Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-201 and former O.C.G.A. § 24-2-1 are included in the annotations for this Code section.

Evidence which is relevant may be excluded because the probative worth or value of the evidence is outweighed by the tendency of the evidence confuse the issues, or the jury. MacNerland v. Johnson, 137 Ga. App. 541, 224 S.E.2d 431 (1976) (decided under former Code 1933, § 38-201).

Trial court properly excluded the patients' request to admit photographs of their stillborn fetus in their medical malpractice action as there was no dispute that the fetus suffered from skin peeling, and while the issue was slightly probative in the case, it was substantially outweighed by the danger of unfair prejudice. Steele v. Atlanta Maternal-Fetal Med., P.C., 271 Ga. App. 622, 610 S.E.2d 546 (2005), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009) (decided under former O.C.G.A. § 24-2-1).

When evidence of other crime admissible.

- Trial court's ruling that the other-acts evidence would not be admitted was vacated because the appellate court could not discern whether the trial court considered whether the defendants had taken affirmative steps to withdraw intent as an element to be proved by the state or whether it compared the state of mind involved in the extrinsic offenses with that involved in the charged offenses before finding that the other-acts evidence constituted nothing more than inadmissible propensity evidence. State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).

In the defendant's DUI trial, the state offered evidence concerning the defendant's December 2011 DUI for the valid purpose of proving the defendant's knowledge and intent, and the probative value of the 2011 DUI was not substantially outweighed by the danger of unfair prejudice or the confusion of issues or misleading the jury. The state had proffered sufficient evidence, in the form of both the officer's testimony and the certified conviction, that the defendant in fact committed the prior act. Danley v. State, 342 Ga. App. 61, 802 S.E.2d 851 (2017).

In a robbery case, the trial court erred by finding that the prosecutor's "in her place" proffer in support of a pretrial notice under O.C.G.A. § 24-4-404(b) seeking to admit evidence of another robbery committed by the defendant provided insufficient proof that the defendant committed the other acts, in the absence of objection by the defendant. State v. Battle, 344 Ga. App. 565, 812 S.E.2d 1 (2018).

Evidence improperly admitted to show course of conduct.

- Defendant was granted a new trial because the evidence of a subsequent armed robbery was not admissible to show motive since that later act was not connected to the murders, and the only similarities it shared with the murders were the all-too-common elements of guns and an assortment of co-conspirators. Thompson v. State, 302 Ga. 533, 807 S.E.2d 899 (2017).

Federal interpretation on exclusion of relevant evidence for "unfair prejudice".

- The Fifth Circuit held that a trial court's exclusion of evidence under Fed. R. Evid. 403 as prejudicial in a bench trial was improper; excluding relevant evidence in a bench trial because the evidence is cumulative or a waste of time is clearly a proper exercise of the judge's power, but excluding relevant evidence on the basis of 'unfair prejudice' is a useless procedure since Rule 403 assumes a trial judge is able to discern and weigh the improper inferences that a jury might draw from certain evidence, and then balance those improprieties against probative value and necessity. In a bench trial, the same judge can also exclude those improper inferences from the judge's mind in reaching a decision. Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517 (5th Cir. 1981).

Evidence in medical malpractice cases.

- In a medical malpractice action, given that the admission of expert testimony that the doctor breached the standard of care in performing two 1998 surgeries on the patient would have arguably forced that doctor to defend against time-barred malpractice claims, the trial court was authorized to conclude that the substantially prejudicial impact of that evidence far outweighed any probative value. Miller v. Cole, 289 Ga. App. 471, 657 S.E.2d 585 (2008) (decided under former O.C.G.A. § 24-2-1).

In a medical malpractice case arising out of a mother's premature delivery of her baby, the trial court did not err in admitting the doctor's note on the mother's chart that the doctor had examined her, which was later marked through with a note "patient not seen, out of room," was probative of the doctor's untruthfulness under O.C.G.A. § 24-6-608(b)(1), given that the mother had not left her room that day. The note was not unduly prejudicial under O.C.G.A. § 24-4-403. Cent. Ga. Women's Health Ctr., LLC v. Dean, 342 Ga. App. 127, 800 S.E.2d 594 (2017).

Evidence of FTC order as to medical procedures may be admissible when the probative value of the evidence is not substantially outweighed by the fact that the admission of the evidence will create undue prejudice, confuse the issues, or mislead the jury. Pound v. Medney, 176 Ga. App. 756, 337 S.E.2d 772 (1985) (decided under former O.C.G.A. § 24-2-1).

Victim's false accusation of sexual abuse improperly barred.

