O.C.G.A. § 24-1-103 (2019)

Annotations

Cross references. Rulings on evidence, Fed. R. Evid. 103.

Law reviews. For article with annual survey on trial practice and procedure, see 73 Mercer L. Rev. 265 (2021).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PLAIN ERROR HARMLESS ERROR WAIVER APPLICATION General Consideration Renewal of objection not required as prior objection preserved issue for review. - Trial counsel was not ineffective for failing to renew prior objections to other acts evidence, as the objection had been preserved for appeal. Bell v. State, 366 Ga. App. 743, 884 S.E.2d 129, 2023 Ga. App. LEXIS 74 (2023). Contemporaneous objection required for violation of ruled-upon motion in limine. - Because O.C.G.A. § 24-1-103 is specifically patterned after Fed. R. Evid. 103(b), and the Eleventh Circuit interprets that provision, based on the Advisory Committee Notes, as requiring a contemporaneous objection when a ruled-upon motion in limine regarding the admissibility of evidence is allegedly violated at trial, it is clear that the adoption of this Code section abrogated the contrary holding announced in Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982), that no contemporaneous objection is required to preserve the alleged error when a party violates such a ruled-upon motion in lim-

ine. Williams v. Harvey, 311 Ga. 439, 858 S.E.2d 479, 2021 Ga. LEXIS 256 (2021). Substance of the evidence apparent from the context. - Although a drug distribution defendant failed to make an offer of proof as to the evidence regarding a detective’s credibility that was excluded, the court found that the substance of the evidence was sufficiently apparent from the attorneys’ discussion to preserve the defendant’s argument for appellate review as permitted under O.C.G.A. § 24-1103(a)(2). Williams v. State, 332 Ga. App. 546, 774 S.E.2d 126, 2015 Ga. App. LEXIS 353 (2015). Plain Error Plain error standard applies to evidence but not closing arguments. - Georgia has adopted the plain error standard with respect to rulings on evidence; however, this rule does not apply to a prosecutor’s closing statements, which are not evidence, and are reviewed under prior case law providing for waiver of issues that were not objected to at trial.

Gates v. State, 298 Ga. 324, 781 S.E.2d 772, 2016 Ga. LEXIS 68 (2016). Under a plain error review, since the defendant failed to object at trial, the trial court did not abuse the court’s discretion by allowing various autopsy photographs to be admitted into evidence at trial because the photos were not particularly gory or gruesome and were relevant to show the nature and location of the victim’s injuries, which corroborated the account of the shooting given by the eyewitnesses who saw the defendant. Benton v. State, 301 Ga. 100, 799 S.E.2d 743, 2017 Ga. LEXIS 326 (2017). In a malice murder case, pretermitting whether the trial court erred in admitting a statement that the victim had made to the victim’s wife before the shooting, any error in the admission of the statement was harmless as the evidence of the defendant’s guilt was overwhelming, and it was highly probable that the admission of the victim’s hearsay statement did not contribute to the verdict because, prior to the shooting, the defendant had the victim’s name stored as “the dead man” in the defendant’s cell phone; the defendant told an employee at the tire shop where the victim worked to tell the victim that the defendant was going to kill the victim; and, after the shooting, the defendant told officers that the defendant shot the victim. Perez v. State, 303 Ga. 188, 811 S.E.2d 331, 2018 Ga. LEXIS 146 (2018). Plain error review forfeited. - Trial court did not abuse the court’s discretion in declining to allow the appellant to impeach the accomplice’s hearsay statements to a friend with other, inconsistent hearsay statements that were later made to an investigator and with the plea bargain that the accomplice later made with the state because the appellant did not object at trial to the court not charging the jury on that point, thus, the appellant forfeited the claim. Cross v. State, 309 Ga. 705, 848 S.E.2d 455, 2020 Ga. LEXIS 534 (2020). Admission of no contest plea not plain error. - After the defendant was found guilty of driving under the influence of alcohol to the extent that the defendant was less safe to drive (DUI), the defendant could not show error, much less plain

