GUNN v. THE STATE
No. A17A1128
Court of Appeals of Georgia
August 3, 2017
August 22, 2017
804 SE2d 118
DILLARD, Chief Judge.
traditional canons of statutory construction, we are left with an ambiguous statute“) (citation and punctuation omitted). As no ambiguity exists in this case, the rule of lenity does not apply.
4. In his remaining enumeration of error, Worthen asserts that he is entitled to a new trial based upon “[t]he absence of a complete transcript.” We disagree. The authorities cited by Worthen in support of this claim of error involve the lack of a complete transcript in pending appeals where the defendant had not been a fugitive. See, e.g., Sheard v. State, 300 Ga. 117, 119-120 (2) (793 SE2d 386) (2016). Based upon our decision to affirm the trial court‘s decision to dismiss the motion for new trial filed by Worthen‘s counsel, the lack of a complete trial transcript is moot and does not entitle him to a new trial. See Lewis v. Duckworth, 680 F2d 508, 509 (7th Cir. 1982).
Judgment affirmed. Dillard, C. J., and Ray, P. J., concur.
DECIDED AUGUST 3, 2017 —
RECONSIDERATION DENIED AUGUST 22, 2017
John W. Kraus, for appellant.
Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.
A17A1128. GUNN v. THE STATE.
(804 SE2d 118)
Following a trial by jury, Kenneth Bernard Gunn was convicted of trafficking cocaine, possessing cocaine with the intent to distribute, and possessing a firearm as a convicted felon.1 Gunn appeals from these convictions, arguing that the trial court erred by (1) admitting “other acts” evidence under
At the outset, before addressing his enumerations of error, we note that Gunn previously filed an appeal with this Court (Case No. A17A0244), which was dismissed for failure to timely file an appellate brief.2 The present appeal follows a consent-order granting Gunn‘s subsequent motion for out-of-time appeal in the trial court. In the present notice of appeal, Gunn indicates that the clerk should omit nothing from the appeal and that a transcript of evidence and proceeding will be filed for inclusion in the record on appeal. But the electronic record for the current appeal is limited to filings relevant to the case after the dismissal of the prior appeal, which contained a lengthy electronic record. And Gunn has not indicated an intention to rely upon the record and transcript from the previously filed appeal. Nevertheless, this Court—having noticed the existence of the electronic record in the related case
We take this opportunity to, once again, remind appellants that the burden is upon them to ensure that a complete record is transmitted to this Court for review in every appeal and to notify this Court of their intent to rely upon a previously transmitted record or transcript,4 including any audio- or video-recorded exhibits.5
Turning now to Gunn‘s contentions on appeal, and viewed in the light most favorable to the jury‘s verdict,6 the record reflects that on February 8, 2012, the Gwinnett County SWAT team and Narcotics Unit executed a “no knock” warrant at a mobile home where Gunn and a co-defendant were occupants.7 In the search that followed, officers located miscellaneous loose pills and sets of digital scales with white powdery residue in the kitchen area; chunks of crack cocaine on the floor of the dining area; drug paraphernalia in the living room area with cocaine residue on the coffee table; and chunks of cocaine, baggies associated with packaging narcotics, and a loaded handgun in one of three bedrooms. In total, officers seized 35.01 grams of cocaine with 53.4 percent purity from the residence, worth an estimated $3,500—an amount of drugs consistent with an intent to distribute. And in addition to the drugs and the distribution-related paraphernalia (i.e., digital scales, large amounts of sandwich baggies, smaller baggies) found throughout the home, in the kitchen area, Gunn‘s name was found on a piece of mail sent to the mobile home‘s address. Elsewhere, officers located receipts that also reflected Gunn‘s name.8
Following his arrest, and while still in the mobile home, Gunn gave a videotaped statement to law enforcement, and he was photographed. The photograph of Gunn depicts what appears to be a white powder substance in his nostrils, although law enforcement did not conduct testing to confirm the nature of the substance.
Gunn was subsequently indicted for and convicted of the offenses set forth supra. He filed a motion for new trial, which was denied. This appeal follows.9
The record reflects that prior to trial, the State gave Gunn notice of its intent to present evidence of a 2001 conviction for possession of cocaine with the intent to distribute. And in a pretrial hearing, the State proffered that an officer would testify to stopping Gunn‘s vehicle and, upon a search incident to arrest for providing a false name, finding in Gunn‘s groin area three grams of cocaine and a packet of small plastic baggies typically used to package cocaine. Gunn objected to the admission of this evidence on the basis that it was not similar to the facts at issue in the current case and due to the lapse of time from 2001 until the time of the charged offenses. But after taking the matter under advisement, the trial court ultimately ruled that it would admit the evidence because Rule 404 (b) “is a law of inclusion rather than exclusion”11 and because the court found that the evidence could be appropriately admitted to show motive, intent, and knowledge.12
At trial, the trial court maintained its earlier ruling after hearing a proffer from the officer, who clarified that during the traffic stop, he observed Gunn take something from “his backside” and then “stuff[ ] it into his crotch[,]” and, therefore, upon reaching the jail, he ordered and observed a strip search of Gunn that revealed a cellophane wrapper containing 3.5 grams of crack cocaine in his genital area. Previously, during Gunn‘s arrest, the officer located in Gunn‘s pocket approximately 30 small plastic baggies. And the State subsequently presented the same testimony by the officer to the jury before presenting a certified copy of Gunn‘s conviction for the 2001 incident following a guilty plea. Prior to this testimony, the trial court instructed the jury as follows:
[S]ometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose for which the evidence is limited and not for any other purpose.