- Trial court erred in granting the state's motion in limine to exclude evidence that the alleged victim had previously made a false accusation of sexual abuse against another individual based on a lack of specificity and a creation unfair prejudice and confusion of the issues because it was not clear how a false accusation could contain adequate specificity about an incident that never occurred; and because evidence of an allegation against a totally unrelated third party did not seem to present danger of unfair prejudice or confusion of the issues in the prosecution against one defendant, for sexual acts committed on one day, against one individual. Burns v. State, 345 Ga. App. 822, 813 S.E.2d 425 (2018).

Prejudicial impact outweighed probative value in contract action.

- In a breach of contract suit brought by a contractor who was engaged to advertise a computer program, the trial court properly excluded as irrelevant evidence regarding the purported illegality of the sale of the program as the reason why the defendants stopped selling the program was irrelevant to the issue of whether the contractor was owed commissions from past sales; even if it was relevant, the trial court was authorized to conclude that the substantially prejudicial impact of the evidence far outweighed any probative value. Smith v. Saulsbury, 286 Ga. App. 322, 649 S.E.2d 344 (2007) (decided under former O.C.G.A. § 24-2-1).

Prejudicial impact outweighed probative value in child abuse case.

- While the physician's opinion regarding the victim's hymen being intact and then later not intact was compelling evidence that the victim had been sexually abused, it was much less probative of the question of whether it was the defendant who had molested the victim because the defendant lacked access to the victim during the relevant time period and, thus, should not have been admitted into evidence. State v. Chapman, 322 Ga. App. 82, 744 S.E.2d 77 (2013).

Trial court did not abuse the court's discretion by admitting evidence of prior molestation acts upon a minor victim witness because the jury could have concluded by a preponderance of the evidence that the defendant committed the acts described by the witness and the probative value was great based on the overall similarity of the acts, each involved inappropriate sexual contact between the defendant and a child of similar age to whom the defendant gained access through a relationship with the child's mother. Dixon v. State, 341 Ga. App. 255, 800 S.E.2d 11 (2017).

Prejudicial impact outweighed probative value in rape case.

- Trial court disagreed that the other acts evidence was especially probative of the credibility of the defendant and the victim, given the lack of similarity between the other acts evidence of child molestation and the charged offense of rape, the decade separating the other acts from the charged offense, and the defendant's immaturity at the time the other acts were committed; however, the trial court believed that, under the circumstances, admitting extrinsic evidence of acts of alleged child molestation would lure the jury into finding the defendant guilty based on proof that was not specific to the crime charged, thereby infecting the proceedings with unfair prejudice and undermining the presumption of innocence. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

In a rape case, the record showed that the trial court made a common sense assessment of the circumstances surrounding the use of the other acts evidence, including prosecutorial need, similarity between the other acts and the charged offense, temporal remoteness, the likelihood of jury confusion by a trial involving three separate incidents, and the unfair prejudice that would flow from the introduction of prior crimes involving allegations of child molestation; thus, the state did not show that the trial court applied the wrong legal standard, misunderstood the nature or scope of the court's discretion, or clearly abused that discretion in excluding the evidence of the other acts in the defendant's case. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

In a rape case, the trial court was not unaware that excluding evidence under this rule was an extraordinary remedy that should be applied sparingly because the trial judge stated that the judge would have been happy to allow the other acts evidence if the judge thought the evidence was appropriate, but the trial court believed that the state was attempting to compensate for a weak case by piling on bad character evidence of scant probative value in an effort to undermine the presumption of innocence; and the trial court was clearly concerned that the admission of the other acts would transform what should be a straightforward case into a trial involving three separate incidents, distracting the jury from the issues central to the crime charged. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

Trial court did not commit reversible error when the court permitted the state to bring the first victim into the courtroom because evidence of the first victim's condition was clearly relevant to the state's cruelty to children in the first and second charges, including that the defendant caused the first victim bodily harm by rendering the first victim's brain, a member of the first victim's body, useless by violently shaking the victim, causing permanent brain damage; the probative value of viewing the victim was not substantially outweighed by the danger of unfair prejudice; and under the Crime Victims' Bill of Rights statute, O.C.G.A. § 17-7-1 et seq., the first victim had the right to be present at the trial. Freeman v. State, 333 Ga. App. 6, 775 S.E.2d 258 (2015).

Trial court did not err by admitting evidence that the defendant committed prior acts of child molestation as the circumstances were similar, the age of the victim during the abuse overlapped with the age of the victim in the instant case, and the manner of abuse was the same, making the prior offense highly probative with regard to the defendant's intent. Eubanks v. State, 332 Ga. App. 568, 774 S.E.2d 146 (2015).