error, in the admission of evidence pertaining to the administrative license suspension (ALS) stipulation because the stipulation entered in the ALS hearing that the defendant would plead guilty to DUI in exchange for the return of the defendant’s driver’s license was relevant to, though certainly not dispositive of, the charge that the defendant was driving under the influence of alcohol, and its probative value was not substantially outweighed by its prejudicial effect. Adams v. State, 344 Ga. App. 159, 809 S.E.2d 87, 2017 Ga. App. LEXIS 589 (2017), aff’d, 306 Ga. 1, 829 S.E.2d 126, 2019 Ga. LEXIS 383 (2019). Admission of other crimes, wrongs, or acts did not constitute plain error. - First defendant could not show plain error in the admission of the second defendant’s prior conviction for burglary and possession of tools of a crime as the trial court gave a limiting instruction that the evidence was relevant only to the charges against the second defendant; and the fact that the conviction had been overturned did not preclude the conviction’s admission. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132, 2019 Ga. App. LEXIS 254 (2019), cert. denied, No. S19C1274, 2019 Ga. LEXIS 860 (Ga. Dec. 23, 2019), cert. denied, No. S19C1275, 2019 Ga. LEXIS 890 (Ga. Dec. 23, 2019). Informing jury that witnesses were held in contempt for failing to testify not plain error. - Trial court did not plainly err by informing the jury that two witnesses were held in contempt for refusing to testify on behalf of the state because, even if the trial court’s remarks did give rise to some suggestion that the witnesses would point to the defendant as the perpetrator in the shooting of the victim, that suggestion was not at odds with the defense at trial as the defendant did not point to another perpetrator but claimed that the victim was accidentally shot while tussling with the defendant. Wallace v. State, 303 Ga. 34, 810 S.E.2d 93, 2018 Ga. LEXIS 75 (2018). Testimony as to hospital’s certification not plain error. - Testimony as to the hospital’s certification could not be said to have affected the appellant’s substantial rights by affecting the outcome of

Plain Error (Cont’d) the trial as the certification inspection took place two years before the events at issue, and the fact that the glide scope was not in its regular location, when it was presumably located during the earlier inspection, mitigated against a conclusion that the evidence that the hospital was inspected and certified resulted in a defense verdict. Thomas v. Alligood, 358 Ga. App. 703, 856 S.E.2d 80, 2021 Ga. App. LEXIS 113 (2021). Plain error review not available. - Because the appellant failed to seek any investigation into or hearing about the juror communication or its effect on other jurors before the trial court acceded to the appellant’s request to excuse the juror and seat an alternate, the asserted error by the appellant was not preserved for ordinary appellate review and plain error review did not apply since no statutory basis existed for application of that review standard. Miller v. State, 309 Ga. 549, 847 S.E.2d 344, 2020 Ga. LEXIS 522 (2020). Comment by trial court not plain error. - Trial court’s statements regarding the location of the shooting did not improperly express the court’s opinion about whether venue and the shooting had been proven and the defendant did not show plain error because the trial court framed the court’s statement in terms of allegations and never mentioned the venue for the charge; and the defendant did not show that the court’s statement orienting the prospective jurors to the case had any effect on the outcome of the defendant’s trial as the state presented evidence that the victim was shot, including the surveillance recording showing the shooting and expert testimony from a medical examiner; and the prosecutor elicited undisputed testimony from several witnesses that the crimes occurred in Fulton County. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646, 2018 Ga. LEXIS 459 (2018). Expert testimony in child molestation case not plain error. - Trial court did not commit plain error by allowing the testimony of the state’s expert witnesses on forensic interviewing as the descriptions by both witnesses were not tied to

