O.C.G.A. § 24-4-403 (2019)

Annotations

Cross references. Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons, Fed. R. Evid. 403 Editor’s notes. In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Sections 24-4-401 and 24-4-402, which may also be applicable to this Code section. Law reviews. For annual survey on evidence law, see 69 Mercer L. Rev. 101 (2017).

For annual survey on evidence law, see 70 Mercer L. Rev. 97 (2018). For annual survey on trial practice and procedure, see 70 Mercer L. Rev. 253 (2018). For annual survey on evidence, see 71 Mercer L. Rev. 103 (2019). For article, “An Overview of Ultimate Issue Evidence,” see 25 Ga. St. B.J. 19 (June 2020). For article, “Character Evidence in the Civil Setting,” see 26 Ga. St. B.J. 20 (Dec. 2020). For annual survey on evidence, see 74 Mercer L. Rev. 129 (2022).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION CRIMINAL CASES CIVIL CASES General Consideration 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 Ga. App. LEXIS 2522 (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 Medicine, 271 Ga. App. 622, 610 S.E.2d 546, 2005 Ga. App. LEXIS 51 (2005), cert. denied, No. S05C1009, 2005 Ga. LEXIS 486 (Ga. June 30, 2005), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147, 2009 Ga. LEXIS 395 (2009) (decided under former O.C.G.A. § 24-2-1). Unfair prejudice must substantially outweigh probative value to exclude evidence. - After the state filed a notice of intent to present other acts evidence seeking to admit evidence of prior bad acts through the testimony of three witnesses, and the trial court denied the state’s motion, the trial court did not apply the correct standard regarding the exclusion of relevant evidence when the court found only that the probative value of the other acts evidence was not outweighed by the danger of unfair prejudice and failed to analyze whether such prejudice substantially outweighed any proba-

tive value. State v. Jackson, 351 Ga. App. 675, 832 S.E.2d 654, 2019 Ga. App. LEXIS 465 (2019). Application of incorrect legal standard. - Trial court erred by excluding evidence of defendant’s two prior shootings because the court’s analysis under O.C.G.A. § 24-4-403 employed an erroneous legal standard, as the court stated that the evidence of one incident was “highly prejudicial” and “not probative” but the court was required to assess the danger of unfair prejudice, and the court stated that the second incident was “more prejudicial than probative” but the proper standard required the court to determine whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. State v. Harris, No. S23A0090, No. S23A0091, 2023 Ga. LEXIS 103 (Ga. May 16, 2023). Evidence of silence or failure to report crime evaluated on case-bycase basis. - Judicial rule excluding all comment upon a defendant’s silence or failure to come forward to report a crime as more prejudicial than probative, Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991), was abrogated by Georgia’s new Evidence Code; now such silence or failure to come forward must be evaluated on a case-by-case basis under O.C.G.A. § 24-4403. State v. Orr, 2019 Ga. LEXIS 317. Trial court did not abuse the court’s discretion in admitting testimony regarding the appellant’s prior acts of sexual assault because that evidence was relevant to the appellant’s intent, identity, and propensity and three other family members testified that the appellant engaged in the same conduct of rubbing their genitals and inserting the defendant’s finger into their vaginas when the witnesses were the same age as the victim, which testimony was relevant to show the appellant’s propensity and that it was the appellant who molested the

victim. Dixon v. State, 350 Ga. App. 211, 828 S.E.2d 427, 2019 Ga. App. LEXIS 274 (2019). 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, 1981 U.S. App. LEXIS 20535 (5th Cir. 1981). 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 Ga. App. LEXIS 319 (2015). 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, 1983 U.S. App. LEXIS 24467 (11th Cir. 1983), cert. denied, 466 U.S. 942, 104 S. Ct. 1924, 80 L. Ed. 2d 470, 1984 U.S. LEXIS 1885 (1984).

Criminal Cases Evidence of sexual activities prejudicial. - Trial court should have excluded a significant amount of needlessly cumulative evidence of the defendant’s sexual activities before the day of the child’s death because the probative value of the evidence was trivial at best and the unfair prejudice wholly outweighed whatever minimal probative value the sexual interactions with minors had in establishing the existence of the first link (and only the first link) of the defendant’s alleged motive for killing the child. Harris v. State, 314 Ga. 238, 875 S.E.2d 659, 2022 Ga. LEXIS 169 (2022). Admission of evidence that victim was molested at age of six. - Trial court did not err in excluding the evidence that the victim was molested at the age of six because even if the evidence arguably bore some minimal relevance to defendant’s guilt in the case, the trial court acted within the court’s discretion in concluding that the minor probative value of any such evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay or waste of time. Vallejo v. State, 362 Ga. App. 33, 865 S.E.2d 640, 2021 Ga. App. LEXIS 555 (2021). 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 Ga. App. LEXIS 498 (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 preju-

Criminal Cases (Cont’d) dice 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 Ga. App. LEXIS 306 (2017), overruled in part, McClure v. State, 306 Ga. 856, 834 S.E.2d 96, 2019 Ga. LEXIS 643 (2019). 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 Ga. App. LEXIS 68 (2018). By placing intent at issue by claiming at trial that the defendant’s delusions completely negated criminal intent, the state needed evidence that the defendant acted with intent to commit the crimes of murder and possession of a firearm; thus, the trial court did not abuse the court’s discretion in admitting evidence of a prior New York crime since as to both crimes, the defendant used a handgun to assault people that the defendant perceived had committed an offense against the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257, 2019 Ga. LEXIS 234 (2019). Trial court did not abuse the court’s discretion by admitting evidence that the defendant had pled guilty to voluntary manslaughter in 1997 because it was relevant to the issue of intent, which the state was required to prove for the malice murder charge. The trial court did not err by finding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice because the state had a high need for the evidence to counter the defense that the defendant had been coerced into participating in the crimes, there were significant similarities between the crimes, and the defendant admitted to shooting the prior victim. Frazier v. State, 309 Ga. 219,

845 S.E.2d 579, 2020 Ga. LEXIS 460 (2020). Trial court did not abuse the court’s discretion when the court concluded that the evidence of two prior acts were relevant because the 2002 attack showed that the defendant, when affronted by a romantic partner, would call on male friends to help subdue the partner, as well as the 2003 vase-throwing incident with the defendant biting the victim, were both strikingly similar to the assault upon the defendant’s boyfriend, which resulted in the boyfriend’s death. Morgan v. State, 354 Ga. App. 754, 841 S.E.2d 430, 2020 Ga. App. LEXIS 216 (2020). Trial court did not abuse the court’s discretion in admitting the two prior acts of child molestation against the defendant especially given the strong presumption in favor of admissibility; the defendant’s prior acts against two other women when they were young girls were relevant and probative regarding the defendant’s intent and propensity to commit the charged crimes against the victim as there was no showing either on direct or cross-examination that the witnesses’ memories were at issue. Sturgis v. State, 356 Ga. App. 219, 842 S.E.2d 82, 2020 Ga. App. LEXIS 240 (2020). Trial court did not err in denying the defendant’s motion to exclude evidence of a prior armed robbery conviction because the two armed robberies were similar in that, in both robberies, the defendant followed the victim home, robbed them at gun point just outside of the front door, and then fled the scene with the help of accomplices, weighing in favor of admission. Jernigan v. State, 357 Ga. App. 415, 848 S.E.2d 707, 2020 Ga. App. LEXIS 551 (2020). Trial court did not abuse the court’s discretion by failing to exclude evidence of the defendant’s prior convictions for forgery and theft by deception because, given the clear questions raised about the defendant’s intent, the claim to the police that the defendant and the victim were involved in a drug-dealing scheme, and the fact that all the incidents involved efforts by the defendant to obtain funds through deceit, any unfair prejudice did not substantially outweigh the probative value of

