KING v. THE STATE
A16A1144
Court of Appeals of Georgia
OCTOBER 6, 2016
792 SE2d 414
MCMILLIAN, Judge.
been injured by other means such as forcefully biting her lip or slipping in a bathtub. Thus, the other acts evidence that Harris resorted to violence toward other women who did not accede to his demands was needed by the State to counter Harris’ defense and to support its case that Harris intentionally hit the victim in the face after she refused his sexual advances. This evidence added significantly to the other proof used to establish that Harris hit the victim. See Anthony, 298 Ga. at 833 (4) (other acts evidence needed to counter appellant‘s testimony at trial and theory of self-defense on which he relied). Although the evidence was prejudicial, “as almost all evidence presented by the State will be,” we agree with the trial court that on balance any such prejudice did not substantially outweigh the probative value of the evidence in this case. Smart, 299 Ga. at 419 (2) (b). See also United States v. King, 713 F2d 627, 631 (III) (11th Cir. 1983) (“[I]n a criminal trial relevant evidence is inherently prejudicial; it is only when unfair prejudice substantially outweighs probative value that [
Accordingly, the trial court did not abuse its discretion in admitting the other acts evidence, and Harris is not entitled to a new trial on this basis. See Jones, 297 Ga. at 159 (1) (Appellate courts will overturn a trial court‘s decision to admit evidence of other acts “only where there is a clear abuse of discretion.“).
Judgment affirmed. Miller, P. J., and McFadden, J., concur.
DECIDED OCTOBER 5, 2016.
Teresa L. Doepke, for appellant.
Layla H. Zon, District Attorney, Madalyn S. Davis, Assistant District Attorney, for appellee.
MCMILLIAN, Judge.
Jeffrey King appeals the denial of his motion for new trial after a jury convicted him of one count of driving under the influence (“DUI“) to the extent that it was less safe to drive.1 As his sole argument on appeal, King asserts that the trial court erred in admitting evidence of his statement to police that he had a prior DUI because its probative value was substantially outweighed by its unfair prejudice. We affirm for the reasons set forth below.
While on patrol at approximately 8:00 a.m. on November 29, 2014, an officer with the Henry County Police Department observed a Jeep Grand Cherokee pulled off the road with its flashers on and its hood up. When the officer stopped to offer help, he encountered
Because King stated that he had health issues with his back stemming from a recent automobile accident and that he was legally blind in one eye, the officer decided not to perform most of the standard field sobriety tests. However, he did ask King to recite the alphabet from G to M, which King was unable to do accurately. At that point, the officer determined based on his training and experience that King was under the influence of alcohol to the extent that he was not safe to operate a motor vehicle, and he placed King under arrest. The officer then read King the implied consent warning, during which King stated that he was familiar with the warning because he had a prior DUI. King consented to a breath test, but after the officer placed him in the back of the police car, he began to complain of back pain and indicated that he wanted an ambulance. The officer called for medical assistance, and King was transported to the hospital by ambulance. Accordingly, the breath test was not performed, but King later consented to a blood test, which showed a blood alcohol level of 0.307.
Before trial, King filed a generalized motion to suppress, which the trial court denied following a hearing. King did not specifically address his statement regarding his prior DUI in that motion. In the meantime, the State filed a notice of its intent to introduce evidence of a 2011 guilty plea King made to a 2010 DUI charge, but the prosecutor announced on the first day of trial that the State would not be going forward with that evidence. In response, King‘s attorney made an oral motion in limine to redact the video of the traffic stop to remove the portion in which King mentions his prior DUI, arguing that the statement would constitute improper character evidence since the State indicated that it did not intend to introduce evidence of the prior DUI. The trial court denied King‘s motion, finding that the statement was voluntary, not the product of custodial interrogation, and that it was relevant to the case because it showed that King understood the implied consent notice. At trial, the officer testified about the statement, and the jury was shown an unredacted video of King‘s arrest.
King again raised the issue in his amended notice for new trial, arguing that the trial court erred in denying the motion in limine because it failed to conduct a hearing under
In order for other acts evidence to be admissible under Rule 404 (b), the State must show (1) the evidence is relevant to an issue in the case other than the defendant‘s character, (2) sufficient proof to enable the jury to find that the defendant committed the act in question, and (3) “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 [
On appeal, King does not dispute the trial court‘s findings on the first two requirements under Rule 404 (b). Rather, he confines his argument to the trial court‘s ruling on the third requirement, asserting that the trial
Rule 403 provides: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Our consideration of the probative value of King‘s statement necessarily involves consideration of the relevance of the statement to the issues in the case. As the Supreme Court recently explained,
[r]elevance and probative value are related, but distinct, concepts. Relevance is a binary concept — evidence is relevant or it is not — but probative value is relative. Evidence is relevant if it has “any tendency” to prove or disprove a fact, whereas the probative value of evidence derives in large part from the extent to which the evidence tends to make the existence of a fact more or less probable.
