After a jury trial, Roger Lee Green II was convicted of battery and obstruction of a law enforcement officer. He argues on appeal that the trial court erred in admitting other acts evidence, but the trial court did not abuse his discretion in admitting the evidence. Green argues that the trial court erred in refusing to admit evidence of the victim’s prior conviction, but the trial court was authorized to find that Green had not timely notified the state of his intent to introduce the evidence. Green argues that the trial court erred in denying his motion for a mistrial because the state made an improper propensity argument, but the trial court did not abuse his discretion by instead addressing the improper argument through instruction to the jury Finally, Green argues that the trial court improperly increased his sentence, but the record does not support this claim. Accordingly, we affirm.
Viewed in the light most favorable to the judgment, the evidence showed that on the morning of December 11, 2013, Green and a neighbor got into an argument outside of Green’s house. Green became enraged, approached the neighbor as the neighbor backed away, and hit the neighbor in the
The neighbor retrieved his phone and called 911. An officer was dispatched with information that the complainant (Green’s neighbor) had been assaulted by the person who lived next door. That officer arrived at the scene in a marked police vehicle and wearing a uniform. As he pulled into the driveway of Green’s neighbor, he saw Green, whom he recognized from previous interactions, standing in the driveway next door.
The officer approached Green, who knew that he was dealing with a law enforcement officer. Green suspected that the officer wanted to talk with him about the altercation with his neighbor. Three times the officer told Green to come speak with him, and three times Green refused. Green then ran into his house and closed his garage door behind him.
The responding officer called for backup. Once a second officer arrived, the first officer began knocking on Green’s front door and yelling for him to open the door. Instead, Green jumped out a rear window and fled. After a chase, the officers found Green hiding and arrested him.
The jury found Green guilty on two counts of battery against his neighbor and one count of misdemeanor obstruction of the officer who had commanded him to come speak with him. The jury found Green not guilty on another count of misdemeanor obstruction of the other officer.
1. Other acts evidence.
Green challenges the trial court’s admission of other acts evidence regarding two earlier instances in which he obstructed a law enforcement officer. In both instances, law enforcement officers were dispatched to Green’s house in response to calls from his mother complaining of his behavior. In one instance, Green refused to answer the officers’ questions and walked away from the officers despite being told several times that he was not free to leave. He was arrested for obstruction of an officer. In the other instance, Green initially refused to comply with an officer’s commands and made a threatening gesture and comment to the officer; then, after a physical altercation with the officer, he ran from the scene. Officers chased and apprehended him.
The trial court admitted evidence of these incidents as other acts evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”) to show Green’s knowledge. The trial court refused to admit the evidence for any other purpose, including intent.
Rule 404 (b) pertinently provides: “Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including . . . knowledge^]” OCGA § 24-4-404 (b). For other acts evidence to be admissible under Rule 404 (b), the state must make a showing that:
(1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant’s character, see Rule 404 (b); (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403 [OCGA § 24-4-403]; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question.
State v. Jones,
(a) Relevance.
As to the first requirement, Green argues that the evidence was not relevant to an issue other than his character because the ground for which it was admitted—knowledge — was not at issue in the case. We disagree. “Rule 404 (b) permits the admission in cases of all sorts of evidence of other acts relevant to any fact of consequence to the determination of the action, so long as the
Applying this definition of relevant evidence, “we find no abuse of discretion in the trial court’s determination that evidence of [the other instances in which Green obstructed an officer] was relevant and admissible under Rule 404 (b).” Jones,
Nevertheless, Green argues that his knowledge was not at issue in this particular case because he admitted at trial that he knew the person from whom he ran was a law enforcement officer. But there are other types of knowledge relevant to a misdemeanor obstruction charge. See, e.g., Connelly v. State,
At trial, Green challenged the state’s ability to show that he knowingly failed to comply with a lawful command of a law enforcement officer. In defense of the obstruction charge, Green argued that the officer was not acting in the lawful discharge of his official duties when he commanded Green to come speak with him. See generally Ewumi v. State,
The other acts evidence was relevant to the knowledge issue raised by Green’s defense. It established that, on past occasions, Green had encountered officers under similar circumstances and been apprehended or accused of obstructing them when he fled. This evidence tended to show that, on this occasion, Green knew that the officer’s command that he talk with him was made in the lawful discharge of the officer’s official duties and that he was not free to flee. The state argued this use of the other acts evidence below. “[T]he introduction of evidence of repetitive conduct to allow a jury to draw logical inferences about a defendant’s knowledge . . . from such conduct is well-established.” Jones,
[t]he justification for admitting evidence of other acts to show knowledge is similar to the justification for allowing such evidence to show intent and is based on the principle that it is unlikely that repetitive conduct, even if originally innocent, will not result in a defendant having the requisite state of knowledge by the time of the charged crime.