the other acts evidence. Austin v. State, 356 Ga. App. 839, 849 S.E.2d 689, 2020 Ga. App. LEXIS 539 (2020). There was no abuse of discretion in the trial court’s application of the balancing test with regard to six prior instances when the defendant previously exposed the defendant’s penis to a female in a public place and masturbated because all of the incidents were significantly similar and lessened the possibility that the incident at issue was an accident. Mike v. State, 358 Ga. App. 113, 853 S.E.2d 887, 2021 Ga. App. LEXIS 14 (2021). Trial court did not abuse the court’s discretion by admitting testimony and photographs regarding the defendant’s entry into the victim’s wife’s sister’s back yard in the middle of the night to leave flowers, valentine cards, and a note for the wife because the evidence was necessary to complete the story of the crime as it shed light on the defendant’s motives in the defendant’s single-minded and continuing pursuit of the wife without any apparent concern over the victim’s murder or the defendant’s previous threats. Furthermore, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice particularly in light of the trial court’s caution that the witnesses were not to testify to the defendant’s arrest for the severed charges or to mention those charges by name. Gialenios v. State, 310 Ga. 869, 855 S.E.2d 559, 2021 Ga. LEXIS 79, overruled in part, Outlaw v. State, 311 Ga. 396, 858 S.E.2d 63, 2021 Ga. LEXIS 197 (2021). Trial court did not abuse its discretion by admitting evidence related to shootings at another location as intrinsic evidence because the evidence had significant probative value, as the State needed evidence to show the connection between defendant, defendant’s gang membership, and the charged crimes, and the prejudicial effect of the evidence was mitigated by the trial court’s instruction limiting the jury’s consideration of the evidence. Johnson v. State, 312 Ga. 481, 863 S.E.2d 137, 2021 Ga. LEXIS 625 (2021). Trial court did not abuse its discretion by not excluding defendant’s prior offenses of child molestation under this section, even though they occurred nearly 30

years before the instant crimes, because the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, as the prior offenses were similar to the instant crimes, and the State needed the evidence to show defendant’s motive and intent and to rebut the defense that the victim had fabricated the claims of child molestation. Wilson v. State, 312 Ga. 174, 860 S.E.2d 485, 2021 Ga. LEXIS 481 (2021). Evidence of a prior assault, a prior murder, and a prior robbery by the defendant was admissible intrinsic evidence, as the prior acts were part of the chain of events leading to the charged crimes and were probative to explaining the context of the charged crimes. Heade v. State, 312 Ga. 19, 860 S.E.2d 509, 2021 Ga. LEXIS 475 (2021). Trial court did not err by refusing to exclude the extrinsic evidence under O.C.G.A. § 24-4-403 because the prosecutorial need for the evidence was high to counter the defense that defendant had not been in a car chase with another driver and nothing defendant did caused the other driver to lose control, although the videos referred to racing and drifting those acts were consistent with the acts of reckless and aggressive driving that defendant engaged in while eluding the other driver, the risk of prejudice was minimal, and the trial court gave a limiting instruction. Anderson v. State, 360 Ga. App. 291, 861 S.E.2d 151, 2021 Ga. App. LEXIS 334 (2021). Trial court erred in granting the defendant’s motion in limine to exclude any evidence of another robbery because, although the trial court assumed the evidence could be relevant to identity or motive, the trial court did not appear to have considered the admissibility of the evidence to show modus operandi, plan, or preparation; the trial court seemed to have ignored the prosecutorial need for the evidence, given the defendant’s own concession at the hearing that the evidence was the only link between him and the 2016 robbery; and the trial court failed to properly apply the Rule 403 balancing test. State v. Anderson, 365 Ga. App. 75, 877 S.E.2d 639, 2022 Ga. App. LEXIS 390 (2022).

Criminal Cases (Cont’d) Probative value of other acts evidence was not substantially outweighed by the danger of unfair prejudice to defendant because the evidence was needed to counter defendant’s theory of self-defense. Freeman v. State, 365 Ga. App. 332, 878 S.E.2d 578, 2022 Ga. App. LEXIS 440 (2022). Trial court did not err by admitting evidence of defendant’s 1988 convictions for rape and aggravated sodomy because it was relevant to show defendant’s intent. Because defendant attacked the victims’ credibility, the State was able to use the evidence to bolster their credibility by showing that their circumstances were not unique. The trial court gave the jury a limiting instruction and the State tendered a certified copy of defendant’s 1988 convictions at trial. Brooks v. State, 365 Ga. App. 711, 880 S.E.2d 226, 2022 Ga. App. LEXIS 497 (2022). In child molestation case, trial court abused discretion in determining whether prior acts evidence was admissible under O.C.G.A. § 24-4-403, because trial court’s assessment of mini-trial risk was not tailored to prior acts evidence presented by state at hearing on motion. State v. Berman, 367 Ga. App. 447, 2023 Ga. App. LEXIS 167 (2023). Admission of out of state convictions proper. - Trial court did not abuse the court’s discretion when the court admitted the defendant’s prior Florida convictions because the defendant put intent at issue and, contrary to the defendant’s contention that the prior crimes and the instant crimes were not sufficiently similar, all involved defendant acquiring or attempting to acquire high-end vehicles through fraud or deceit. Clarke v. State, 356 Ga. App. 580, 848 S.E.2d 192, 2020 Ga. App. LEXIS 492 (2020). Evidence of victim’s prior crimes properly excluded. - Trial court did not err by refusing to allow the defendant to introduce evidence that in 2013 the other driver had attempted to abduct a teenage girl from a bus and then attempted to flee because it was not relevant, as whether the driver attempted to overcharge defendant was of no conse-

quence to the determination of the issues in the case and the issue for determination was not whether the driver left the scene of the accident but rather whether the defendant caused the accident by brake checking the driver and causing the driver to lose control. The probative value of the evidence was substantially outweighed by the risk of prejudice. Anderson v. State, 360 Ga. App. 291, 861 S.E.2d 151, 2021 Ga. App. LEXIS 334 (2021). Evidence of prior acts admissible although defendant acquitted of charges. - In the defendant’s trial for the shooting death of a drug dealer, the trial court properly ruled that a prior similar incident was so similar that evidence showing the defendant’s involvement in the prior incident was admissible under O.C.G.A. § 24-4-404(b), despite the defendant’s acquittal of charges in that case; however, the trial court erred in excluding evidence of that victim’s murder out of “an abundance of caution,” which was not a ground for excluding evidence under O.C.G.A. § 24-4-403. State v. Atkins, 304 Ga. 413, 819 S.E.2d 28, 2018 Ga. LEXIS 600 (2018). Evidence of multiple serious violent acts 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 other acts evidence in murder trial constituted 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). In a case in which the defendant was convicted of malice murder and possession of a firearm during the commission of a felony, although the trial court erred in admitting the evidence of the prior shooting as there were limited similarities and minimal prosecutorial need for the evidence, and the prior act was not at all relevant for the purpose of showing motive, the error was harmless as it was highly probable that the error in admitting the evidence about the shooting did not contribute to the verdict given the strong independent evidence of the defendant’s guilt and the trial court’s thorough instructions. Thomas v. State, 314 Ga. 681, 878 S.E.2d 493, 2022 Ga. LEXIS 255 (2022). Evidence of motive from family violence and extramarital affairs. - When the state sought to introduce the defendant’s prior arrest for family violence battery against another woman to show the defendant’s motive and intent in killing the victim, given that the state intended to call the defendant’s wife as a witness, the extramarital nature of the defendant’s relationship with the victim in 2021 would be in evidence, and evidence that the defendant had an extramarital affair with the other woman in 2017 had exceedingly low prejudicial impact; thus, that aspect of the other-acts evidence was entitled to very little weight in the trial court’s balancing of the probative value against any unfair prejudice, and the trial court erred in that regard. State v. Williams, No. S23A0420, 2023 Ga. LEXIS 89 (Ga. May 2, 2023). 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 Ga. LEXIS 950 (2017).