Probative value not outweighed by prejudicial effect in murder case.

- Probative value of the probation officer's testimony about a phone number that the defendant had given to the officer that linked the defendant to the phone from which numerous calls were placed to one of the murder victims on the day of the murders was not substantially outweighed by its prejudicial effect because the testimony of the probation officer was clearly relevant; it had substantial probative value; although other evidence in the record tended to establish the connection between the defendant and one of the murder victims, none of it established a connection as directly or strongly as the testimony of the probation officer; and other evidence informed the jury that the defendant was on probation. Huff v. State, 299 Ga. 801, 792 S.E.2d 368 (2016).

In a malice murder and aggravated assault case, the trial court abused the court's discretion by admitting the defendant's 2006 convictions for aggravated assault for the purpose of showing intent because, by asserting self-defense, the defendant did not deny the intent to inflict injury, but claimed authority for the act under the legal excuse of reasonable fear of immediate serious harm to oneself or another; and because the prior aggravated assaults were clearly more prejudicial than probative as the fact that the defendant had committed an assault on another person nine years earlier had nothing to do with the defendant's reason for shooting the victim, and really had no purpose other than to show the defendant's propensity toward violence. Brown v. State, 303 Ga. 158, 810 S.E.2d 145 (2018).

Evidence of bar's reputation for violent incidents inadmissible.

- When the defendant was convicted of, inter alia, the malice murder of the first victim and the attempted murder of the second victim, to the extent that the bar's reputation for violent incidents influenced the defendant's state of mind, that reputation and its effect on the defendant was well established through other evidence admitted at trial; thus, even if the proffered incidents had some marginal relevance to the defendant's self-defense claim, any slight probative value was substantially outweighed by considerations of a waste of time or needless presentation of cumulative evidence, and the trial court acted within the court's discretion in excluding the evidence. Ramirez v. State, 303 Ga. 232, 811 S.E.2d 416 (2018).

Probative value not outweighed by prejudicial effect.

- Trial court did not err when the court allowed the state to introduce evidence that, on the date of the death of the defendant's wife, the defendant received an email notifying the defendant that the defendant had insufficient funds in the defendant's bank account because it was within the discretion of the trial court to conclude that the evidence was relevant to show that the defendant was under some degree of financial stress and had some reason to be upset on the day of the killing; and the prejudicial effect of the evidence, if any, was minimal and not unfair. McClain v. State, 303 Ga. 6, 810 S.E.2d 77 (2018).

Evidence of gang membership improperly admitted.

- Because there was no evidence whatsoever that the robberies were gang-related, and the defendant's prior gang affiliation had minimal probative value with regard to identity, the trial court abused the court's discretion in admitting the evidence of the defendant's gang membership; however, the error was harmless and did not require reversal as the victim identified the defendant in court; a police officer saw the defendant in the same apartment complex where the crimes occurred on the day of the crimes' commission; and the defendant was apprehended two days after the robbery in the same apartment complex wearing a red hat and red jacket matching that described by the victim. Lingo v. State, 329 Ga. App. 528, 765 S.E.2d 696 (2014).

Evidence of gang activity.

- Trial court did not abuse the court's discretion by admitting evidence of the defendant's alleged membership in a gang because the evidence of gang membership was relevant to and probative of motive based on two witnesses testifying as to the defendant's gang affiliation. Anglin v. State, 302 Ga. 333, 806 S.E.2d 573 (2017).

Crime spree evidence.

- In the defendant's burglary trial, evidence of five uncharged burglaries was admissible because the uncharged and six charged burglaries were part of a two-week crime spree committed by a burglary crew of which the defendant was a part, even if the defendant did not directly participate in some; the uncharged crimes did not fall within O.C.G.A. § 24-4-404(b). Baughns v. State, 335 Ga. App. 600, 782 S.E.2d 494 (2016).

Improper prejudice from admission of criminal record during damage phase of trial.

- Trial court did not abuse the court's discretion in ruling that the probative value of the defendant's criminal record, introduced during the damages stage only when the jury could be instructed on the proper use of the evidence, was not substantially outweighed by the danger of improper prejudice. Rivers v. K-Mart Corp., 329 Ga. App. 495, 765 S.E.2d 671 (2014).

Prejudice of cocaine conviction must substantially outweigh probative value.