(Emphasis in original.) Olds, 299 Ga. at 75 (2). See also
Moreover, in determining whether relevant evidence is more probative than prejudicial, our Supreme Court has explained that “[g]enerally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value.” Olds, 299 Ga. at 75 (2). And “the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered“; “how much it adds to the other proof available to establish the fact for which it is offered“; and “the need for the evidence.” Id. at 75-76 (2).
As found by the trial court, the prior DUI was relevant to King‘s intent to drive while intoxicated, his defense at trial that the State had failed to prove that he had driven while intoxicated (as opposed to becoming intoxicated after stopping the vehicle by the side of the road), and “peculiarities about the investigation,” including why King suddenly developed back pain moments after consenting to a breath test. We agree. As explained in Jones, a material issue in the State‘s prosecution was intent and “because the same state of mind was required for committing the prior act and the charged crimes, i.e., the general intent to drive while under the influence of alcohol,” evidence of King‘s prior DUI was relevant to show King‘s intent on this occasion. 297 Ga. at 160-61 (2).
Likewise, the relevance of the prior DUI was heightened because King‘s defense was that he did not drive the vehicle while intoxicated, “making evidence that he had voluntarily driven under the influence of alcohol on a previous occasion all the more relevant because it tended to show that it was more likely that he intentionally did so on this occasion.” Jones, 297 Ga. at 161 (2).
Turning to the probative value of the prior DUI, this case presents facts somewhat unusual for a DUI in that no witness observed
Accordingly, because we cannot say the trial court abused its discretion in admitting evidence of King‘s statement, we affirm. See Jones, 297 Ga. at 159 (1) (Appellate courts will overturn a trial court‘s decision to admit evidence of other acts “only where there is a clear abuse of discretion.“).
Judgment affirmed. Miller, P. J., and McFadden, J., concur.
DECIDED OCTOBER 6, 2016.
Jordan K. Van Matre, for appellant.
John A. Pipkin III, Solicitor-General, MaryGrace K. Bell, Assistant Solicitor-General, for appellee.
THE STATE v. GARLEPP
A16A1230
Court of Appeals of Georgia
OCTOBER 6, 2016
790 SE2d 839
DILLARD, Judge.
Following a traffic stop, Ryan Garlepp received citations for failing to wear a seat belt and driving with more than 0.02 percent blood-alcohol content while under the age of 21 (“DUI per se (under 21)“). After he paid a fine to dispose of the failure-to-wear-a-seat-belt citation, the State charged him, via accusation, with, inter alia, DUI per se (under 21). Garlepp then filed a plea in bar on the ground of procedural double jeopardy, which the trial court granted. On appeal, the State challenges the grant of Garlepp‘s plea in bar, arguing that the trial court erred in identifying the solicitor-general‘s office generally as the proper prosecuting officer and in finding that both offenses in question were known to the proper prosecuting officer. For the reasons set forth infra, we agree that the trial court erred and, thus, reverse.
At the outset, we note that on appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court‘s oral and written rulings as “a whole to determine whether the trial court‘s findings support its conclusion.”1 But when the evidence is uncontroverted and witness credibility is not an issue, “our review of the trial court‘s application of the law to the undisputed facts is de novo.”2
So viewed, the record shows that at approximately 7:30 a.m. on May 23, 2015, a Cherokee County sheriff‘s deputy observed a white pickup truck swerve wildly to its right to avoid hitting a vehicle in front of it, that had stopped to make a left turn into the parking lot of a fast-food restaurant. Believing that the pickup truck had been following the other vehicle too closely, the deputy initiated a traffic stop and immediately noticed that the driver, ultimately identified as Garlepp, was not wearing his seat belt. Upon approaching the vehicle and speaking to Garlepp, the deputy smelled an alcoholic beverage odor and asked Garlepp, who was 20 years old at the time, if he had been drinking. Garlepp admitted that he had been drinking, but claimed that he drank his last beer around 12:30 a.m. while camping.