Similarities between attacks sufficient for admission. - Superior court did not err by allowing a witness to testify because the evidence was properly admitted to prove a plan, as there were striking similarities between defendant’s attack on the witness and instant offense, the evidence had substantial probative value because the defense at trial was that defendant was not the perpetrator, and the state offered sufficient evidence for the jury to conclude that defendant committed the acts, as the witness testified and identified defendant as her attacker, and the state offered photographs depicting defendant’s bite marks on the witness. Burrell v. State, 363 Ga. App. 491, 870 S.E.2d 918, 2022 Ga. App. LEXIS 178 (2022). Medical records on mental health. - Trial counsel was not ineffective for failing to present available evidence corroborating the defendant’s testimony about the defendant’s mental health because trial counsel correctly recognized that under the rule of completeness, the state could have sought to admit portions of the medical records from prison, as well as medical records from other facilities, that were unfavorable to the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257, 2019 Ga. LEXIS 234 (2019). 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 Ga. App. LEXIS 226 (2018), aff’d, 306 Ga. 117, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (2019).

Criminal Cases (Cont’d) Trial court did not abuse the court’s discretion by allowing the admission of evidence regarding the defendant’s prior drug possession arrest because the evidence of prior drug activity was highly probative of intent to sell a controlled substance for which the defendant was on trial and the prior act of drug possession happened while the defendant was driving a car in the same area where the sale of the methamphetamine during the first buy occurred. Moton v. State, 351 Ga. App. 789, 833 S.E.2d 171, 2019 Ga. App. LEXIS 488 (2019). Lower appellate court properly reversed the ruling excluding the victim’s admittedly false statement of sex because the false allegation plainly described the event involving someone else at a separate time; thus, there was no basis for confusion and, as such, O.C.G.A. § 24-4403 did not pose a bar to the jury learning about the victim’s false statement. State v. Burns, 306 Ga. 117, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (2019). Georgia Supreme Court overruled Smith v. State, 259 Ga. 135 (1989) and similar holdings, which held that Georgia’s Rape Shield statute (now O.C.G.A. § 24-4-412), as it then existed, did not prohibit testimony of previous false allegations by the victim as the court held that although Smith’s bright-line test was not unworkable, neither was the alternative of applying familiar and usual rules of evidence, which trial courts routinely do every day. State v. Burns, 306 Ga. 117, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (2019). Trial court did not err in permitting testimony that when the victim obtained a temporary protective order for the victim, the victim also obtained a temporary protective order for a client, the mother of the defendant’s child, to provide context for previous interactions between the victim and the defendant and to explain the dynamic between them as the testimony was very brief and the defendant offered no persuasive argument for why the trial court’s decision not to exclude the testimony was an abuse of discretion. May-

nard v. State, 355 Ga. App. 84, 842 S.E.2d 532, 2020 Ga. App. LEXIS 261 (2020). Evidence of defendant making victim participate in online sexual performance. - Trial court did not err in denying the defendant’s motion in limine to exclude evidence that the defendant made the victim participate in online sexual performances because the evidence was relevant to the defendant’s intent, identity, and propensity to commit the crimes against the victim and the probative value of the evidence was great because the evidence provided a narrative of how the victim’s abuse began, how the grooming process began, and why the victim delayed disclosure. Hamby v. State, 358 Ga. App. 105, 853 S.E.2d 874, 2021 Ga. App. LEXIS 11 (2021). Images of child pornography. - Trial court did not err in limiting the defendant’s cross-examination of the codefendant as to images of child pornography found on the co-defendant’s phone because the trial court permitted the defendant’s counsel to question the co-defendant as to whether the co-defendant was testifying against the defendant in an attempt to curry favor with the state immediately after the defendant asked the co-defendant about the images. Johnson v. State, 348 Ga. App. 667, 824 S.E.2d 561, 2019 Ga. App. LEXIS 69 (2019). Trial court did not err denying new trial and allowing state to introduce evidence of pornography found in appellant’s bedroom because appellant was specifically charged with several counts of child molestation and allegations included showing children images of adult pornography, thus, evidence of pornography found in bedroom was relevant and carried significant probative weight because it assisted state in proving those allegations. Rider v. State, 366 Ga. App. 260, 883 S.E.2d 374, 2022 Ga. App. LEXIS 547 (2022). Probative value of drug evidence outweighed by prejudicial effect. - Evidence recovered by law enforcement during a search of the co-indictee’s home, including marijuana, baggies, and a digital scale, was clearly relevant and admissible as the defendant and the co-indictee

were jointly charged with conspiracy to distribute marijuana based upon their attempt to sell marijuana to the victim prior to the victim’s death; furthermore, for the same reasons, the defendant failed to show that the admission of that evidence was more prejudicial than probative. Thorpe v. State, 304 Ga. 266, 818 S.E.2d 547, 2018 Ga. LEXIS 545 (2018). Trial court did not abuse the court’s discretion by denying the appellant’s pretrial motion to exclude evidence of the purchase and use of marijuana because the evidence was intrinsic since it explained who an individual was and why the appellant believed that the victim would have cash to steal; thus, the drug evidence was necessary to complete the story of the crime for the jury. McCammon v. State, 306 Ga. 516, 832 S.E.2d 396, 2019 Ga. LEXIS 505 (2019). Trial court erred in admitting evidence of the facts underlying a prior conviction for possession with intent to distribute marijuana and possession of a firearm during the commission of a crime because, inter alia, the defendant’s knowledge was not at issue, and the danger of unfair prejudice was significant where the only direct evidence of guilt came from the testimony of a single witness. Wright v. State, 362 Ga. App. 867, 870 S.E.2d 484, 2022 Ga. App. LEXIS 112 (2022). Admission of evidence of the alleged use, sale, or purchase of illegal substances by defendant during the murder trial did not outweigh its probative value because it was necessary to complete the story of the crime and to explain why defendant and the victim were engaged in an ongoing feud that led to the shootings and because defendant relied on the botched drug transaction and ensuing dispute to attempt to justify the shootings. Jackson v. State, 2023 Ga. LEXIS 22. 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 Ga. App. LEXIS 456 (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 Ga. App. LEXIS 176 (2017). During the defendant’s trial for cruelty to a child, the trial court abused the court’s discretion by admitting the defendant’s wife’s testimony that the wife observed the defendant molesting their twoyear-old daughter a day or two after the incident giving rise to the instant charge because the acts were not similar and involved different children, the wife’s testimony was not probative of whether the defendant committed the charged crime, and the evidence was extremely prejudicial. The error was not harmless because the defendant denied the charge at trial and the jury acquitted the defendant of family violence battery against the wife despite the wife’s testimony. Maqrouf v. State, 349 Ga. App. 174, 825 S.E.2d 569, 2019 Ga. App. LEXIS 134 (2019), overruled in part, Flowers v. State, 307 Ga. 618, 837 S.E.2d 824, 2020 Ga. LEXIS 8 (2020). Trial court erred in allowing the state to introduce evidence of the Department of Family and Children Services (DFCS) safety plan and placement of the child because the potential for prejudice substantially outweighed any probative value of the safety plan and accompanying testimony given that the safety plan referred to the mother as the “maltreater,” which could have given the jury the impression that the mother was guilty. Hines v. State, 353 Ga. App. 710, 839 S.E.2d 208, 2020 Ga. App. LEXIS 71 (2020).