- Although the victim's conviction for possession of cocaine might have been admissible as the conviction was less than 10 years old and constituted a crime punishable by imprisonment in excess of one year, the trial court erred in merely finding that the probative value of the victim's prior conviction for possession of cocaine was outweighed by the conviction's prejudicial effect and by not requiring the state to show that such prejudice substantially outweighed any probative value; however, the error was harmless because the admission of the victim's prior conviction would have been cumulative of the victim's own damaging testimony. Williams v. State, 328 Ga. App. 876, 763 S.E.2d 261 (2014).

Probative value of stipulation not outweighed by prejudicial impact.

- Because the final decision at the administrative license suspension hearing, which contained the defendant's stipulation that the defendant would plead guilty to driving under the influence of alcohol in exchange for the return of defendant's driver's license, was neither of scant or cumulative probative force nor introduced by the state merely for the sake of its prejudicial effect, and because its probative value was not substantially outweighed by its prejudicial effect, the trial court properly allowed admission of the final decision in the defendant's criminal case over the defendant's objection. Flading v. State, 327 Ga. App. 346, 759 S.E.2d 67 (2014).

Trial court did not abuse the court's discretion by allowing the state to introduce evidence of the defendant's prior driving under the influence (DUI) conviction because the evidence was not unduly prejudicial as the relevance of the prior DUI was heightened since the defendant's defense was that the defendant did not drive the vehicle while intoxicated but drank after stopping; thus, the prior DUI was relevant to the intent to drive while intoxicated since the defendant did so before. King v. State, 338 Ga. App. 783, 792 S.E.2d 414 (2016).

Implicit finding that probative value not outweighed by prejudicial effect.

- Notwithstanding the defendant's waiver of the enumeration of error that the trial court erred by admitting the prior bad acts without undertaking the balancing test, it presented no basis for reversal because the appellate court's review of the record showed that, although the trial court did not make specific findings regarding whether the probative value of the prior crimes was outweighed by its prejudicial impact, it explicitly referenced the balancing test and noted that the evidence had to satisfy the balancing test rule; thus, by admitting the evidence, the trial court implicitly found that the evidence was admissible pursuant to the balancing test rule. Entwisle v. State, 340 Ga. App. 122, 796 S.E.2d 743 (2017).

Probative value outweighed prejudice in use of previous DUI conviction.

- Defendant's conviction for driving under the influence (DUI) and other crimes was affirmed because the defendant's prior DUI conviction was properly admitted since the conviction was relevant to the issue of the defendant's knowledge of the consequences of both consenting to and refusing the tests, and its probative value outweighed any prejudice. Kim v. State, 337 Ga. App. 155, 786 S.E.2d 532 (2016).

Defendant's trial counsel was not ineffective for failing to object to the evidence of the defendant's prior driving under the influence conviction as the evidence was properly introduced by the state to show knowledge or awareness on the defendant's part; was not offered solely for its prejudicial effect; and was not merely of scant or cumulative probative value. Gibbs v. State, 341 Ga. App. 316, 800 S.E.2d 385 (2017).

After the defendant was arrested for driving under the influence (DUI) and refused to submit to a state administered breath test, the state's motion to introduce evidence of other DUI violations was improperly denied as the danger of undue prejudice did not substantially outweigh the probative value of the evidence of other occasions when the defendant drove under the influence because the state demonstrated the state's prosecutorial need for the extrinsic act evidence; the close proximity in time between the three prior DUI arrests and the charged offense; and the overall similarity between the three prior arrests and the current charge, especially with regard to the defendant's experiences with the requested state administered tests. State v. Voyles, 345 Ga. App. 634, 814 S.E.2d 767 (2018).

Probative value outweighed any undue prejudice in criminal case.

- In an armed robbery case, the trial court did not err in admitting a prior armed robbery conviction because the defense's theory that the defendant was present during the current armed robbery but had not participated in robbing the victim squarely challenged the element of intent; there was sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the 2008 armed robbery; the 2008 armed robbery was factually similar to the current armed robbery; and the probative value outweighed any undue prejudice as intent was contested, in that the defendant had admitted to being present but denied participating in the armed robbery. Logan-Goodlaw v. State, 331 Ga. App. 671, 770 S.E.2d 899 (2015).

Trial court did not abuse the court's discretion by admitting evidence from another burglary because the defendant pled not guilty to the burglary charges, thus making intent a material issue, and the defendant's actions in committing the other burglary and pawning the class ring involved the same mental state as burglarizing a house to obtain gold jewelry to sell for cash; thus, the evidence from the other burglary was relevant to establish intent. Silvey v. State, 335 Ga. App. 383, 780 S.E.2d 708 (2015).