the substance of the victim’s interview as a whole or used to describe the substance of the victim’s allegations. Hamby v. State, 358 Ga. App. 105, 853 S.E.2d 874, 2021 Ga. App. LEXIS 11 (2021). Failure to play entire recording of police interview not plain error. - Defendant did not show that the trial court plainly erred by not allowing the defendant to play the entire recording of a witness’s police interview because the trial court allowed the defendant to play an additional segment of the recording to show that the witness’s prior statements to the police might have been affected by medication; and the defendant did not identify any other specific statements in the portions of the recording that the state played for the jury which needed to be explained by playing the rest of the witness’s interview. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646, 2018 Ga. LEXIS 459 (2018). Replaying audiovisual recording of traffic stop not plain error. - Following the trial court admitting audiovisual recordings of the traffic stop, parts of which were played for the jury, playing the recording again during deliberations did not violate the continuing-witness rule because the continuing-witness rule did not apply since the audiovisual recording was replayed to the jury a single time in a controlled environment, the courtroom, with all parties and the trial judge present. Riley v. State, 356 Ga. App. 290, 846 S.E.2d 617, 2020 Ga. App. LEXIS 431 (2020), overruled, Hill v. State, 360 Ga. App. 143, 860 S.E.2d 893, 2021 Ga. App. LEXIS 318 (2021). Admitting evidence of witness’s compensation not plain error. - In a products liability case, the prejudicial effect of admitting evidence of a car manufacturer’s CEO’s compensation did not so dramatically outweigh its probative value that it required reversal of the jury verdict; the actions of the CEO in allegedly interfering with a government recall of the vehicle made the CEO’s credibility and bias relevant. Chrysler Group, LLC v. Walden, 303 Ga. 358, 812 S.E.2d 244, 2018 Ga. LEXIS 154 (2018). Exclusion of evidence of victim’s gang membership not plain error. - Trial court did not commit plain error by excluding evidence that the first victim

was a member of a street gang because any such affiliation was irrelevant and had no connection to the shooting; and the defendant provided nothing to indicate that the motivation for the shooting, or anything related to the shooting for that matter, was related to street gang activity. Walton v. State, 303 Ga. 11, 810 S.E.2d 134, 2018 Ga. LEXIS 71 (2018). Detective’s testimony not plain error. - Detective’s answers to the defendant’s questions regarding the surveillance recording of the shooting did not violate the ultimate issue rule, and the defendant could not show harm because evidence of the defendant’s guilt was compelling; and the defendant could not show that the complained-of comments likely affected the outcome of the defendant’s trial as, although it might have been improper for the detective to share the detective’s subjective belief that the defendant was the shooter seen on the surveillance recording with the jury explicitly, that the detective believed the defendant was the shooter seen on the surveillance recording would have come as no surprise to the jury. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646, 2018 Ga. LEXIS 459 (2018). Admission of other crimes, wrongs, or acts did not constitute plain error. - In an armed robbery case, pretermitting whether admission of evidence of the defendant’s prior armed robbery conviction amounted to clear or obvious error, the admission of that evidence did not constitute plain error that affected the defendant’s substantial rights because the defendant testified and admitted that the defendant pled guilty to the prior charge; although the defendant claimed the defendant acted in self-defense, eyewitnesses testified that they saw no weapons on the victims, saw the defendant rifling the victims’ pockets, and heard one of the victims pleading with the defendant not to kill the victim; and the evidence indicated that both victims were shot from behind, undermining the defendant’s claim of selfdefense. Nations v. State, 303 Ga. 221, 811 S.E.2d 292, 2018 Ga. LEXIS 137 (2018). Admission of racism and racial slurs not plain error. - Court did not err in admitting into evidence testimony

concerning the defendant’s bad character for racism and the defendant’s use of racial slurs since defense counsel made the decision to use strategically this evidence to bolster the defendant’s claim of selfdefense and to undermine the state’s case. The record shows that the defendant, by choosing to incorporate the evidence of the defendant’s racism into the defendant’s defense theory instead of objecting to it, intentionally relinquished any claim that the trial court erred in admitting that evidence and, therefore, any claim of error failed at the first step of plain error review. Griffin v. State, 309 Ga. 860, 849 S.E.2d 191, 2020 Ga. LEXIS 661 (2020). Statement firearm pulled in manner akin to armed robbery not plain error. - Assuming that the trial court clearly erred in admitting into evidence testimony that the manner the firearm was pulled was akin to that used in armed robbery, there was no plain error because it was a brief statement and the evidence against the defendant was strong and, thus, the defendant failed to show that the reference affected the defendant’s substantial rights or likely affected the outcome of the trial. Huff v. State, 315 Ga. 558, 883 S.E.2d 773, 2023 Ga. LEXIS 21 (2023). Testimony defendant held gun “gangster style” did not amount to plain error. - Assuming that the trial court clearly erred in admitting into evidence testimony that the defendant held the gun “gangster style,” the defendant could not show plain error because the defendant could not satisfy the third prong, requiring the defendant to demonstrate that the outcome of the trial court proceedings likely was affected. given that the comment was brief and the jury viewed the video recording of the entire incident. Huff v. State, 315 Ga. 558, 883 S.E.2d 773, 2023 Ga. LEXIS 21 (2023). Use of prior inconsistent statements did not constitute plain error. - Defendant did not establish plain error because the recording of the witness’s police interview was admitted to impeach the witness, not to bolster the detective; the defendant did not identify any admitted prior statements that were outside the scope of the witness’s direct examination;

