FOURTH DIVISION
BARNES, P. J.,
RAY, and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
June 26, 2015
In the Court of Appeals of Georgia
A15A0713. MCCOY v. THE STATE.
BARNES, Presiding Judge.
Following a jury trial, Everton McCoy was convicted of armed robbery, fleeing
or attempting to elude a police officer, and obstruction of an officer.1 McCoy filed a
motion for new trial, which the trial court denied, and he now appeals from that order.
On appeal, McCoy contends that the trial court erred in admitting a prior bad act that
was dissimilar to the charged crime and for which there was only a highly prejudicial
identification of McCoy as the perpetrator. Upon our review, and for the reasons that
follow, we affirm the trial court’s order denying McCoy’s motion for new trial.
On appeal from a criminal conviction, we view the evidence in the light most
favorable to the jury’s verdict, and the appellant is no longer entitled to the
presumption of innocence. Newsome v. State, 324 Ga. App. 665 (751 SE2d 474)
1
Mccoy was found not guilty of two counts of theft by receiving stolen
property, hit and run, and Violation of the Georgia Controlled Substances Act
(VGCSA).
(2013). We neither weigh the evidence nor assess the credibility of the witnesses, but
determine only whether the evidence authorized the jury to find the appellant guilty
of the crimes charged beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24 (752
SE2d 84) (2013).
So viewed, the evidence shows that on December 26, 2011, the victim was
changing a tire on his sister’s car when he was approached by a man who brandished
a gun at him and demanded money. The robber took the victim’s wallet, which
contained $500 in cash and a bank card, his cell phone, and his keys. After the robber
hurriedly walked away, the victim retrieved his cell phone and keys, which the robber
had discarded nearby, called 911, and got into his car to follow the Honda Civic in
which the robber was traveling and which was determined to be stolen. The victim
followed the car, and stayed on his cell phone with the 911 operator until two patrol
cars took up the pursuit of the robber’s vehicle. The ensuing high-speed chase lasted
approximately four minutes until the vehicle crashed, and the robber, still holding his
gun and later identified as McCoy, and his accomplice ran from the scene. The men
split up as they ran away. Police captured one of the men, who was identified as
McCoy’s cousin, Damario, but McCoy escaped. One of the pursuing officers later
identified McCoy from a photograph in the lead detective’s office. McCoy and
2
Damario were indicted as co-defendants for armed robbery, two counts of theft by
receiving stolen property, hit and run, violation of the Georgia Controlled Substances
Act, fleeing or attempting to elude a police officer, and obstruction of an officer.2
During the trial, Damario testified that he drove the stolen car to the apartment
complex to sell marijuana, and that when they arrived at the complex, McCoy got out
of the car. He further testified that when McCoy got back into the car he told Damario
that, “I had to get him,” and that after the ensuing “chaos” he assumed “those words
meant that [McCoy] robbed somebody.” Damario also testified that he saw the handle
of what he believed to be a gun in McCoy’s hand.
On appeal, McCoy contends that the trial court erred in admitting evidence of
a prior bad act under OCGA § 24-4-404 (b). He maintains that the trial court erred in
admitting evidence of a Florida robbery because it was too dissimilar to the case-in-
chief and based upon a highly prejudicial in-court identification of McCoy. We
disagree.
2
Damario McCoy pled guilty to robbery, two counts of theft by receiving
stolen property, fleeing or attempting to elude a police officer, obstruction, and
misdemeanor possession of marijuana.
3
Because McCoy’s trial was held after January 1, 2013, Georgia’s new Evidence
Code controls the admission of similar transaction evidence. OCGA § 24-4-404 (b)
of the new Code provides that:
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,
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
Furthermore, under OCGA § 24-4-403, “[r]elevant 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.” “We review a trial
court’s evidentiary rulings under an abuse of discretion standard of review. . . .
[H]owever, we accept a trial court’s factual findings unless they are clearly erroneous.
. . .” (Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d
112) (2012).
The State introduced evidence that on June 12, 2011, in Ocala, Florida, McCoy
jumped into a car, put a gun to the victim’s head, ordered the victim to drive before
stopping the car, robbing the victim of his wallet, and driving off in the victim’s car.