Evidence of an earlier altercation between the defendant and a former girlfriend was admissible in the aggravated assault of the victim, the former girlfriend's brother, because the state of mind required for the charged offense of aggravated assault against the victim was the same as the state of mind required for the uncharged act against the former girlfriend, which could have constituted an aggravated assault; the other act was probative of the issue of the defendant's intent, which defense counsel argued to the jury was the biggest issue in the case; and the evidence was sufficient to show that the prior bad act occurred and that the defendant was the person who accosted and threatened the former girlfriend with the knife. Wilson v. State, 336 Ga. App. 60, 783 S.E.2d 662 (2016).

Appellant failed to establish that trial counsel was ineffective for failing to object to the admission of the autopsy photographs as the photographs were relevant and a competent attorney in the position of appellant's trial lawyers would have had every reason to believe that an objection to the autopsy evidence based on O.C.G.A. § 24-4-403 would fail, even if the appellant did not affirmatively dispute the state's proof that the victim was shot to death. Moss v. State, 298 Ga. 613, 783 S.E.2d 652 (2016).

In a DUI case, the trial court did not abuse the court's discretion in finding that the probative value of evidence of the defendant's prior conviction was not substantially outweighed by the prejudicial effect of the evidence, after finding that the circumstances surrounding the prior conviction were similar to the circumstances involving the charged offenses and the charged offenses occurred five to six years after the extrinsic offense, when the defendant would have known it was less safe because it was less safe before. Jones v. State, 335 Ga. App. 563, 782 S.E.2d 466 (2016).

Trial court did not abuse the court's discretion in determining that the prejudicial value of the gun did not substantially outweigh the probative value as it was very probative as rebuttal to the defense that the defendant did not intend to threaten or terrorize but only to warn the judge's family. Satterfield v. State, 339 Ga. App. 15, 792 S.E.2d 451 (2016).

Probative value of the other act evidence was not substantially outweighed by its prejudicial effect as it was unlikely that the jury would be more inflamed in any appreciable measure by the relatively minor other acts evidence than the jury already was by the heinous sexual offenses against children with which the defendant was actually charged. The impact of the other acts evidence was thus relatively minimal. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131 (2016).

Other acts evidence was relevant and admissible and the trial court did not abuse the court's discretion in declining to exclude the evidence regarding two earlier instances in which the defendant obstructed a law enforcement officer because there was a significant connection between the other acts evidence and the required element of the defendant's knowledge, giving the other acts evidence probative value; and the defendant's knowledge was a material issue in the case. Green v. State, 339 Ga. App. 263, 793 S.E.2d 156 (2016).

Other acts evidence that the defendant resorted to violence towards other women who did not accede to the defendant's demands was needed to counter the defense and support the defense case that the defendant intentionally hit the victim after the victim refused the defendant's sexual advances. This evidence added significantly to the other proof used to establish that the defendant hit the victim, and although prejudicial, any prejudice did not substantially outweigh the probative value of the evidence. Harris v. State, 338 Ga. App. 778, 792 S.E.2d 409 (2016).

In an armed robbery case, the trial court did not err in admitting the defendant's prior robbery conviction because, although the defendant contended that intent was not an issue in the case, the defendant's defense that the defendant was merely present in the car when the police stopped the car, and that, if the co-defendant had committed the robbery, the co-defendant committed the robbery with somebody else, squarely challenged the element of intent; furthermore, in light of the similar nature of the acts and the strength of the prior act's connection to demonstrating the defendant's intent, the trial court did not abuse the court's discretion in determining that the probative value of the prior conviction was not outweighed by the prejudicial effect. Turner v. State, 345 Ga. App. 427, 811 S.E.2d 97 (2018).

Prejudicial impact outweighed probative value in use of previous DUI conviction.

- In a driving under the influence (DUI) per se case, the defendant's prior DUI conviction was improperly admitted to show intent as the probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the jury could infer intent from the defendant's act of driving after admittedly consuming alcohol without considering the prior DUI, and there was a danger of interjecting unfair prejudice at trial; however, admission of that evidence was harmless as the direct evidence of the defendant's guilt for the DUI-per se charge was overwhelming as the defendant admitted to consuming alcohol, and the breath tests showed the defendant's blood alcohol content was substantially in excess of 0.08 grams. Jones v. State, 301 Ga. 544, 802 S.E.2d 234 (2017).

Probative value not outweighed by prejudicial effect in theft by taking case.

- In a theft by taking case, because intent was put in issue by the defendant, evidence of the other acts that two witnesses paid the defendant money but never received completed cabinets nor a refund of the witnesses' money was relevant and admissible under O.C.G.A. § 24-4-404(b); furthermore, the probative value of the similar acts was not outweighed by their prejudicial effect pursuant to O.C.G.A. § 24-4-403. Graham v. State, 337 Ga. App. 664, 788 S.E.2d 555 (2016).