Plain Error (Cont’d) the witness had some recollection of the relevant events; and, in light of the compelling evidence presented at trial, the defendant did not establish that the errors probably affected the outcome of the defendant’s trial. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646, 2018 Ga. LEXIS 459 (2018). Psychologist’s testimony on whether defendant knew right from wrong not plain error. - Trial court did not commit plain error allowing a psychologist’s testimony because the defendant failed to make an affirmative showing that a different outcome would have occurred in light of the presumption of sanity as the admissible evidence showed the defendant could distinguish right from wrong at the relevant time and the defendant failed to draw any connection between the defendant’s mental illness and an (asserted) inability to distinguish right from wrong. Croyle v. State, 360 Ga. App. 157, 860 S.E.2d 844, 2021 Ga. App. LEXIS 314 (2021). Harmless Error Admission of medical records harmless. - Even if the trial court erred by admitting the medical records of a non-party treating physician during the medical malpractice claim against the patient’s oncologist, the error was harmless because the altered medical record alleging that the patient was noncompliant had no bearing on the claims that the oncologist breached the standard of care by failing to follow up on the abnormal PET scan and noting in the record that there was no evidence of disease. RossStubblefield v. Weakland, 359 Ga. App. 523, 859 S.E.2d 502, 2021 Ga. App. LEXIS 231 (2021). Exclusion of evidence on spousal abuse constituted harmless error. - Pretermitting whether the trial court erred in ruling that the defendant’s family members’ statements regarding the victim’s abuse of the defendant were inadmissible, any error was harmless as it was highly probable that the exclusion of the statements did not contribute to the verdicts because the defendant offered a sub-

stantial amount of evidence that clearly showed the victim, the defendant’s husband, had abused the defendant quite severely on numerous occasions; and the state presented evidence that substantially undermined the defendant’s battered person syndrome defense. Smith v. State, 309 Ga. 240, 845 S.E.2d 598, 2020 Ga. LEXIS 463 (2020). Admission of rape shield evidence harmless error. - In the defendant’s trial for child molestation against three victims, the trial court erred in allowing the state to introduce evidence of one victim’s prior sexual activity involving the victim’s molestation of the victim’s two step-sisters; this evidence was inadmissible under the Rape Shield Statute, O.C.G.A. § 24-4-412, even if introduced by the state for the purpose of showing the effects of the defendant’s molestation on the victim. However, the error was harmless. White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019). Harmless error when cumulative evidence admitted. - Trial court did not abuse the court’s discretion by admitting evidence from a witness that the defendant had put a hit out on the witness because the evidence was cumulative of other evidence and, thus, any error in the admission of the evidence was harmless. Anglin v. State, 302 Ga. 333, 806 S.E.2d 573, 2017 Ga. LEXIS 890 (2017). In the defendant’s trial for violating the defendant’s oath of office as coroner and theft by deception, the admission of a death certificate of one of the nursing home patients whose death the defendant had falsely billed the county for investigating was harmless because it was cumulative of the pronouncement of death that was admitted as part of another exhibit. Fortner v. State, 350 Ga. App. 226, 828 S.E.2d 434, 2019 Ga. App. LEXIS 273 (2019). Given that the medical examiner’s challenged testimony was largely cumulative of the state’s expert’s testimony as to the effects of alcohol consumption, the defendant could not establish that the medical examiner’s testimony likely affected the outcome of the defendant’s trial; thus, the defendant did not meet the defendant’s burden of showing plain error in that

