Olds v. State

In the Supreme Court of Georgia

Decided: May 23, 2016

S15G1610. OLDS v. THE STATE.

BLACKWELL, Justice.

Vashon Olds was tried by a Dougherty County jury and convicted of the

false imprisonment1 and battery2 of a woman with whom he previously had a

romantic relationship. At trial, the jury heard evidence of these crimes, as well

as evidence of two incidents in which Olds had assaulted other women. The

prosecution offered the evidence of these other incidents to show criminal

intent, among other things, and the trial court admitted it under OCGA § 24-4-

404 (b) (“Rule 404 (b)”), which provides in pertinent part:

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,

1
See OCGA § 16-5-41 (a) (“A person commits the offense of false imprisonment
when, in violation of the personal liberty of another, he arrests, confines, or detains such
person without legal authority.”).
2
See OCGA § 16-5-23.1 (a) (“A person commits the offense of battery when he or
she intentionally causes substantial physical harm or visible bodily harm to another.”).
 opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.

Contending that the trial court abused its discretion when it admitted the

evidence of the other incidents, Olds appealed. The Court of Appeals, however,

rejected that contention and affirmed. See Olds v. State, 332 Ga. App. 612 (774

SE2d 186) (2015). In doing so, the Court of Appeals relied extensively on

Bradshaw v. State, 296 Ga. 650 (769 SE2d 892) (2015), a case in which this

Court considered the admissibility of evidence offered under Rule 404 (b) to

prove intent. We issued a writ of certiorari in this case to review the decision of

the Court of Appeals, and we now conclude that a clarification of Bradshaw is

in order. Accordingly, we vacate the decision of the Court of Appeals, and we

remand for the Court of Appeals to reconsider in light of that clarification.

1. In its opinion below, the Court of Appeals set forth the facts of this case

as follows:

Viewed in the light most favorable to Olds’s convictions, the
evidence shows that Olds was a close family friend of the victim,
and they were briefly involved in a romantic relationship. In
February 2009, the victim moved to Albany to attend college, and
she contacted Olds about possibly living in his trailer. The victim
and Olds agreed that the victim and her son would move in with
Olds, and the victim would pay for half of the utilities. The victim
and her son each had their own room[,] and they had their own

2
bathroom that they shared. The victim told Olds that they would not
be resuming their prior romantic relationship, and Olds confirmed
that he understood.

Shortly after the victim moved in, she and her [new]
boyfriend were sitting in a car outside of her grandmother’s house
when Olds pulled up behind their vehicle, got out of his car, and
told the victim’s boyfriend that she was “his lady.” Olds
subsequently apologized for his behavior, and the victim returned
to the trailer.

The next day, the victim told Olds that she was going out of
town. She got into her car, intending to leave, but then realized that
she had forgotten her son’s jacket in the trailer. The victim went
inside the trailer and, as she walked into her bedroom, Olds
followed her. When the victim asked Olds what he was doing, he
responded that he was getting ready to take out the trash. The victim
then walked down the hallway, and Olds jumped her from behind,
while holding a white tie in his hand. The victim put her arms up to
keep the tie away from her neck and avoid being choked.

The victim begged Olds to let her go, but he told her[,]
“you’re not going anywhere,” and he pushed her onto a chair in his
bedroom. Olds then tied up the victim, picked her up and threw her
on the bed. When the victim again begged him to stop, Olds got on
top of her and told her that[,] if she cooperated and shut up, “it’ll be
over with.” Olds began to unbutton and unzip the victim’s pants.
The victim screamed and Olds put his hands over the victim’s nose
and mouth so that she could not breathe.

Olds then duct taped the victim’s mouth. When she removed
the tape, he told her that[,] if she screamed, he was going to kill her.
Olds also told the victim that he was going to kill himself because
he was “not going back to prison.” When the victim continued to
plead with Olds, he turned her over and sat her up on the edge of the

3
 bed. The victim continued to talk to Olds to calm him down,
because she was afraid that he would kill her.

After about 30 minutes, Olds untied one of the victim’s ties,
and picked up a long blade from a tray beside his bed. The victim
was afraid Olds was going to cut her so she told him to stop and
asked him for some water. At that point, the victim received a
phone call from her grandmother; Olds had a brief conversation
with the victim’s grandmother; and after the phone call, the victim
begged Olds to let her go. Olds picked up the blade and began to cut
the ties off the victim’s arms and stomach.

Once free, the victim continued to talk to Olds, telling him
that she forgave him, and they could “work it out.” Eventually, the
victim asked Olds to walk her to the car, which he did, after she told
him that she would return. The victim drove down the street,
flagged down a police officer about a minute later[,] and told the
officer what had happened.

332 Ga. App. at 612-613.

The Court of Appeals also detailed the evidence concerning the other

women that was admitted under Rule 404 (b). The first incident involved an

assault upon a woman who had been — like the victim in this case — involved

romantically with Olds:

T. H. testified that, in June 1999, Olds called her, told her she had
forgotten something at his house[,] and said he would come over to
return the item. When Olds arrived, T. H. was in the kitchen
cooking. Olds came up behind T. H. with a knife, told T. H. that he
was not leaving, said if he could not have her, then nobody else
would, and then cut T. H.’s chin. T. H. yelled for her kids to run out

4
 of the house and struggled with Olds before running to a neighbor’s
house.