Trial court did not abuse the court's considerable discretion when the court admitted the photograph depicting the contents of the trunk of the victim's car showing numerous items found in the trunk, including the victim's body wrapped in a comforter, a gasoline-soaked towel, several articles of clothing, and a photograph of an unidentified young girl sitting in a field because the photographs' potential for prejudice did not substantially outweigh its probative value as the exhibit was of particular importance because it showed how the victim's body was located in relation to both the gasoline-soaked towel and the bottom of the trunk; and the jury heard no testimony about the photograph of the girl. Cheley v. State, 299 Ga. 88, 786 S.E.2d 642 (2016).

Probative value not weighed by prejudicial effect.

- Probative value of the similar transaction evidence was not outweighed by its prejudicial effect given the similarity between the robbery crimes and the fact that the trial court instructed the jury that the similar transaction evidence could only be considered for the limited purpose of showing the defendant's knowledge and intent. McCoy v. State, 332 Ga. App. 626, 774 S.E.2d 179 (2015).

Prejudicial effect of evidence of insurance coverage.

- Pedestrian and the pedestrian's spouse sued a driver over an auto accident. The trial court properly refused to allow plaintiffs to ask whether the driver had entered into an agreement with their uninsured motorist (UM) carrier in exchange for testifying as the trial court could have reasonably concluded that the prejudice resulting from revealing the UM policy outweighed any probative value of evidence of the carrier's waiver of subrogation claims against the driver. McClellan v. Evans, 294 Ga. App. 595, 669 S.E.2d 554 (2008) (decided under former O.C.G.A. § 24-2-1).

Allowing evidence of witness's compensation.

- 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).

Incomplete record on appeal hampered review of application of balancing test.

- Because the defendant in the defendant's notice of appeal designated only certain portions of the record for inclusion in the record on appeal, the appellate record did not include, among other things, opening statement and closing argument of defense counsel, and the portion of the record where the defense would have presented its case-in-chief or rested without presenting any such evidence; and, given that incomplete record, the defense theory of the case was unclear, which hampered the appellate court's review of the trial court's application of the balancing test in O.C.G.A. § 24-4-403. Adams v. State, 344 Ga. App. 159, 809 S.E.2d 87 (2017).

Risk of prejudice reduced by limiting instruction.

- Admission of prior acts evidence was not an abuse of discretion as the similarity between the charged offense and an altercation two days earlier in which the defendant poked the victim with a knife made the former act highly probative of the defendant's intent and the risk of undue prejudice to the defendant was reduced by the court's limiting instruction, charging the jury that the evidence could not be used to infer that the defendant was of a character that would commit such crimes. Powell v. State, 332 Ga. App. 437, 773 S.E.2d 399 (2015).

Photographs of the victim of a crime are admissible.

- Trial court did not abuse the court's discretion in admitting the autopsy photographs of the victim because the photographs were relevant as the medical examiner testified that the photographs showed the internal injuries that caused the victim's death that were not evident from the pre-incision photographs; the fact that the defendant might not have disputed the cause of death did not diminish the relevance of the photographs; and the trial court considered whether the probative value of the photographs was substantially outweighed by the danger of unfair prejudice. Dailey v. State, 297 Ga. 442, 774 S.E.2d 672 (2015).

In the defendant's trial for the murder of a family friend as the victim was showering, crime scene photos showing the victim's genitals were not required to be excluded under O.C.G.A. § 24-4-403 because the photos were probative of the question of whether the victim was killed with malice. Plez v. State, 300 Ga. 505, 796 S.E.2d 704 (2017).

Trial court did not err in allowing certain autopsy photographs of the victim to be admitted because the challenged photographs did not depict the victim's autopsy incisions, and the photographs were not especially gory or gruesome in the context of autopsy photographs in a murder case; the photographs were relevant to show the nature and location of the victim's injuries, which corroborated the state's evidence of the circumstances of the killing; contrary to the defendant's assertion, the victim did not die solely from manual strangulation, but also from blunt force head trauma, and the photographs illustrated the nature and extent of the physical beating and resulting trauma sustained by the victim; and exclusion based on unfair prejudice was not warranted. Pike v. State, 302 Ga. 795, 809 S.E.2d 756 (2018).

Photographs more prejudicial than probative.

- With no serious question as to the victim's existence of identity, any probative value of the photographs of the victim while in life, depicting the victim alone and with family, was outweighed by the cumulative prejudice therefrom, and the trial court erred in admitting the photographs. Ragan v. State, 299 Ga. 828, 792 S.E.2d 342 (2016).