regard. Butler v. State, 363 Ga. App. 753, 871 S.E.2d 902, 2022 Ga. App. LEXIS 189 (2022). Any error in admitting the gun and the bloody clothes evidence was harmless as that physical evidence tying the defendant to the crimes would have been merely cumulative of the defendant’s admission that the defendant shot the victims and had no bearing on the defendant’s claim that the defendant shot the victims in self-defense; and it was highly probable that its admission did not contribute to the verdicts. Wheeler v. State, 314 Ga. 484, 877 S.E.2d 565, 2022 Ga. LEXIS 229 (2022). No plain error as to trial court allowing testimony by the lead detective that a person who died before trial had made a positive identification of defendant from a photographic lineup as any error was harmless beyond a reasonable doubt since other witnesses also selected defendant in a photographic lineup and identified him at trial as the shooter. Williams v. State, No. S23A0203, 2023 Ga. LEXIS 106 (Ga. May 16, 2023). Harmless error in admission of investigator’s testimony. - Assuming that the lead investigator’s testimony about the direction in which one of the bullets that struck the victim traveled was erroneously admitted, the error was harmless as the jury reasonably rejected the defendant’s claims of self-defense and voluntary manslaughter because the evidence of the defendant’s guilt showed that the defendant, who was jealous of the victim and had threatened to make the victim disappear, approached the victim, pulled out a gun, and fired four shots at the victim, who turned to run and pulled out a gun only after the victim had been shot. Furthermore, the defendant did not contend that the prosecutor emphasized or even mentioned in the objected to testimony during closing argument. Saxton v. State, 313 Ga. 48, 867 S.E.2d 130, 2021 Ga. LEXIS 732 (2021), cert. denied, 142 S. Ct. 1461, 212 L. Ed. 2d 548, 2022 U.S. LEXIS 1805 (2022). Admission of detective’s comment that “defendant was going to prison” was harmless error. - Even assuming that the detective’s comment that the de-

tective thought the defendant was going to prison should have been redacted from the video recording of the defendant’s interview by the police, its admission was harmless because, considering the strength of the properly admitted evidence of the defendant’s guilt and the context of a police interview in which the defendant claimed that the defendant had nothing to do with the victim’s death, the jury was highly unlikely to have been swayed by the detective’s passing comment; and the jury could not have believed that the defendant had already been tried and convicted based on a statement made during a police interview played for the jury during the defendant’s trial. Tanner v. State, 303 Ga. 203, 811 S.E.2d 316, 2018 Ga. LEXIS 141 (2018). Harmless error in allowing state’s demonstration. - Even if the trial court abused the court’s discretion in allowing the state’s demonstration in which one of the prosecutors beat a punching bag at the direction of the detective 100 times (the number of blows the detective estimated the victim had received), any error was harmless as any effect the demonstration might have had on the jury would have been minimal compared to the effect of the properly-admitted evidence before the jury because the evidence of the defendant’s guilt was overwhelming; the placement and extent of the victim’s bruises were well-documented by the medical examiner’s diagrams and multiple photographs; and the jury heard extensive medical and law enforcement testimony about the bruises. Williams v. State, 302 Ga. 147, 805 S.E.2d 873, 2017 Ga. LEXIS 816 (2017). Admission of bribery evidence constituted harmless error. - Improper admission of the testimony that the codefendant’s father attempted to influence the victim by bribing the victim into changing the victim’s account of what took place was harmless because it was highly probable that the error did not contribute to the jury’s verdict as, in addition to the victim’s testimony, the state presented evidence that a witness overheard the defendant say that the defendant wanted to rob someone; party guests looked at a co-defendant’s phone and saw text mes-

Harmless Error (Cont’d) sages that referenced a plan to commit a robbery; the defendant was seen with the co-defendant at the party by multiple witnesses; the ATM machine photographed the co-defendant making withdrawals; and the defendant lied about the defendant’s alibi. Belcher v. State, 344 Ga. App. 729, 812 S.E.2d 51, 2018 Ga. App. LEXIS 126 (2018). Harmless error in admission of out of court statement. - Statement of a co-defendant, who did not testify at trial, did not violate Bruton because the statement did not incriminate the defendant and, thus, the trial court did not err, much less plainly err, in admitting the statement as rather than implicate the defendant, the co-defendant instead refused to acknowledge having any information about who attacked and robbed the victim. Shelton v. State, 350 Ga. App. 774, 830 S.E.2d 335, 2019 Ga. App. LEXIS 401 (2019). Any error in admitting the adult son’s out-of-court statement that the defendant had previously threatened to kill the victim, the defendant’s wife, over bills was harmless because it was reasonable to expect jurors in deciding whether the defendant’s state of mind at the time of the shooting was consistent with malice, or was instead consistent with voluntary manslaughter, to have reached the same conclusion, even without the evidence of a single verbal threat on an unspecified date, based on the much stronger evidence of the defendant’s actions of following the victim from room to room as the victim attempted to flee and firing a gun at least eight times, hitting the victim six times. Clarke v. State, 308 Ga. 630, 842 S.E.2d 863, 2020 Ga. LEXIS 331 (2020). Admission of video recording from officers’ body cameras was harmless error. - After the defendant murdered the defendant’s two infant daughters by drowning the children, the last four minutes of the second video-recording from the officer’s body camera showing the officer’s effort to revive one of the children was unfairly prejudicial based on the video’s emotionally charged content; however, the error in admitting the evidence