4
The victim identified McCoy in court as the robber. Three days later, on June 15,
2011, a Hillsborough County Florida sheriff’s deputy stopped McCoy, who was
driving a Chevy Tahoe that had been stolen in Marietta on June 10, 2011. McCoy fled
from the car, but was later apprehended. The officer who stopped McCoy identified
him in court. The Marietta victim testified that she was carjacked at a Marietta Target
parking lot and that her Tahoe was taken but later recovered in Florida. The State
stipulated that it had no evidence that McCoy had committed the Marietta carjacking
and that the victim had identified another man as the perpetrator. The trial court
admitted the evidence over McCoy’s objection to show intent and knowledge.
Our courts apply a three-part test to determine the admissibility of evidence of
other crimes and acts pursuant to OCGA § 24-4-404 (b):
(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; (3) the government must offer sufficient proof
so that the jury could find that defendant committed the act.
(Citation and footnote omitted.) Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d
892) (2015).
5
Regarding the first prong, the admission of the similar transaction evidence to
establish intent and knowledge, “a defendant who enters a not-guilty plea makes
intent a material issue which imposes a substantial burden on the government to
prove intent, which it may prove by … Rule 404 (b) evidence absent affirmative steps
by the defendant to remove intent as an issue.” (Punctuation and footnote omitted.)
Curry v. State, 330 Ga. App. 610, 614 (1) (768 SE2d 791) (2015). McCoy did not
employ any affirmative steps to remove intent as an issue, and thus the trial court did
not err in finding that the similar transaction was admissible to show intent.3
Although McCoy contends that the second prong of the similar transaction test
was not met in that the in-court identification by the similar transaction victim was
too prejudicial and thus could not be used to find that he committed the act, the
victim’s in-court identification of appellant was based upon the fact that he had
observed McCoy at close range during the carjacking and robbery. [A] witness’s in-
court identification is admissible if it has an independent origin.” Doublette v. State,
278 Ga. App. 746, 749 (1) (629 SE2d 602) (2006). See Jennings v. State, 277 Ga.
App. 159, 162-163 (3) (626 SE2d 155) (2006) (victim’s testimony about crime and
3
Because the similar transaction evidence was admissible for the permissible
purpose of showing intent, we need not address the trial court’s findings that it was
also admissible to show knowledge. Curry, 330 Ga. App. at 615 (1), n. 11.
6
in-court identification of defendant as perpetrator sufficient to establish that
defendant committed independent act).
We are also satisfied that the trial court did not abuse its discretion in
determining that the probative value of evidence of the Florida crime, was not
substantially outweighed by its prejudicial effect. This determination “calls for 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.” Bradshaw, 296 Ga. at 657-658 (3).
Here, “[t]he similarity between the . . . crimes and the facts relating thereto make the
former [act] highly probative of the [McCoy’s] intent.” U.S. v. Ramirez, 426 F.3d
1344, 1354 (11th Cir. 2005). The trial court instructed the jury that the similar
transaction evidence should be considered for the limited purpose of showing
McCoy’s knowledge and intent and for no other purpose, and “the risk of undue
prejudice to [McCoy] was reduced by the court’s limiting instruction.” Id. Given the
circumstances, we cannot say that the trial court abused its discretion in finding that
the probative value of the similar transaction evidence was not substantially
outweighed by its prejudicial effect.
7
Moreover, it is axiomatic that
harm, as well as error, must be shown for the improper admission of
similar transaction evidence to justify reversal of a conviction. If it is
highly unlikely that admission of the similar transaction evidence
contributed to the verdict, then admission of the evidence is harmless.
(Citation omitted.) Bright v. State, 314 Ga. App. 589, 594 (1) (b) (725 SE2d 327)
(2012). In light of the evidence establishing McCoy’s guilt, including the pursuing
officer’s identification, “we simply cannot conclude it highly probable that [the
similar transaction evidence ]. . . contributed to the guilty verdict on the . . . charges
at issue [in this case].” Mangum v. State, 308 Ga. App. 84, 88-89 (2) (706 SE2d 612)
(2011).
Judgment affirmed. Ray and McMillian, JJ., concur.
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