R. Edwards, Donald P. Geary, John S. Melvin, Andrew J. Ekonomou, Asst. Dist. Attys.; Isenberg & Hewett, Ryan L. Isenberg, Melvin L. Hewitt, Jr. ; William C. Head, P.C., William C. Head, Jennifer G. Ammons, amici curiae.

Opinion

THOMPSON, Chief Justice.

297 Ga. 156

We granted a writ of certiorari in this appeal to consider whether, under OCGA § 24–4–404(b) (“Rule 404(b)”) of the new Georgia Evidence Code, evidence of appellee Michael Jones' 2005 conviction for driving under the influence of alcohol to the extent it was less safe for him to drive was admissible in a subsequent prosecution for driving under the influence. For the reasons stated below, we find that evidence of Jones' prior conviction was admissible at trial pursuant to Rule 404(b), reverse the contrary decision of the Court of Appeals in Jones v. State, 326 Ga.App. 658, 757 S.E.2d 261 (2014), and remand to that court with direction.

At approximately 11:45 p.m. on January 21, 2011, a Cherokee County deputy sheriff conducted a traffic stop of Jones and his vehicle

297 Ga. 157

after Jones was observed driving at a speed above the posted speed limit. While speaking with Jones, the officer detected an odor of alcohol and noticed Jones' eyes were red and watery. The officer asked Jones to exit the vehicle and inquired whether he had been drinking. Jones twice denied having consumed any alcohol, but after he failed the horizontal gaze nystagmus test and exhibited multiple clues of intoxication on field sobriety tests, he admitted he drank two beers earlier in the evening. Based on his observations and Jones' performance on the field tests, the officer arrested Jones. Jones subsequently agreed to submit to state-administered breath tests which produced readings of 0.147 and 0.139.

Jones was charged with driving with a blood alcohol level of 0.08 grams or more (DUI per se), see OCGA § 40–6–391(a)(5), driving while under the influence of alcohol to the extent it was less safe for him to drive (DUI less safe), see OCGA § 40–6–391(a)(1), and speeding, OCGA § 40–6–181. In June 2011, the State filed a notice of intent to introduce evidence of Jones' prior conviction of DUI less safe, a charge to which he had pled guilty. Consistent with this Court's precedent regarding the purposes for which evidence of other acts could be offered, the State asserted that Jones' prior DUI conviction was being offered for the purpose of showing Jones' “bent of mind, course of conduct [,] identity, knowledge, lack of mistake, motive, and intent [,] ... [and] willingness ... to operate a motor vehicle after his ... ability to do so safely had been compromised by the ingestion of intoxicants.” See Williams v. State, 261 Ga. 640, 642 n. 2, 409 S.E.2d 649 (1991). Anticipating that trial would not commence until after January 1, 2013, the effective date of Georgia's new Evidence Code, the State in December 2012 filed an amended notice stating its purpose for offering the prior conviction evidence included, but was not limited to, “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See OCGA § 24–4–404(b). The State at a pretrial hearing further narrowed the purposes for which such evidence was being offered, asserting that it was relevant to show Jones' intent and knowledge. The trial court admitted it for these limited purposes.

After a jury found Jones guilty of all charges, the trial court merged the DUI less safe charge into the charge of DUI per se and sentenced Jones. The Court of Appeals reversed Jones' DUI per se conviction, holding that evidence of Jones' prior conviction should not have been admitted at trial because it was not relevant to, or probative of, the commission of the charged crimes because they were general intent crimes and “no culpable mental state was required to commit the crime[s] in the first place.” Jones, supra, 326 Ga.App. at 663, 757 S.E.2d 261. After reviewing the record and the

773 S.E.2d 172

purposes for which this

297 Ga. 158

evidence was offered, we find the Court of Appeals erred by determining that Rule 404(b) precluded its admission into evidence because it was not relevant.

1. Because Jones' trial was held after January 1, 2013, the new Georgia Evidence Code governs our resolution of the issue in this appeal. Rule 404(b) of the new Code provides:

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....

Even relevant evidence offered for a proper purpose under Rule 404(b) may be excluded under OCGA § 24–4–403 (“Rule 403”), however, “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. These provisions track their federal counterparts, see Rules 403 and 404(b) of the Federal Rules of Evidence, and for this reason, we have adopted the same three-part test used by the Eleventh Circuit Court of Appeals to determine admissibility of other acts evidence under the federal rules to determine the admissibility of evidence of other acts under our own Rules 403 and 404(b).¹ See Bradshaw v. State, 296 Ga. 650, 656, 769 S.E.2d 892 (2015), quoting United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.2008). See also Ga.L.2011, p. 99, § 1 (not codified) (stating the legislative intent to adopt the Federal Rules of Evidence as interpreted by the United States Supreme Court and Circuit Courts of Appeals, as of January 1, 2013, with any conflicts among the Circuit Courts of Appeals to be resolved by following the Eleventh Circuit Court).

Under this test, in order to be admissible, the State must make a showing that: (1) evidence of extrinsic, or other, acts is relevant to

297 Ga. 159

an issue other than a defendant's character, see Rule 404(b) ; (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. See Bradshaw, supra. See also United States v. Edouard, 485 F.3d 1324, 1344(II) (c) (11th Cir.2007); United States v. Delgado, 56 F.3d 1357, 1365(III) (B) (11th Cir.1995). In no case may evidence of other acts be admitted for the sole purpose of proving the character of the accused to show that he acted in conformity therewith. See OCGA § 24–4–404(b). A trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion. See Bradshaw, supra. See also United States v. McNair, 605 F.3d 1152, 1203 n. 69 (11th Cir.2010).

2. Our consideration of the first prong of the Bradshaw test begins then with an analysis of what evidence is relevant as it pertains to Rule 404(b). We find the applicable standard in OCGA § 24–4–401, which deems evidence relevant if it has “any tendency

773 S.E.2d 173

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.”² Rule 404(b) explicitly recognizes the relevance of other acts evidence offered for a permissible purpose and, at the same time, prohibits the admission of such evidence when it is offered solely for the impermissible purpose of showing a defendant's bad character or propensity to commit a crime. Rule 404(b), therefore, is, on its face, an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered into evidence. See United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.2003) (describing Federal Rule 404(b) as a rule of inclusion); 2 Weinstein's Federal Evidence § 404.20 (2014) (Federal “

297 Ga....