was harmless as the video-recordings played a minor role in both the state’s case and the defendant’s insanity defense; and there was no likelihood that the jury would have weighed the case differently had the trial court excluded that last portion of the second video-recording. Morgan v. State, 307 Ga. 889, 838 S.E.2d 878, 2020 Ga. LEXIS 102 (2020). Admitting evidence of co-defendant’s prior arrest was harmless. - Given the evidence of the defendant’s guilt, the appellate court held that it was highly probable that the trial court’s error in admitting evidence of the co-defendant’s prior arrest did not contribute to the verdict against the defendant. Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162, 2019 Ga. App. LEXIS 494 (2019). Admission of other acts evidence in murder trial constittued harmless error. - Trial court abused the court’s discretion admitting 2005 shooting evidence of the appellant’s firing a handgun, but that error was harmless in light of the array of other strong evidence demonstrating the appellant’s guilt and considering it was an evidentiary error and not of constitutional dimensions; given the overall strength of the other evidence of the appellant’s guilt, the Georgia Supreme Court held that it was highly probable that erroneously admitted evidence of the 2005 shooting did not contribute to the jury’s verdict. Jackson v. State, 306 Ga. 69, 829 S.E.2d 142, 2019 Ga. LEXIS 392 (2019). Waiver Affirmative waiver of error. - Under a plain error review, the trial court did not err by allowing the detective to give hearsay testimony, without objection, regarding the specific location at which the victim’s purse was found as assuming a cognizable hearsay argument existed and the trial court erred, the defendant failed to show error affecting substantial rights considering an overwhelming evidence of guilt, including the defendant’s admission of throwing the victim over the bridge into a creek where the victim drowned. Tyner v. State, 305 Ga. 326, 825 S.E.2d 129, 2019 Ga. LEXIS 145 (2019). When the defendant was found guilty of, inter alia, driving under the influence

of alcohol to the extent that the defendant was less safe to drive, the defendant affirmatively waived any claim of error from the admission of the administrative license suspension agreement at the defendant’s criminal trial, so there was no plain error. Adams v. State, 306 Ga. 1, 829 S.E.2d 126, 2019 Ga. LEXIS 383 (2019). Trial court did not commit plain error by admitting an individual’s prior testimony from a preliminary hearing into evidence since the individual was unavailable and gave previous testimony because the defendant’s trial counsel intentionally relinquished any objection to the trial court’s ruling when counsel agreed with the state’s analysis and asked that all of the individual’s previous testimony be admitted. Davis v. State, 311 Ga. 225, 857 S.E.2d 207, 2021 Ga. LEXIS 132 (2021). Waiver based on failure to object. - Because the defendant’s only objection to the messages on a social media website was that they were prejudicial and not probative, the defendant waived any objection that the messages were not properly authenticated; however, even if the defendant did not waive the authentication objection, the victim’s mother properly authenticated the messages as the mother knew the defendant went by the name “Bucky Raw” because the mother had seen videos that the defendant had posted - and in which the defendant appeared - on another website using that alias; and the mother was able to discern the defendant’s identity through the conversations the mother had with the defendant on the accounts that the mother and the mother’s friend had set up. Cotton v. State, 297 Ga. 257, 773 S.E.2d 242, 2015 Ga. LEXIS 362 (2015). Application Admissibility of character evidence. - In a case in which the defendant was convicted of malice murder arising out of the beating death of a child, any error by the trial court in limiting the witnesses’ testimony about whether the defendant was good around children or about specific instances of good character was harmless because the jury heard testimony from seven character witnesses, and most of them testified to numerous