"Selfie" videos prejudicial.

- Even if the "selfie" videos of the defendant talking about ways to make money, including robbery, were relevant, the videos were properly excluded because the videos included statements as to the defendant's involvement in drug dealing, an illegal activity that had no relevance to the charged crime, but references to which would have been highly prejudicial. State v. Spriggs, 338 Ga. App. 655, 791 S.E.2d 440 (2016).

Photos were arguably objectionable.

- Three photos from the hospital series that did not depict the victim at all were arguably objectionable by counsel and an objection may have been sustained under O.C.G.A. § 24-4-403 as to relevancy but no ineffective assistance of counsel was shown based on the other evidence against the appellant being strong and the appellant failing to show a reasonable probability that the result of the trial would have been different. Davis v. State, 299 Ga. 180, 787 S.E.2d 221 (2016).

Probative value of jail phone call not outweighed by prejudicial effect.

- Trial court did not err in admitting an audio recording of a five-minute phone call that the defendant made from jail to a friend because the recording was relevant to show that the defendant made statements that were not consistent with either the defendant's statements at the defendant's second police interview or the defense theory of justification presented at trial; and the derogatory terms used by the defendant during the phone call did not create a risk of unfair prejudice that substantially outweighed the recording's probative value as the words that the defendant used had lost much of their shock value in contemporary culture and were unlikely to induce the jury to return a conviction based on a generalized assessment of character. Smith v. State, 302 Ga. 717, 808 S.E.2d 661 (2017).

Admission of National Precursor Log Exchange records in methamphetamine manufacture case.

- State was permitted to introduce National Precursor Log Exchange records showing purchases of pseudoephedrine by the defendant and the defendant's co-conspirator over the defendant's objection that the prejudicial effect of such evidence outweighed its probative value because the records were probative of the fact that both the defendant and the defendant's co-conspirator had, on numerous prior occasions, purchased pseudoephedrine, which was a key precursor in the manufacture of methamphetamine; in several of the records, the defendant listed the residence where the methamphetamine and evidence of methamphetamine production were found as the defendant's home address; and the defendant's address was a contested issue in the case. Cummings v. State, 345 Ga. App. 702, 814 S.E.2d 806 (2018).

Evidence admissible.

- Evidence of a prior murder by the defendant was relevant to motive because the evidence demonstrated the defendant's willingness to use violence when the defendant or someone close to the defendant was cheated in a drug deal. Bradshaw v. State, 296 Ga. 650, 769 S.E.2d 892 (2015).

Defendant failed to establish that the trial court abused the court's discretion by admitting evidence of the defendant's 2001 conviction for possessing cocaine with the intent to distribute because the defendant placed the defendant's intent in issue by pleading not guilty to the charges of trafficking in cocaine and possessing cocaine with the intent to distribute; the defendant did nothing to remove intent as an issue as the defendant told law enforcement that the defendant did not live in the house throughout which the drugs and drug-distribution paraphernalia were found; and the prior conviction was relevant as the defendant's participation in the earlier crime required the same intent as the charged crimes. Gunn v. State, 342 Ga. App. 615, 804 S.E.2d 118 (2017).

When the defendant was convicted of two counts of aggravated sodomy and one count each of family violence aggravated assault, family violence battery, terroristic threats, and family violence simple battery against a live-in girlfriend, evidence of prior sexual assaults was properly admitted because it was relevant to show the defendant's intent, which was put in issue when the defendant entered a plea of not guilty; the prior sexual assaults were sufficiently similar to the charged sexual assaults; the state was able to use the evidence to bolster the victim's credibility by demonstrating that the victim's circumstances were not unique; and any risk of unfair prejudice was mitigated by the trial court's limiting instruction. Benning v. State, 344 Ga. App. 397, 810 S.E.2d 310 (2018).

Evidence not relevant.

- In a wrongful death action, the trial court did not abuse the court's discretion by refusing plaintiff's request to have evidence of the doctor's medical condition and history admitted because the trial court found that it was not relevant without evidence of such condition and history existing on and during treatment of the plaintiff's decedent. Doherty v. Brown, 339 Ga. App. 567, 794 S.E.2d 217 (2016).

Trial court did not err by permitting a law-enforcement officer to testify about the pernicious effects of heroin and addiction because the testimony put in context what heroin was and the testimony was relevant to explain why someone might engage in an enterprise to distribute heroin and possess a trafficking amount, and to explain why heroin was a Schedule I controlled substance. Jones v. State, 339 Ga. App. 95, 791 S.E.2d 625 (2016).