Criminal Cases (Cont’d) Even if the evidence that the victim had made a prior allegation of child molestation arguably bore some minimal relevance to the defendant’s guilt, the trial court acted within its discretion in concluding that the minor probative value of any such evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay or waste of time. Vallejo v. State, 362 Ga. App. 33, 865 S.E.2d 640, 2021 Ga. App. LEXIS 555 (2021). Prejudicial impact outweighed probative value in child’s death. - In an action arising from the death of defendant’s son after being left in a hot car, the trial court abused its discretion by admitting evidence that the defendant hired a prostitute because the unfair prejudicial effect of the evidence was substantially greater than any probative value where the evidence showed not only that the defendant repeatedly cheated on his wife but also that in doing so, committed three more sex-related crimes. Harris v. State, 314 Ga. 238, 875 S.E.2d 659, 2022 Ga. LEXIS 169 (2022). 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 Ga. App. LEXIS 80 (2016), cert. denied, No. S16C1038, 2016 Ga. LEXIS 551 (Ga. Sept. 6, 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 Ga. App. LEXIS 80 (2016), cert. denied, No. S16C1038, 2016 Ga. LEXIS 551 (Ga. Sept. 6, 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 Ga. App. LEXIS 80 (2016), cert. denied, No. S16C1038, 2016 Ga. LEXIS 551 (Ga. Sept. 6, 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 Ga. App. LEXIS 427, overruled in part, Martin v. McLaughlin, 298 Ga. 44, 779 S.E.2d 294, 2015 Ga. LEXIS 793 (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 Ga. App. LEXIS 359 (2015). Probative value not outweighed by prejudicial effect in child sexual abuse case. - Trial court was authorized to conclude that admission of the defendant’s federal convictions for possession and distribution of child pornography was not unfairly prejudicial because the state had a need for the evidence based on the victim’s delayed outcry and the defendant’s attack on the victim’s credibility, including testimony from the defendant’s mother that the victim never complained about anything hurting when the mother babysat and admitting telling detectives that the victim was a liar because the doors in the mother’s home locked. Wrice v. State, 354 Ga. App. 895, 842 S.E.2d 301, 2020 Ga. App. LEXIS 241 (2020). 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 Ga. LEXIS 651 (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 Ga. LEXIS 136 (2018). In the defendant’s murder trial, the trial court erred in allowing the state to introduce an AK-47 rifle and ammunition found in the defendant’s home for impeachment purposes under O.C.G.A. § 24-6-621 after the defendant testified that the defendant’s spouse had removed the murder weapon from the home because the defendant “never wanted to see a gun in [her] life.” The evidence was not unduly prejudicial under O.C.G.A. § 24-4403 and was not emphasized by the state. Dunbar v. State, 309 Ga. 252, 845 S.E.2d 607, 2020 Ga. LEXIS 461 (2020). Trial court did not abuse the court’s discretion by deciding that the probative value of the evidence of the beating was not substantially outweighed by the danger of unfair prejudice because the evidence showed the nature of the parties’ relationship and the defendant’s motive in shooting the victim. There was nothing inherent in the evidence that would create a risk that the defendant would be convicted on a ground different from proof specific to the offense charged. Flowers v.

Criminal Cases (Cont’d) State, 307 Ga. 618, 837 S.E.2d 824, 2020 Ga. LEXIS 8 (2020). Trial court did not erroneously admit an inmate’s testimony that the defendant confessed to shooting the victims because the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice as the circumstances on which the defendant relied - including the absence of certain details and the inmate’s altercation with the defendant’s friends - did not undermine the probative value of the defendant’s confession; and the inmate’s testimony about the defendant’s confession - whether credible or not - was undoubtedly probative. Thomas v. State, 310 Ga. 579, 853 S.E.2d 111, 2020 Ga. LEXIS 928 (2020). Trial court did not abuse its discretion by admitting evidence that defendant had physically assaulted the victim before his death because it was admissible as to defendant’s intent and the prior acts were highly probative given that defendant’s squeezing the victim around the rib cage was the same type of act alleged to have caused his death and the acts occurred within two years of the victim’s death. Hounkpatin v. State, 313 Ga. 789, 873 S.E.2d 201, 2022 Ga. LEXIS 153 (2022). Trial court did not abuse its discretion by admitting testimony that prior to the murder defendant owned dirt bikes, the victim had expressed an interest in purchasing one, and one was stolen during a test drive because defendant’s motive for shooting the victim was relevant and probative given that only weeks had passed between the bike being stolen and the victim’s murder, and defendant admitted shooting someone he believed had stolen one of his bikes. Jordan v. State, 313 Ga. 841, 874 S.E.2d 67, 2022 Ga. LEXIS 161 (2022). Trial court did not abuse its discretion by admitting evidence that a rifle and shell casings were stolen from a police officer’s apartment, which the State alleged were used in the victim’s murder, because the admission of the physical evidence was not hearsay and because the evidence was relevant and probative, as the weapon and ammunition were stolen

four months before the murder, they were the same caliber used in the murder, the exact number of branded cartridges stolen were found at the murder scene, and defendant’s known associate lived next door to where the burglary occurred. Jordan v. State, 313 Ga. 841, 874 S.E.2d 67, 2022 Ga. LEXIS 161 (2022). Probative value of girlfriend’s testimony not outweighed by prejudicial effect. - Trial court did not abuse its discretion in determining that the probative value of the former girlfriend’s testimony was not substantially outweighed by its prejudicial effect because the State’s theory of the case, that defendant falsely accused the victim of armed robbery as a means to control, harass, and intimidate her after she broke up with him, would lack context and seem much less believable without a showing as to why defendant would falsely accuse the victim of armed robbery. Whitson v. State, 359 Ga. App. 757, 860 S.E.2d 70, 2021 Ga. App. LEXIS 279 (2021). Probative value outweighed by prejudicial effect in robbery case. - Although evidence of the defendant’s prior robberies was relevant for the purpose of showing intent, the evidence was improperly admitted as the prosecutorial need for the other act evidence was minimal; the probative value of the other robberies was quite low; and the probative value of the other act evidence was outweighed by its prejudicial impact suggesting that the defendant was a serial robber. Further, the admission of the evidence was not harmless because it was not so overwhelming or so marginal that the jury’s verdict was not likely to be impacted. Sloan v. State, 351 Ga. App. 199, 830 S.E.2d 571, 2019 Ga. App. LEXIS 425 (2019). 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 rel-

evance 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 Ga. LEXIS 129, cert. denied, 139 S. Ct. 110, 202 L. Ed. 2d 69, 2018 U.S. LEXIS 5541 (2018). Overdrawn checking account. - 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 Ga. LEXIS 68 (2018). Use of firearms and demonstrative aids. - Defendant failed to show that the trial court abused the court’s discretion in allowing the state to use firearms as demonstrative aids after the trial court agreed with the state that the demonstration was somewhat probative to support the state’s theory of the case and rebut the defense theory and the only potential prejudice that the defendant pointed to was jury confusion over whether the guns displayed in court were actually the guns used in the commission of the alleged crimes, which was addressed when the jury was informed the guns were not. Robinson v. State, 308 Ga. 543, 842 S.E.2d 54, 2020 Ga. LEXIS 293 (2020). Jail deputy’s body camera. Trial court did not abuse its discretion by concluding that a jail deputy’s body-camera recording was admissible under O.C.G.A. § 24-4-403 because the defendant’s statement “I’m a murderer” was highly probative since he was charged with murder and at trial he claimed he shot the victim in self-defense, the video allowed the jury to assess defendant’s credibility directly,

and the two-minute video, presented with almost no narrative testimony, was not overly prejudicial. Early v. State, 313 Ga. 667, 872 S.E.2d 705, 2022 Ga. LEXIS 133 (2022). Admission of the prior rape was proper because the need for the evidence was high where the case boiled down to the defendant’s word against the victim’s, and the prior incident was similar to the charged offense in that both victims were females close in age, in both instances the defendant made contact with the victims under the auspices of business and a professional relationship, and in both the defendant purchased things or attempted to give things to the victim, and the risk of unfair prejudice was relatively low. Williams v. State, 366 Ga. App. 114, 881 S.E.2d 1, 2022 Ga. App. LEXIS 531 (2022). 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 Ga. App. LEXIS 728 (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 Ga. LEXIS 890 (2017). Trial court did not abuse the court’s discretion in finding that the probative value of the evidence related to the defendant’s gang affiliation was not substan-