In order to prove its case, the State must show intent, must show knowledge, and may show motive. To do so, the State is about to offer evidence of other crimes allegedly committed by the accused. You are permitted to consider that evidence only insofar as it may relate to those issues and not for any other purpose. You may not infer from such evidence that the defendant is of a character that would commit the crimes alleged in this case.
The court repeated this charge to the jury just prior to deliberations, and it expounded upon same.
Gunn asserts that the trial court erred in admitting this “other acts” evidence because the 2001 incident was factually dissimilar and
Rule 404 (b) provides:
Evidence of other crimes, wrongs, or acts shall not be 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, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .13
Nevertheless, even evidence that is offered for a proper purpose under Rule 404 (b) may be excluded under
The Supreme Court of Georgia has adopted a three-part test by which we evaluate the admissibility of so-called “other acts” evidence.15 Under that test, “(1) the evidence must be relevant to an issue other than defendant‘s character; (2) the probative value must
not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.”16 As to the first factor, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”17 And as to the second factor, even if Rule 404 (b) evidence is relevant, we must decide whether “the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403.”18 Of course, application of the Rule 403 balancing test is “a matter committed principally to the discretion of the trial courts, but as we have explained before, the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly.”19 Finally, on appeal, we review the admission of Rule 404 (b) evidence “for a clear abuse of discretion, a review requiring the appellate court to make a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.”20
Gunn did nothing to remove intent as an issue and, indeed, as discussed in Division 2 infra, he told law enforcement that he did not live in the house throughout which the drugs and drug-distribution paraphernalia were found.22 And because Gunn‘s participation in the earlier crime required the same intent as the charged crimes, the evidence of the earlier other act was relevant.23
As for the time span between the two incidents (2001 to 2012), Gunn provides no citation to authority to support his assertion that such a span in time is too remote for admissibility.24 Instead, given precedent from the Eleventh Circuit Court of Appeals (to which we may look when construing the provisions in our new Evidence Code),25 we hold that under the facts of this case, this temporal nexus
was not too remote to erode the
2. Next, Gunn argues that the trial court erred by denying a motion to suppress his statement to law enforcement when he used cocaine prior to the interview. Again, we disagree.
At the pretrial hearing held under Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964), the law enforcement agent who interviewed Gunn testified that he was taken into custody at the time the search was performed; that when the search was performed, Gunn had a white, powdery residue in his nose that appeared to be cocaine, although this was not noticed until after Gunn was interviewed; that Gunn “seemed like he knew what was going on” and his faculties appeared to be intact; that Gunn was advised of his Miranda rights;28 that Gunn was not coerced or threatened; that Gunn was not offered any hope of benefit or reward in order to speak; and that Gunn voluntarily spoke to her after being advised of his rights.29 In the brief interview, Gunn told the law enforcement officer that he “didn‘t stay at the house” and that she should “just take him in.” After hearing the officer‘s testimony and viewing a video recording of the interview, the trial court denied Gunn‘s motion to suppress, finding that Gunn‘s statement was freely and voluntarily given, that Gunn knowingly and intelligently waived his Miranda rights, and that there was no fear of injury or hope of benefit.
When a trial court rules upon the admissibility of a custodial statement, the court must determine whether, “based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily.”30 And unless clearly erroneous, a trial court‘s findings as to “factual deter-
minations and credibility relating to the admissibility of the defendant‘s statement at a Jackson v. Denno hearing will be upheld on appeal.”31 Here, based upon the foregoing evidence and testimony, we find the trial court was authorized to conclude that Gunn gave a voluntary statement and made a knowing and intelligent waiver of his Miranda rights.32
3. In his final two enumerations of error, Gunn argues that the trial court erred by (1) failing to grant a mistrial after learning that the State‘s witnesses violated the rule of sequestration, and (2) failing to grant a new trial when trial counsel was ineffective by stating that Gunn was on probation, thereby placing his character in issue. But we do not address these contentions because Gunn has abandoned them for appellate review.
In both enumerations of error, beyond one or two case citations to the most basic legal authority as to the purposes of the rule of sequestration and the standard applied to claims of ineffective assistance of counsel, Gunn provides no authority in support of his specific contentions as to how and why the trial court committed error in these instances. Instead, his “arguments” are reduced to single paragraphs in both enumerations, which largely focus on the factual allegations of what occurred at trial and omit any meaningful appellate argument beyond mere conclusory statements of error. But as we have previously emphasized, under the rules of this Court, “an appellant must support enumerations of error with argument and citation of authority,”33 and “mere conclusory statements are not the
type of meaningful argument contemplated by our rules.”34 Thus, Gunn has abandoned these final enumerations of error, and we will not address them.35
Accordingly, for these reasons, we affirm the trial court‘s denial of Gunn‘s motion for new trial.
Judgment affirmed. Ray, P. J., and Self, J., concur.
DECIDED AUGUST 2, 2017
RECONSIDERATION DENIED AUGUST 23, 2017
Teri L. Thompson, for appellant.
Daniel J. Porter, District Attorney, Samantha Routh, Bruce E. Roberts, Assistant District Attorneys, for appellee.