332 Ga. App. at 613-614. The second incident involved a sexual assault upon

a woman with whom Olds was acquainted more casually:

[K. B.] testified that, in August 2012, Olds drove her to Walmart to
buy a part for her mother’s car, which he was repairing. After
buying the part, Olds and K. B. headed back to her house when
Olds suddenly took a detour, saying that he needed to go home to
grab a missing part. When they arrived at Olds’s home, he told K.
B. that she could not stay in his car, so she followed him up to his
room. After looking around, Olds told K. B. that he could not find
the missing part, so K. B. turned toward the door to leave. Olds
grabbed K. B. from behind and threw her onto the bed. Olds then
forcibly held K. B. down, pulled down her shorts and underwear[,]
and placed his tongue on her vagina.

K. B. told Olds to stop and tried to push him away, but he
refused to stop, and he then tried to insert his penis into her vagina.
When K. B. grabbed Olds’s penis and scratched his leg and back,
Olds got off of her. After Olds drove K. B. home, she told her
mother what had happened, and her mother immediately called the
police.

Id. at 614.

The trial court admitted the evidence concerning the other women for

several purposes, including to prove criminal intent.3 On appeal, Olds asserted

3
The trial court also admitted this evidence to show identity, motive, and opportunity
and to disprove mistake or accident. The Court of Appeals concluded that the evidence was
admissible to show intent and, therefore, did not consider whether the evidence was properly

5
that the evidence was not properly admitted for any of these purposes. As for

intent, Olds argued that his intent was never really at issue, noting that his

defense at trial principally was that the incident described by the victim in this

case never happened. See 332 Ga. App. at 615. Relying extensively on our

decision in Bradshaw, the Court of Appeals held that Olds put intent at issue

simply by pleading not guilty, see id., and the evidence of the other incidents

was relevant because the other incidents involved the same sort of criminal

intent as the crimes with which Olds was charged in this case, namely, an “intent

to harm women he knew by attacking them from behind.” Id. at 616. The Court

of Appeals found that “the probative value of evidence of the extrinsic acts was

not substantially outweighed by its prejudicial effect,” and it found as well that

the evidence adequately tied Olds to those prior incidents.4 Id. The Court of

Appeals concluded, therefore, that the evidence was properly admitted to show

criminal intent. Id.

admitted for any of these other purposes.
4
T. H. and K. B. testified at trial, and each woman identified Olds as the man who had
assaulted her.

6
 2. Five years ago, our General Assembly enacted a new Evidence Code,5

of which Rule 404 (b) is a part. Many provisions of the new Evidence Code

were borrowed from the Federal Rules of Evidence, and when we consider the

meaning of these provisions, we look to decisions of the federal appellate courts

construing and applying the Federal Rules, especially the decisions of the

United States Supreme Court and the Eleventh Circuit. See State v. Frost, 297

Ga. 296, 299 (773 SE2d 700) (2015). Rule 404 (b) is one such provision, see

State v. Jones, 297 Ga. 156, 158 (1) (773 SE2d 170) (2015), and so, when we

have considered the meaning of Rule 404 (b), we consistently have looked for

guidance in the decisions of the federal appellate courts construing and applying

Federal Rule of Evidence 404 (b). See, e.g., Brooks v. State, ___ Ga. ___, ___

(2) (Case No. S15A1480, decided Mar. 7, 2016); Brannon v. State, 298 Ga. 601,

606-608 (4) (783 SE2d 642) (2016); Jones, 297 Ga. at 158-160 (1), (2), 163-164

(3); Bradshaw, 296 Ga. at 656-658 (3).

Borrowing from the decisional law of the federal appellate courts, we have

identified three general requirements for the admission of evidence of other acts

5
The new Evidence Code applies in cases tried on or after January 1, 2013. See
Humphrey v. Williams, 295 Ga. 536, 539 (1) (b), n. 2 (761 SE2d 297) (2014). Olds was tried
in June 2013, and so, the new Evidence Code applies in this case.

7
under Rule 404 (b). First, such evidence must be relevant to some issue other

than character. See Jones, 297 Ga. at 158-159 (1). This requirement is drawn,

of course, directly from the text of Rule 404 (b) itself, which provides that

evidence of other acts “[is not] admissible to prove the character of a person in

order to show action in conformity therewith,” but it may be admissible “for

other purposes.” OCGA § 24-4-404 (b). Rule 404 (b) identifies a number of

“other purposes” for which evidence of other acts permissibly may be admitted,6

and to determine whether such evidence actually is “relevant” for a particular

purpose, we look to OCGA § 24-4-401 (“Rule 401”), which “deems evidence

relevant if it has ‘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.’” Jones, 297 Ga. at 159 (2). Second, for

evidence of other acts to be admitted under Rule 404 (b), the evidence must pass

6
The enumeration in Rule 404 (b) of permissible purposes for which evidence of
other acts may be admitted is not exhaustive. See Jones, 297 Ga. at 159-160 (2). Notably,
however, Rule 404 (b) does not identify “bent of mind” or “course of conduct” as permissible
purposes for evidence of other acts, and their absence is especially conspicuous, inasmuch
as evidence of other acts routinely was admitted under our old Evidence Code for those
purposes. See Reeves v. State, 294 Ga. 673, 675 (2), n. 3 (755 SE2d 695) (2014). As such,
we have held that Rule 404 (b) does not authorize the admission of evidence of other acts to
show “bent of mind” or “course of conduct.” See Brooks, ___ Ga. at ___ (2).