Criminal Cases (Cont’d) tially outweighed by the danger of unfair prejudice as there was nothing inherent in that evidence to create a risk that the defendant would be convicted on a ground different from proof specific to the offenses charged. Williams v. State, 356 Ga. App. 19, 846 S.E.2d 190, 2020 Ga. App. LEXIS 403 (2020). In the defendant’s murder trial, defense counsel opened the door to evidence from two witnesses about the defendant’s gang activities and prior murders by suggesting that the witnesses had named the defendant as the shooter because the witnesses were afraid of the actual shooter; this evidence was relevant under O.C.G.A. § 24-4-401 and not unduly prejudicial under O.C.G.A. § 24-4-403. Strother v. State, 305 Ga. 838, 828 S.E.2d 327, 2019 Ga. LEXIS 341 (2019). Trial court did not abuse the court’s discretion when the court admitted extrinsic evidence of gang activity because the lawyer’s statements during opening that the defendant was a member of a gang and that the defendant was in a bind with that gang were not evidence, and the state still had to prove that the defendant was a member of a criminal street gang as well as a connection between that gang and the crimes at issue. Jordan v. State, 307 Ga. 450, 836 S.E.2d 86, 2019 Ga. LEXIS 801 (2019). Prosecutorial need for the other acts evidence showing gang membership was high because, without it, it was unclear what motive the defendant would have had to shoot the victim in a crowded park merely because the victim was in a dispute with another gang member. Armstrong v. State, 310 Ga. 598, 852 S.E.2d 824, 2020 Ga. LEXIS 926 (2020). Trial court did not err in not excluding the gang evidence as that evidence was not just highly probative but indeed necessary to prove several of the essential elements of the Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., offense, including the existence of the gang, the first defendant’s participation therein, and the nexus between the crimes and the gang’s interests. Butler v. State,

310 Ga. 892, 855 S.E.2d 551, 2021 Ga. LEXIS 75 (2021). 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). 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 Ga. App. LEXIS 42 (2016). Weapons and ammunition as evidence. - Trial court did not err by admitting evidence of the weapons and ammunition officers found when the defendant was arrested because the evidence was relevant as consciousness of guilt and the evidence was not unduly prejudicial as the state had a great need for the evidence given that it was a circumstantial case and the state did not argue that the gun and ammunition were used in the drive-by shootings. Harris v. State, 313 Ga. 225, 869 S.E.2d 461, 2022 Ga. LEXIS 37 (2022). Evidence of plan to commit separate robbery same day not unduly prejudicial. - In the defendant’s robbery trial, evidence that the group had planned to execute another robbery the same day was intrinsic under O.C.G.A. § 24-4-404; it established the members of the group, confirmed the group’s goal, and explained how the conspiracy had transformed into the robbery of the victims when they showed up flashing cash around. Because the evidence was intrinsic, it was not subject to the notice re-

quirements of Rule 404(b). The evidence was not unduly prejudicial. Brown v. State, 350 Ga. App. 104, 828 S.E.2d 110, 2019 Ga. App. LEXIS 250 (2019). 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 Ga. App. LEXIS 596 (2014). Evidence needlessly cumulative. - Although the trial court allowed the first neighbor to testify about the defendant’s interest in contacting law enforcement, the trial court did not abuse the court’s discretion when the court excluded the testimony of the second neighbor about the defendant’s interest in contacting law enforcement because the jury heard the recording of the defendant’s 911 calls, the jury was well aware that the defendant was interested in contacting law enforcement just prior to the shooting, and the testimony of a second neighbor about that interest would have had little probative value and would have been needlessly cumulative. Corley v. State, 308 Ga. 321, 840 S.E.2d 391, 2020 Ga. LEXIS 172 (2020). 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 Ga. App. LEXIS 335 (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 Ga. App. LEXIS 547 (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 Ga. App. LEXIS 25 (2017), cert. denied, No. S17C1084, 2017 Ga. LEXIS 581 (Ga. June 30, 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

Criminal Cases (Cont’d) 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 Ga. App. LEXIS 281 (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 Ga. App. LEXIS 190 (2017), cert. denied, No. S17C1673, 2017 Ga. LEXIS 865 (Ga. Oct. 2, 2017). Prior refusal of breath test in DUI case. - Trial court did not err by denying the state’s request to introduce evidence of the defendant’s prior refusal to take a state-administered breath test during the defendant’s DUI trial because the Supreme Court of Georgia has previously held that a defendant’s refusal to submit to a breath test may not be admitted into evidence at a subsequent criminal trial. State v. Voyles, 355 Ga. App. 903, 846 S.E.2d 170, 2020 Ga. App. LEXIS 409 (2020). 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. LoganGoodlaw v. State, 331 Ga. App. 671, 770 S.E.2d 899, 2015 Ga. App. LEXIS 219 (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 Ga. App. LEXIS 774 (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 Ga. App. LEXIS 115 (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 Ga. LEXIS 203 (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 Ga. App. LEXIS 34 (2016), aff’d, 301 Ga. 544, 802 S.E.2d 234, 2017 Ga. LEXIS 542 (2017). 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 Ga. App. LEXIS 570 (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 Ga. App. LEXIS 599 (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 Ga. App. LEXIS 608 (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 Ga. App. LEXIS 546 (2016). Probative value of the defendant’s prior armed robberies was not substantially outweighed by the danger of unfair prejudice because the prior crimes involved very little, if any, planning, and were committed by the defendant alone, while the evidence in the instant case showed that the charged offense involved at least two perpetrators who committed the crime after a certain degree of planning with apparent inside information. The only similarities between the prior acts and the current offense was the use of a handgun to take money. Arrington v. State, 355 Ga. App. 361, 844 S.E.2d 256, 2020 Ga. App. LEXIS 315 (2020). Defendant’s prior conviction for possession of cocaine with intent to distribute was not a conviction that raised the risk of a verdict tainted by improper considerations in the defendant’s trial for murder and, therefore, there was no error in the state’s refusal to stipulate to the fact of the prior conviction. Stephens v. State, 307 Ga. 731, 838 S.E.2d 275, 2020 Ga. LEXIS 48 (2020). 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.

Criminal Cases (Cont’d) State, 301 Ga. 544, 802 S.E.2d 234, 2017 Ga. LEXIS 542 (2017). High danger of prejudicial impact from admission of drug evidence. - There was no abuse of discretion in the trial court’s exclusion of evidence that the victim sold or used drugs after the court weighed the evidence as required by O.C.G.A. § 24-4-403 and concluded that the scant probative value of evidence regarding drug use or sale at the party was substantially outweighed by the high danger of unfair prejudice. Jones v. State, 358 Ga. App. 584, 855 S.E.2d 761, 2021 Ga. App. LEXIS 95 (2021). 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 Ga. App. LEXIS 384 (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 gasolinesoaked 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 Ga. LEXIS 394 (2016). Probative value not outweighed 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 Ga. App. LEXIS 370 (2015). Failure to come forward about murder. - Defendant’s contention that trial counsel was ineffective for failing to object under O.C.G.A. § 24-4-403 to the various questions and answers concerning the defendant’s failure to come forward to law enforcement concerning the victim’s murder was without merit because the defendant’s strategy of self-defense was not prejudiced as the evidence strongly suggested that the crime was not selfdefense. The evidence showed that the defendant tied up the victim, left the victim in a locked and alarmed residence, fled in the victim’s vehicle and with the victim’s property, and then sped away when a police officer attempted to initiate a traffic stop. Jackson v. State, 306 Ga. 266, 830 S.E.2d 99, 2019 Ga. LEXIS 443 (2019). 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 Ga. App. LEXIS 589 (2017), aff’d, 306 Ga. 1, 829 S.E.2d 126, 2019 Ga. LEXIS 383 (2019). In light of the need to consider all the circumstances surrounding the extrinsic offense in an analysis under O.C.G.A. § 24-4-403, the defendant failed to meet the defendant’s burden to demonstrate