Id. at 161-162 (2) n. 6 (citing 2 Weinstein’s Federal Evidence § 404.22 [2] (2014)).
(b) Probative value.
As to the second requirement, regarding the probative value of the other acts evidence, we look to Rule 403. See Jones,
an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility. The reason for such caution is that relevant evidence in criminal trials is inherently prejudicial.... [T]he major function of Rule 403 is to exclude evidence of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.
Flading v. State,
“Probative value refers to the strength of the connection between the evidence and what it is offered to prove[.]” Milich, Georgia Rules of Evidence § 6:1 (2015). See Huff v. State,
Green argues that the prejudicial value of the other acts evidence substantially outweighed the probative value of the evidence because the other acts evidence went only to show Green’s propensity to obstruct law enforcement officers and did not have a relevant, permissible purpose. But, as discussed above, “we have already determined that [the permissible purpose of Green’s knowledge] was indeed a material issue in this case, and he provides no further argument or citation to authority to support his contention that the [other acts] evidence was inadmissible [under Rule 403].” Curry v. State,
(c) Sufficiency of evidence that Green committed other acts.
Green does not dispute that the third requirement — the sufficiency of evidence that he committed the other acts — was satisfied.
2. Prior conviction of victim.
Green argues that the trial court erred in refusing to admit evidence of his neighbor’s 2001 conviction for deposit account fraud. Under OCGA § 24-6-609, “evidence of a conviction more than ten years old, as calculated in this subsection, shall not be admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.” OCGA § 24-6-609 (b). The trial court held that Green had not given the state sufficient advance written notice and excluded the evidence. We review this ruling for abuse of discretion. See Crowder v. State,
The record shows that this case went to trial on Monday, June 23, 2014. It had been continued from an April trial date. At 1:24 p.m. the prior Thursday, June 19, Green filed with the trial court a written notice of his intent to use his neighbor’s conviction in evidence. Green’s counsel represented to the trial court that this notice was hand-delivered to the state that same day. The state, however, denied receiving the notice on that day The trial court found that, even if Green had given the state written notice immediately after filing it with the court on June 19, this notice was insufficient because it was only “11 business hours” before trial.
We find no abuse of discretion. Although OCGA § 24-6-609 (b) does not set forth a specific time period for “sufficient” notice, it requires that the notice must afford the other party a “fair opportunity to contest the use of such evidence.” In a case construing former OCGA § 24-9-84.1 (b), which contained similar language, we held that the trial court had not abused his discretion in refusing to admit evidence of a conviction where notice of intent to introduce the evidence was given “the day after the jury had been selected but before the presentation of evidence to the jury” Crowder,
3. Denial of mistrial.
Green argues that the trial court erred by failing to grant a mistrial after the prosecutor made an impermissible argument during closing. We disagree.
In his closing, the prosecutor argued: “Mr. Green saw [the officer]. He knows him, sure.
Defense counsel subsequently moved for a mistrial, which the trial court denied. Defense counsel then asked for a further limiting instruction. The trial court denied this request, noting that he had instructed the jury about the limited purpose of the other acts evidence both before its admission and again before the jury began deliberating.
“Whether to declare a mistrial is a question committed to the discretion of the trial judge, and the denial of a mistrial is reversible error only if it appears that a mistrial was essential to preserve the defendant’s right to a fair trial.” McKibbins v. State,
4. Sentence.
Green argues that the trial court improperly increased his sentence. The record shows that, on June 26, 2014, the trial court orally declared that Green would serve two concurrent twelve-month sentences for his battery and obstruction convictions, and Green was taken into custody “immediately.” Also on June 26, the trial court signed a written sentence stating that Green would serve two consecutive twelve-month sentences for the two convictions.
We find no error. “An oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is.” Curry v. State,
Judgment affirmed.
Notes
“[BJecause our new Evidence Code is comparable to the Federal Rules of Evidence, this [c]ourt will give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” Curry v. State,