Talifero v. State, 319 Ga. App. 65

Talifero was convicted on three counts of aggravated assault and three counts of possession of a firearm during the commission of a crime; he appeals challenging sufficiency, admission of similar transaction evidence, and denial of mistrial.
Appellant argues the evidence is insufficient to prove he was a party to the crimes.
The state relied on Talifero’s conduct directing and following the shooter and his statements urging action as proof of party liability.
A 2005 arrest and guilty plea for possession of marijuana and carrying a concealed weapon were introduced as similar transaction evidence.
Chisholm testified that he fired the gun and identified the weapon later found; Talifero fled the scene with Chisholm.
The court concluded the similar transaction evidence was improperly admitted and reversed the convictions, but permitted retrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there sufficient evidence Talifero was a party to the crimes?	Talifero drove, followed, and encouraged; thus party liability.	No direct participation or encouragement; mere presence insufficient.	Evidence was sufficient to support party liability, but note on later error.
Was the prior 2005 similar transaction properly admitted?	Evidence shows state of mind and course of conduct; relevant and admissible.	There is no substantial similarity; improper character evidence.	The trial court abused discretion; similar transaction evidence was inadmissible.
Did the admissibility error require reversal or harmless error review?	Admission of similar transaction prejudiced the jury against Talifero.	Any error was harmless given the rest of the record.	Harmless error standard applied; due to prejudice, reversal was required and retrial authorized.
Is retrial permitted after reversal for trial error rather than insufficiency?	Double jeopardy does not bar retrial after reversal for error.	No retrial if evidence was sufficient; risk of double jeopardy.	State may retry Talifero; retrial authorized.

Simpson v. State, 265 Ga. 665 (1995) (criminal intent may be inferred from conduct around the crime)
Parks v. State, 272 Ga. 353 (2000) (accomplice liability principles in party to crime)
McMullen v. State, 316 Ga. App. 684 (2012) (three-prong test for admissibility of similar transaction evidence)
Williams v. State, 261 Ga. 640 (1991) (limits on introduction of prior convictions for similarity evidence)
Okongwu v. State, 220 Ga. App. 59 (1996) (prior acts relevant to bent of mind and course of conduct)
Carver v. State, 248 Ga. App. 718 (2001) (circumstances surrounding prior and current offenses show similarity)
Cochran v. State, 276 Ga. 283 (2003) (prior act sufficiently similar to show identity or intent)
King v. State, 230 Ga. App. 301 (1998) (prior drug transactions not necessarily similar to possession in bodily fluid)
Nance v. State, 274 Ga. 311 (2001) (retrial not barred where reversal due to trial error)