error by the partial record the defendant designated on appeal. Adams v. State, 306 Ga. 1, 829 S.E.2d 126, 2019 Ga. LEXIS 383 (2019). 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 Ga. LEXIS 498 (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 Ga. LEXIS 54 (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 Ga. LEXIS 56 (2018). After the defendant was convicted of, inter alia, malice murder, the trial court

did not abuse the court’s discretion in finding that the probative value of the photograph depicting the gunshot wounds to the victim’s body was not substantially outweighed by the risk of unfair prejudice to the defendant because photographic evidence that fairly and accurately depicted a body and was offered for a relevant purpose was not generally inadmissible merely because it was gruesome. Favors v. State, 305 Ga. 366, 825 S.E.2d 164, 2019 Ga. LEXIS 129 (2019). Trial court did not err by overruling the defendant’s objection to the admission of 17 autopsy photos because the medical examiner testified that none were duplicative and, thus, the probative value was not outweighed by the danger of the photograph’s prejudicial effect. Moore v. State, 307 Ga. 290, 835 S.E.2d 610, 2019 Ga. LEXIS 731 (2019). Trial court did not err by admitting a pre-autopsy photograph of the victim’s upper body to show the jury precisely where the victim was shot and to explain to the jury the effect the bullet had in lacerating the victim’s lung and liver as the photograph was not graphic and did not show any autopsy cuts. Allen v. State, 307 Ga. 707, 838 S.E.2d 301, 2020 Ga. LEXIS 46 (2020). Trial court did not abuse the court’s discretion by admitting into evidence an autopsy photograph showing the victim’s exposed brain because the photograph was relevant as evidence of the severity of the victim’s injury, the single photograph was not particularly gory or gruesome, and the court concluded that the trial court did not abuse the court’s discretion in deciding that the photograph’s probative value was not substantially outweighed by the danger of unfair prejudice. Flowers v. State, 307 Ga. 618, 837 S.E.2d 824, 2020 Ga. LEXIS 8 (2020). Trial counsel was not ineffective for failing to object to the crash-scene photographs depicting the deceased passenger’s body in the vehicle wreckage as the photographs were not especially gory or gruesome; and photographic evidence that fairly and accurately depicted a body or crime scene and was offered for a relevant purpose was not generally inadmissible merely because the photograph was grue-

Criminal Cases (Cont’d) some. Calhoun v. State, 308 Ga. 146, 839 S.E.2d 612, 2020 Ga. LEXIS 138 (2020). 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 Ga. LEXIS 653 (2016). Trial court did not abuse the court’s discretion in admitting a photograph showing the defendant in possession of a gun because the photograph was relevant to show that the defendant, at some point, possessed the type of gun used in the crimes at issue; and the probative value of the evidence was not substantially outweighed by its prejudice, as even evidence that a defendant owned and frequently carried a pistol did not impute to the defendant generally bad character. Lyons v. State, 309 Ga. 15, 843 S.E.2d 825, 2020 Ga. LEXIS 361 (2020). In an action arising from the death of defendant’s son after being left in a hot car, the trial court abused its discretion by admitting nine separate exhibits showing full-page pictures of the defendant’s erect penis because the unfair prejudicial impact of the pictures was quite high. Harris v. State, 314 Ga. 238, 875 S.E.2d 659, 2022 Ga. LEXIS 169 (2022). Photographs not more prejudicial and therefore admissible. - Defendant’s conviction for malice murder was upheld because trial court did not abuse discretion by concluding that probative value of photograph’s depiction of defendant holding rifle was not substantially outweighed by danger of unfair prejudice as it was relevant to show that defendant, at some point, possessed type of gun used in crimes at issue. Perkins v. State, 313 Ga. 885, 873 S.E.2d 185, 2022 Ga. LEXIS 154 (2022). Social media messages admissible. - Trial court did not abuse the court’s discretion in admitting social media messages from the defendant to one of the

codefendants because the messages were relevant as the messages showed that the defendant and the codefendant were still on good terms while they were both being prosecuted for the murder, which tended to make it less likely that the defendant was an unwitting bystander to a murder carried out solely by the two codefendants; and there was no danger of unfair prejudice from the messages. Wilson v. State, 315 Ga. 728, 883 S.E.2d 802, 2023 Ga. LEXIS 29 (2023). Harmless error in admission of Facebook photo. - Even if the trial court erred in admitting the three photographs posted to Facebook under O.C.G.A. § 24-4-404(b) in the defendant’s felony murder trial, the error was harmless because the state presented strong independent evidence of the defendant’s guilt as a party to the felony murder, including a photo depicting the defendant holding the handgun used in the murder and that the defendant’s phone was used to order the pizza the victim attempted to deliver. Lofton v. State, 309 Ga. 349, 846 S.E.2d 57, 2020 Ga. LEXIS 474 (2020). “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). Homemade rap video admissible. - Homemade rap video was properly admitted into evidence because the video was relevant as it connected the defendant and the codefendants to the murder weapon, and it implicated one of the codefendants in a robbery, very close in time to the crimes in this case, making it more likely that it was the defendant and the codefendants who possessed the murder weapon and used it to kill the victim; the video provided further evidence of a conspiracy by showing the defendant and the codefendants together in the days after the shooting, brandishing a gun of the same model as the murder weapon, and boasting of having committed a robbery;

and, although the video might have cast the defendant in an unflattering light, it did not do so unfairly. Wilson v. State, 315 Ga. 728, 883 S.E.2d 802, 2023 Ga. LEXIS 29 (2023). Video of police interview admissible. - Trial court did not abuse its discretion by holding that O.C.G.A. § 244-403 did not bar the admission of a video recording of defendant’s statement to the police because the content of the interview was highly probative of defendant’s guilt, as it helped establish his presence at the murder scene with the other suspects and the victim and the motive for the crime, and the investigator testified about the interview and the incriminating statements defendant made. The technical difficulties and extra time associated with playing the recording did not deprive it of probative value. Barrett v. State, 312 Ga. 676, 864 S.E.2d 403, 2021 Ga. LEXIS 653 (2021). Post-incision autopsy photo. - Trial court did not err when the court admitted into evidence a post-incision autopsy photo because, although the trial court did not cite the text of O.C.G.A. § 24-4-403 in the court’s ruling, the court discussed the photo’s relevance and potential prejudice, implicitly conducting the proper analysis. Albury v. State, 314 Ga. 459, 877 S.E.2d 548, 2022 Ga. LEXIS 231 (2022). 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 Ga. LEXIS 407 (2016). Photo arrays suggestive, not prejudicial. - Since both the victim and the victim’s brother testified that they knew the defendant prior to the incident, and at trial, both identified the defendant as the person who shot the victim, even if the photo arrays were suggestive, the victim and the brother each had an independent

basis for the identification of the defendant and the defendant suffered no prejudice. Williams v. State, 353 Ga. App. 821, 840 S.E.2d 32, 2020 Ga. App. LEXIS 90 (2020). Officer’s identification of defendant in photographs proper. - Trial court did not abuse the court’s discretion in allowing an officer to identify the defendant in the social media photographs presented at trial because the officer established years of familiarity with the defendant, and that the officer became familiar with the defendant in the officer’s capacity as a law enforcement officer, or even in the officer’s capacity as a gang expert, did not prevent the officer from providing identification testimony as a lay witness. Bullard v. State, 307 Ga. 482, 837 S.E.2d 348, 2019 Ga. LEXIS 843 (2019). Use of social media posts. - Trial court did not err by admitting evidence of the defendant’s social media posts because the fact that the defendant claimed to possess a gun that could have been used in the drive-by shootings had a tendency to make it more probable that one of the weapons used in the shootings belonged to the defendant. Defendant failed to show that the evidence was unfairly prejudicial because the evidence was used to show, in a circumstantial case in which no murder weapon was found, that the defendant had in the defendant’s possession a week before the shootings a type of gun that could have been used in those shootings. Harris v. State, 313 Ga. 225, 869 S.E.2d 461, 2022 Ga. LEXIS 37 (2022). 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