specific examples of the defendant’s conduct with children, including the deceased child and the child’s brother as well as the witnesses’ own children or grandchildren; the evidence presented by the witnesses on the defendant’s motion for new trial was largely cumulative of their trial testimony; and the evidence of the defendant’s guilt was very strong. Truett v. State, 311 Ga. 313, 857 S.E.2d 690, 2021 Ga. LEXIS 152 (2021). Admission of evidence of fighting at school. - Pretermitting whether the second defendant showed that the admission of the evidence of the second defendant’s no contest plea to disrupting a public school and affray was obviously erroneous, the second defendant did not even allege that the outcome of the trial was likely affected by its admission, especially considering that other, independent evidence was presented that the second defendant was involved in fighting at the second defendant’s public school. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399, 2018 Ga. LEXIS 184 (2018). Decision to use prior convictions improper. - In a child molestation case, the trial court erred in denying the defendant’s motion for new trial because it was an abuse of discretion to allow the prosecution to question the victim’s mother listing the defendant’s prior arrests for four offenses after the mother had already testified that the mother was aware of the defendant’s prior arrests and that the arrets did not change the mother’s opinion of the defendant’s character; further, the admission of specific instances of conduct was not harmless as the victim’s description of the defendant’s improper conduct varied over time, and the appellate court could not say that the defendant’s prior arrests did not enter into the jury’s evaluation of the defendant’s testimony and credibility. Gaskin v. State, 334 Ga. App. 758, 780 S.E.2d 426, 2015 Ga. App. LEXIS 725 (2015). When the defendant was convicted of three counts of computer or electronic pornography and child exploitation, the trial court did not plainly err in admitting a retired police officer’s testimony during the trial about the retired officer’s investigation of an alleged similar transaction

Application (Cont’d) in 2008 because it was undisputed that the relevant videos and photographs from the 2008 investigation were destroyed when the hard drive used in that investigation crashed; there was no evidence that the state intentionally destroyed the videos and photographs in bad faith; and the admission of the retired officer’s identification testimony did not affect the outcome of the trial as the evidence of the defendant’s guilt was overwhelming. Patch v. State, 337 Ga. App. 233, 786 S.E.2d 882, 2016 Ga. App. LEXIS 302 (2016). Evidence of serious violent acts improperly admitted to show intent. - Appellant’s convictions for felony murder, aggravated assault, and knife-possession offenses were reversed because the Georgia Supreme Court could not say that the trial court’s erroneous admission of the voluminous evidence that the appellant had previously committed multiple serious violent acts did not contribute to the guilty verdicts that the jury returned. Strong v. State, 309 Ga. 295, 845 S.E.2d 653, 2020 Ga. LEXIS 467 (2020). Admission of crime of aggravated assault. - There was no harm in admitting evidence that the defendant committed an aggravated assault in 1998 with the same gun that was used to kill the victim as there was overwhelming evidence that the defendant shot the victim and did not act in self-defense because there was a dispute between the defendant and the victim a few weeks before the shooting, and an argument between them on the day of the shooting; the witnesses testified that the victim did not have a gun; one eyewitness testified that the eyewitness saw the defendant keep shooting the victim even as the victim lay on the ground; and another witness testified that the defendant left the scene with something in the defendant’s hand, apologizing for what had just happened. Troy v. State, 312 Ga. 860, 866 S.E.2d 394, 2021 Ga. LEXIS 709 (2021). Admission of prior criminal activity to show involvement in criminal street gang. - Trial court did not commit plain error by permitting the state to