Admission of letter written by defendant.

- Trial court properly admitted a letter in the defendant's trial for convictions in connection with a drive-by shooting because the state properly authenticated the letter as authored by the defendant since the letter was given to the prosecution by defense counsel and was properly introduced as evidence of the defendant's guilty consciousness relating to the shooting and the letter's relevance was substantially outweighed by any danger of unfair prejudice. Amey v. State, 337 Ga. App. 480, 788 S.E.2d 80 (2016).

Evidence of videotape admissible in DUI case.

- Trial court did not err by allowing the state to admit demonstrative evidence of video clips showing three types of horizontal gaze nystagmus because the officer's testimony made clear that the video clips were not of the defendant, but that in the substantial particulars, the conditions of the video clips and the officer's observations of the defendant were similar as both showed the same kind of nystagmus. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017).

Character evidence admissible for intent.

- Trial court did not abuse the court's discretion in finding that the defendant's prior bad acts were admissible because the defendant pled not guilty, thereby making intent a material issue; thus, the defendant's position of intending only to help the victims, but not to commit any criminal offenses, squarely challenged the element of intent and the witness testified that the defendant sold the witness as a prostitute and held the witness against their will, just like the defendant did with the victims in the case. Curry v. State, 330 Ga. App. 610, 768 S.E.2d 791 (2015), cert. dismissed, No. S16C0519, 2016 Ga. LEXIS 278 (Ga. 2016).

Trial court did not abuse the court's discretion by excluding evidence of one appellant's intent as to the reconveyance of certain funds because no abuse of discretion occurred by excluding evidence of a cumulative nature that could have confused the jury about the primary issue under consideration and created a re-trial. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793, 806 S.E.2d 255 (2017).

Statement of employee nurse of defendant relevant.

- Trial court did not abuse the court's discretion in admitting the testimony of the plaintiff's daughter over the defendant's objection as an admission by a party opponent because the statement was made by a nurse employed by the defendant and was relevant to the slip and fall case. Emory Healthcare, Inc. v. Pardue, 328 Ga. App. 664, 760 S.E.2d 674 (2014).

Probative value not substantially outweighed by danger of unfair prejudice.

- Defendant's recorded telephone conversations made from jail were relevant and admissible: (1) to show the defendant's consciousness of guilt for the armed robbery as the defendant admonished a witness for divulging the defendant's name to the police; the defendant asked the witness if the witness told the police that the defendant had a gun; and the defendant told the witness that the police pressure should not get to the witness as the witness had not done anything; and (2) to corroborate the witness's testimony that the defendant had told the witness not to give the defendant's name to the police; further, the probative value of the recorded telephone calls was not substantially outweighed by the danger of unfair prejudice. Anderson v. State, 337 Ga. App. 739, 788 S.E.2d 831 (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).

Trial court did not err in granting the state's motion to present evidence of the armed robbery of a residence two days before the victim's murder because the evidence of the armed robbery was admissible to show the motive to commit the victim's murder as the defendant and the co-defendant were concerned that the victim would turn them into the police; evidence of motive was relevant even if the evidence incidentally placed the defendant's character in issue; there was sufficient proof that the defendant committed the prior armed robbery; and the trial court did not err in finding that the probative value of the evidence outweighed any prejudice from admission. Pike v. State, 302 Ga. 795, 809 S.E.2d 756 (2018).

Trial court did not abuse the court's discretion in admitting a school photograph of the victim taken approximately eight months before the aggravated sexual battery because the photograph had probative value. The photograph tended to show that around the time of the incident that the victim looked like a child, not an adult, thereby making the defendant's claim that the defendant mistook the victim for the victim's mother less probable; and there was evidence that the victim's appearance at the time of the incident did not differ markedly from the photograph taken eight months earlier, but there was evidence that the victim's appearance changed between the incident and the November 2015 trial at which the victim testified. Marroquin v. State, 346 Ga. App. 161, 816 S.E.2d 91 (2018).

Federal interpretation on discretion afforded for admission of evidence.

- The Eleventh Circuit noted that, in making the Fed. R. Evid. 403 determination as to whether the probative value of evidence is substantially outweighed by its prejudicial effect, the trial court is accorded broad discretion that will be reviewed only for clear abuse. United States v. King, 713 F.2d 627 (11th Cir. 1983).

Cited in Edmonson v. State, 336 Ga. App. 621, 785 S.E.2d 563 (2016); Lowery v. State, Ga. App. , 815 S.E.2d 625 (2018).

ALR.

- Propriety and prejudicial effect of witness testifying while in prison attire, 1 A.L.R.7th 5.