Criminal Cases (Cont’d) 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 Ga. LEXIS 977 (2017). Trial court did not err by admitting a recording of a jail phone call during which defendant discussed the decision to remove the victim from life support because the contents of the call were relevant to the jury’s consideration of intent and could have refuted any suggestion that the victim’s injuries were caused by accident. Whited v. State, 315 Ga. 598, 883 S.E.2d 342, 2023 Ga. LEXIS 4 (2023). Recorded jail phone call admissible. - In a recorded jail call in which the defendant told the defendant’s girlfriend that the defendant had messed up, the trial court did not abuse the court’s discretion in admitting the call into evidence because, although the defendant’s statement might have cast the defendant in a prejudicial light, it was not an unfairly prejudicial light; and the evidence was probative as the evidence indicated that after the shooting the defendant believed the defendant had done something wrong. Bannister v. State, 306 Ga. 289, 830 S.E.2d 79, 2019 Ga. LEXIS 437 (2019). Exclusion prohibited establishing possibility of intoxication of driver who abandoned vehicle. - In a personal injury case, the trial court abused the court’s discretion by granting the defendant’s motion in limine because the excluded evidence was relevant to the most important issue of the case, whether the defendant parked the vehicle in the middle of the road; thus, the trial court’s exclusion precluded the plaintiff from establishing that the defendant may have been intoxicated at the time the vehicle was left and/or from opportunities to impeach the defendant’s testimony. Barrett v. Burnette, 348 Ga. App. 838, 824 S.E.2d 701, 2019 Ga. App. LEXIS 90 (2019), cert. denied, No. S19C0930, 2019 Ga. LEXIS 780 (Ga. Nov. 4, 2019). 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 at 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 Ga. App. LEXIS 270 (2018), cert. denied, No. S18C1280, 2018 Ga. LEXIS 728 (Ga. Nov. 15, 2018). Evidence admissible. - With regard to images and notes introduced during an investigator’s testimony, trial counsel’s failure to make an objection on the ground that the evidence was more prejudicial than probative did not meet the defendant’s burden under Strickland because the state argued that the evidence was representative of the types of images viewed by the defendant, not that they were the images the defendant viewed, and the images were helpful in demonstrating the type of content in the defendant’s phone and web activity. Holzheuser v. State, 351 Ga. App. 286, 828 S.E.2d 664, 2019 Ga. App. LEXIS 430 (2019), cert. denied, 308 Ga. 401, 841 S.E.2d 735, 2020 Ga. LEXIS 246 (2020). Prior murder 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 Ga. LEXIS 144 (2015). Drug evidence admissible. 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 drugdistribution 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 Ga. App. LEXIS 359 (2017), cert. denied, No. S18C0166, 2018 Ga. LEXIS 217 (Ga. Apr. 16, 2018). Prior sexual assault evidence admissible - 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 Ga. App. LEXIS 37 (2018). Evidence admissible to combat attacks on victim’s credibility. - Trial court did not err in admitting evidence of two other acts because the probative value of the other acts was great given the state’s need for evidence to combat the defendant’s attacks on the victim’s credibility and negate the defense of consent, and the extrinsic acts, which involved the defendant’s attempt at non-consensual sexual gratification with women the defendant did not know, were not of such a heinous nature that the acts were likely to incite the jury to an irrational decision. Cross v. State, 354 Ga. App. 355, 839

S.E.2d 265, 2020 Ga. App. LEXIS 82 (2020), cert. denied, No. S20C1227, 2020 Ga. LEXIS 855 (Ga. Nov. 16, 2020). Evidence of ammunition admissible. - Trial court did not err in admitting evidence of ammunition found in the defendant’s home because although the ammunition’s probative value was limited, the prejudicial impact was limited too, the testimony clearly conveyed that the connection between the ammunition and the bullet with which the victim was shot was tenuous, if there were any connection at all, and the other evidence against the defendant was strong. Davidson v. State, 304 Ga. 460, 819 S.E.2d 452, 2018 Ga. LEXIS 629 (2018). Admission of testimony of law enforcement officer regarding drugs. - 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 Ga. App. LEXIS 559 (2016), cert. denied, No. S17C0590, 2017 Ga. LEXIS 411 (Ga. May 15, 2017). 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 Ga. App. LEXIS 361 (2016). Videotape evidence inadmissible in armed robbery. - In an action for armed robbery, aggravated assault, and other crimes, the trial court erred when the court admitted evidence of a second robbery, including the video and defendant’s shoes, as more probative than

Criminal Cases (Cont’d) prejudicial as the prosecutorial need for the introduction of the video of the second robbery was minimal since the male victim repeatedly identified the defendant as the assailant. Allen v. State, 365 Ga. App. 599, 879 S.E.2d 666, 2022 Ga. App. LEXIS 476 (2022). 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 Ga. App. LEXIS 68 (2017), cert. denied, No. S17C1278, 2017 Ga. LEXIS 678 (Ga. Aug. 14, 2017). Video recordings from officers’ body cameras probative. - After the defendant murdered the defendant’s two infant daughters by drowning the children, the video-recordings of the crime scene taken from the body cameras of two police officers who responded to the defendant’s 911 call were relevant and admissible, with the exception of the last four minutes of the second recording, because those portions as a whole were relevant to show the children’s manner of death; the video-recordings were not needlessly cumulative of the manner of death as the state was not required to stipulate to the cause of death and the circumstances surrounding the murders; and the video-recordings were probative of matters other than the manner of death, including rebutting the defendant’s insanity defense. Morgan v. State, 307 Ga. 889, 838 S.E.2d 878, 2020 Ga. LEXIS 102 (2020). In the defendant’s trial for the murder of the defendant’s girlfriend’s 17-monthold daughter, the trial court did not err in admitting other-acts evidence under O.C.G.A. § 24-4-404(b) that showed the defendant’s violent behavior toward the defendant’s former spouses and their children because these violent acts proved

intent and lack of mistake or accident. Intent was in issue because the defendant denied harming the victim. Naples v. State, 308 Ga. 43, 838 S.E.2d 780, 2020 Ga. LEXIS 96 (2020). Evidence of defendants’ financial worth. - In a premises liability suit, the trial court erred by excluding evidence of the defendants’ security expenditures by failing to determine whether the financial worth of the defendants was relevant to the issue since the plaintiffs contended that such evidence would show that the defendants’ increased security expenditures constituted only a small percentage of the defendants’ security budget. Cham v. ECI Mgmt. Corp., 353 Ga. App. 162, 836 S.E.2d 555, 2019 Ga. App. LEXIS 611 (2019), cert. denied, No. S20C0600, 2020 Ga. LEXIS 562 (Ga. July 15, 2020), aff’d, 311 Ga. 170, 856 S.E.2d 267, 2021 Ga. LEXIS 85 (2021). Evidence of arrest following high speed chase properly admitted. - Trial court did not abuse the court’s discretion by allowing the evidence of the defendant’s arrest following the highspeed chase because the evidence was intrinsic as both necessary to complete the story of the crimes and inextricably intertwined with the evidence regarding the charged offenses since the evidence established a connection between the defendant and the stolen gun used in the bank robbery and the probative value was not substantially outweighed by the danger of unfair prejudice under the circumstances. Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162, 2019 Ga. App. LEXIS 494 (2019). Police body-cam recording of shooting victim admissible. - In the defendant’s murder trial, the trial court did not err under O.C.G.A. § 24-4-403 in allowing a police body-camera recording that depicted the victim with the victim’s blood pooling on the ground and flowing from the victim’s head and face as the victim waited for an ambulance because, although the recording was disturbing, the recording was relevant and probative to show the crime scene, the victim’s injuries, and the victim and the victim’s fiancee’s condition and demeanor as the victims spoke to officers about the shooting.