introduce evidence that the third defendant had been involved in prior criminal activity, including battery, theft of a vehicle, and disorderly conduct, for the limited purpose of showing the third defendant’s involvement in a criminal street gang. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399, 2018 Ga. LEXIS 184 (2018). Evidence of gang beating of murder victim. - Trial court did not abuse the court’s discretion by admitting into evidence a video recording of gang members beating the murder victim, who was a person that left the gang, despite the appellant not appearing in the video because the video of the gang beat-in was highly probative to establish the appellant’s motive for the murder and its relationship to gang activity. Carston v. State, 310 Ga. 797, 854 S.E.2d 684, 2021 Ga. LEXIS 19 (2021). Exclusion of alleged false accusation of child molestation. - In the defendant’s trial for child molestation arising out of viewing a pornographic video with the defendant’s four-year-old daughter, the trial court did not err in refusing to allow the defendant to crossexamine the child’s mother pursuant to O.C.G.A. § 24-6-608 regarding her own accusations of molestation against her stepfather, who had been acquitted, because the charges were not shown to be false. Further, any error was harmless. Douglas v. State, 340 Ga. App. 168, 796 S.E.2d 893, 2017 Ga. App. LEXIS 33 (2017). Exclusion of forensic toxicologist evidence. - In a malice murder case, the trial court did not commit plain error in excluding evidence from the forensic toxicologist regarding the drugs found in the victim’s system because, given that the defendant offered no evidence to support the defendant’s theory that the victim, the defendant’s wife, died because drugs in the victim’s system made the victim more susceptible to asphyxiation, the defendant could not show that there was a reasonable probability that, if the proffered testimony about drugs in the victim’s system had been admitted, the outcome of the trial would have been more favorable to the defendant. Williams v. State, 302 Ga.

147, 805 S.E.2d 873, 2017 Ga. LEXIS 816 (2017). Admission of nude photographs of mother in child custody case. - Although the trial court erred in admitting into evidence the nude photographs of the parent as those pictures were irrelevant, and there was no evidence that the children were aware of or exposed to the photographs or the production of the photographs, the parent could not show that the parent suffered prejudice as a result of their admission because the trial court did not reference or otherwise rely on the photographs or the parent’s conduct in making its factual findings in the child custody case. Mashburn v. Mashburn, 353 Ga. App. 31, 836 S.E.2d 131, 2019 Ga. App. LEXIS 662 (2019). Testimony regarding defendant’s failure to contact police. - In the defendant’s murder and rape trial, admission of testimony about the defendant’s failure to contact police after the victim’s death despite the defendant admittedly having sex with the victim, arguing with the victim, and pushing the victim the night of the victim’s death was not plain error because the defendant failed to point to clear controlling authority that admission of the testimony was a clear and obvious legal error. Simmons v. State, 299 Ga. 370, 788 S.E.2d 494, 2016 Ga. LEXIS 455 (2016). Reversible error occurred by admitting character evidence. - It was not plain error for the trial court to admit evidence of the acts of molestation committed against the first victim in a trial for offenses against the second and third victims because all three were sisters, the sisters all disclosed the defendant’s abuse to each other and tried to protect each other from the defendant, and the sisters jointly disclosed the abuse to their mother on more than one occasion. Vaughn v. State, 352 Ga. App. 32, 833 S.E.2d 723, 2019 Ga. App. LEXIS 536 (2019). Trial court committed reversible error by admitting character evidence and hold-

ing that the evidence was intrinsic to the alleged crimes of robbery as the defendant did not testify as to character and the character trait was not an essential element of a charge, claim, or defense; the text introduced a specific bad act, possible fraud, which was not allowed and the fact that the defendant may have attempted to defraud an apartment complex a week earlier did not arise out of the same transaction. Holt v. State, 352 Ga. App. 504, 835 S.E.2d 336, 2019 Ga. App. LEXIS 593 (2019). Admission of photographs. - Admission of one photograph of a murder victim in life with the victim’s spouse and grandchildren, as well as 15 photographs of the victim after the victim’s death from being hit and dragged by the defendant’s truck, was not plain error. Bozzie v. State, 302 Ga. 704, 808 S.E.2d 671, 2017 Ga. LEXIS 975 (2017). Admission of mall surveillance video. - Under plain error review, admission of mall surveillance video recordings was not in error because the state presented testimony of eyewitnesses to events to authenticate two mall surveillance video recordings. Moore v. State, 305 Ga. 251, 824 S.E.2d 377, 2019 Ga. LEXIS 95 (2019). Exclusion of evidence of victim’s drug use. - Trial court did not plainly err in granting the state’s motion to exclude evidence of the victim’s drug dealing and drug use as the jury heard testimony from multiple witnesses and the defendant that the victim tended toward violence and frequently directed that violence at the defendant; and, whether the victim’s drug use exacerbated such violence would be of marginal value to a jury that was aware of the victim’s violence toward the defendant. Thus, the trial court did not violate the defendant’s right to present a full and fair defense by excluding evidence of the victim’s drug use and related criminal history. Martin v. State, 306 Ga. 747, 833 S.E.2d 122, 2019 Ga. LEXIS 604 (2019).