Varner v. State, 306 Ga. 726, 832 S.E.2d 792, 2019 Ga. LEXIS 593 (2019). Evidence of domestic abuse admitted. - In the defendant’s trial for the murder of a former girlfriend’s 13-monthold daughter, evidence that the defendant had abused the child’s mother was not introduced for one of the purposes listed in O.C.G.A. § 24-4-404(b), but rather to show the mother’s possible fear under O.C.G.A. § 24-6-622, which allowed evidence of a witness’s feelings towards the parties and the witness’s relationship to the parties. Virger v. State, 305 Ga. 281, 824 S.E.2d 346, 2019 Ga. LEXIS 111 (2019). Domestic issue admissible. - When the defendant was convicted of felony murder and aggravated assault in connection with the shooting death of the victim, the defendant’s brother-in-law, the evidence regarding the prior incident in which the defendant hit and pushed the defendant’s sister was admissible as intrinsic evidence because the evidence explained why the victim and the defendant’s sister were persistent with their requests that the defendant leave, and why the victim followed the defendant outside of the home to ensure that the defendant left; and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Clark v. State, 306 Ga. 367, 829 S.E.2d 306, 2019 Ga. LEXIS 399 (2019), cert. denied, 140 S. Ct. 1108, 206 L. Ed. 2d 180, 2020 U.S. LEXIS 1059 (2020). 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 Ga. App. LEXIS 26 (2015), cert. dismissed, No. S16C0519, 2016 Ga. LEXIS 278 (Ga. Apr. 4, 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 Ga. App. LEXIS 479 (2017). Fleeing as consciousness of guilt. - Trial court did not abuse the court’s discretion by admitting evidence that the defendant fled a police roadblock because any prejudicial impact from the flight evidence presented was outweighed by its probative value as the evidence showed that the defendant had a guilty conscience for the defendant’s participation in the home invasion and wanted to avoid being apprehended. Jenkins v. State, 313 Ga. 81, 868 S.E.2d 205, 2022 Ga. LEXIS 13 (2022). 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 Ga. App. LEXIS 401 (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 vic-

Criminal Cases (Cont’d) tim’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). 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 Ga. LEXIS 56 (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 Ga. App. LEXIS 346 (2018). Trial court did not abuse the court’s discretion by excluding other acts evidence involving the defendant having exposed oneself to a female customer inside the same store from which the defendant had offered the victim a ride home because undue prejudice might have resulted from the admission of the other

acts evidence and created a likelihood that the jury might convict the defendant because of the other perverted behavior. State v. Isham, 348 Ga. App. 356, 823 S.E.2d 47, 2019 Ga. App. LEXIS 9 (2019). Trial court abused its discretion by ruling that evidence of prior acts of sexual assault were inadmissible in a rape case because the introduction of that evidence was not unfairly prejudicial as the prejudice stemmed from a proper use of the evidence to prove the defendant’s propensity to engage in non-consensual sex with an unconscious or semi-conscious partner; and the probative value of the evidence was substantial as the defendant argued that the victim consented. State v. Ippisch, 366 Ga. App. 501, 883 S.E.2d 162, 2023 Ga. App. LEXIS 17 (2023). Probative value of drug evidence outweighed by prejudicial effect. - Defendant’s prior criminal conviction for possession of cocaine with intent to distribute was properly admitted because the defendant’s current and prior crimes for possession of cocaine with intent to distribute were identical, and the intent required to prove the crimes was necessarily the same; the evidence of the prior crime was highly relevant to the issue of the defendant’s unlawful possession of cocaine with the intent to distribute or sell it; the evidence was important to the state’s case, thereby enhancing its probative value; and any prejudice resulting from the admission of the prior conviction was mitigated by the limiting instruction the trial court gave when the evidence was introduced and in its final charge to the jury. Burgess v. State, 349 Ga. App. 635, 824 S.E.2d 99, 2019 Ga. App. LEXIS 68 (2019), cert. denied, No. S19C0984, 2019 Ga. LEXIS 739 (Ga. Nov. 4, 2019), overruled in part, Hill v. State, 360 Ga. App. 143, 860 S.E.2d 893, 2021 Ga. App. LEXIS 318 (2021). Evidence of prior incarceration. - Trial court did not abuse the court’s discretion in admitting improper character evidence of the appellant regarding the appellant’s previous incarceration because the appellant’s brief statement about being in jail with the individual who assisted in the crime was relevant and admissible to show that the men knew

each other prior to the crimes at issue. Easley v. State, 352 Ga. App. 1, 833 S.E.2d 591, 2019 Ga. App. LEXIS 519 (2019). Admission of sexual intercourse with two other victims. - Trial court did not abuse the court’s discretion in admitting the evidence that the defendant had engaged in sexual intercourse with two other victims who were around the same age as the 14-year-old victim as the defendant put the defendant’s intent at issue in the case, and the probative value of the extrinsic acts evidence was not substantially outweighed by the prejudicial effect of the evidence. Boyd v. State, 351 Ga. App. 469, 829 S.E.2d 163, 2019 Ga. App. LEXIS 265 (2019). Civil Cases 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 timebarred 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 Ga. App. LEXIS 121 (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 Ga. App. LEXIS 202 (2017), cert. denied, No. S17C1952, 2018 Ga. LEXIS 119 (Ga. Feb. 19, 2018). Isolated closing remark in medical malpractice case did not require new trial. - Hospital’s passing statement during closing argument that the defen-

dants were not getting rich while taking care of people was not linked to any argument about whether the defendants should be found liable, their ability to pay any judgment, the amount of damages that should be awarded, the relative wealth of the parties, or any improper evidence of their financial condition; thus, the isolated remark and the trial court’s sympathy charge was not so prejudicial as to require a new trial. Thomas v. Alligood, 358 Ga. App. 703, 856 S.E.2d 80, 2021 Ga. App. LEXIS 113 (2021). 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 Ga. App. LEXIS 2416 (1985) (decided under former O.C.G.A. § 24-2-1). 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 Ga. App. LEXIS 759 (2007) (decided under former O.C.G.A. § 24-2-1). 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 Ga. App. LEXIS 721 (2014). Prejudicial effect of evidence of insurance coverage. - Pedestrian and

Civil Cases (Cont’d) 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 Ga. App. LEXIS 1279 (2008) (decided under former O.C.G.A. § 24-2-1). No prejudicial effect of evidence of insurance coverage. - Even if the trial court failed to perform the balancing test under O.C.G.A. § 24-4-403 before admitting evidence that the defendant was the beneficiary of insurance policies on the husband’s life in order to prove motive, any error was harmless given the overall strength of the evidence, including evidence of the defendant’s decreased interest in the marriage and that the scene

appeared to be staged to look like a break in. Ballin v. State, 307 Ga. 494, 837 S.E.2d 343, 2019 Ga. LEXIS 832 (2019). 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 Ga. LEXIS 154 (2018). 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 Ga. App. LEXIS 566 (2014).

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

Admissibility of rap lyrics or videos in criminal prosecutions, 43 A.L.R.7th Art. 1.