8
the test of OCGA § 24-4-403 (“Rule 403”), which provides that “[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.” See Jones, 297 Ga. at 163-164 (3). The application of the

Rule 403 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.”7 Id. at

164 (3) (citation and punctuation omitted). Finally, evidence of other acts is

admissible under Rule 404 (b) only to the extent that the evidence is sufficient

to permit a jury to conclude by a preponderance of the proof that the person with

whom the evidence is concerned actually committed the other acts in question.

See id. at 158-159 (1).8 We identified these requirements as early as Bradshaw,

7
“The major function of Rule 403 is to exclude matter of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial effect.” Hood v. State,
___ Ga. ___, ___ (4) (Case No. S16A0064, decided May 23, 2016) (citation and punctuation
omitted).
8
We note that Olds has not argued in this Court that the evidence of the other acts was
insufficient to show that he actually committed those acts. In any event, the other acts
evidence in this case clearly satisfies the third requirement to admit evidence under Rule 404
(b). See note 4, supra.

9
the first case in which this Court had occasion to address Rule 404 (b). See

Bradshaw, 296 Ga. at 656 (3). Although Bradshaw correctly identified the

general requirements for the admission of evidence of other acts, we now

acknowledge that our application of those requirements in Bradshaw may have

caused some confusion.

The defendant in Bradshaw was convicted of murder and several other

crimes, all in connection with the killings of two individuals who had cheated

the defendant in a drug transaction. See 296 Ga. at 651-652 (1). At trial, the jury

heard evidence of an incident in Ohio in which the defendant had killed a man

who had failed to pay for drugs, only a few months before the killings in

Georgia. See id. at 652 (1). The trial court admitted the evidence of the other

killing under Rule 404 (b) to prove identity, intent, and motive. See id. The

defendant claimed on appeal that the admission of this evidence was an abuse

of discretion, but we rejected that claim of error and affirmed. See id. at 655-658

(3). In doing so, we held that the evidence properly was admitted to show intent

and motive.9 See id. at 656-657 (3).

9
Because we determined in Bradshaw that the evidence of the Ohio killing was
properly admitted to show intent and motive, we did not consider whether it also was
admissible to prove identity. See 296 Ga. at 657 (3), n. 5. Since Bradshaw, we have

10
 Addressing whether the evidence of the Ohio killing was relevant to show

intent, our opinion in Bradshaw quoted the following passage from United

States v. Edouard, 485 F3d 1324, 1345 (11th Cir. 2007):

[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 qualifying Rule 404 (b)
evidence absent affirmative steps by the defendant to remove intent
as an issue. Where the extrinsic offense is offered to prove intent,
its relevance is determined by comparing the defendant’s state of
mind in perpetrating both the extrinsic and charged offenses. Thus,
where the state of mind required for the charged and extrinsic
offenses is the same, the first prong of the Rule 404 (b) test
[requiring relevance to some issue other than character] is satisfied.

296 Ga. at 656-657 (3) (punctuation omitted). We then concluded that,

“[b]ecause the murder of the victim in this case and the Ohio case involve the

same mental state and [the defendant] did not take steps to remove intent as an

issue, evidence of the Ohio murder was relevant to establish his intent.” Id. at

657 (3). After concluding that the Ohio killing also was relevant to show

motive, we turned to the second requirement for the admission of other acts

evidence, admissibility under Rule 403. As to the second requirement, we noted

addressed the admissibility of evidence of other acts to prove identity in Brannon, 298 Ga.
at 607 (4), and Brooks, ___ Ga. at ___ (2).

11
that the Ohio killing and the crimes in Georgia with which the defendant was

charged were factually similar and close in time, and we said that the evidence

of the Ohio killing was “needed by the State to help establish that [the

defendant] and not [another man who had accompanied the defendant at the time

of the Georgia killings] was the shooter.” Id. at 657 (3). In light of these

circumstances, we held that the probative value of the evidence of the Ohio

killing was not substantially outweighed by the danger of unfair prejudice. See

id. (3). Finally, we held that the evidence of the Ohio killing was sufficient to

permit the jury to find that the defendant committed that crime. See id. at 658

(3).

With the benefit of hindsight, we now see that our discussion of intent in

Bradshaw may have confused the lower courts, especially with respect to the

second requirement for other acts evidence. To begin, we were right to say that

intent was put in issue by the defendant entering a plea of not guilty. That such

a plea puts the State to its burden of proving each and every element of the

crimes charged is beyond dispute. See Jones v. State, 272 Ga. 900, 902 (2) (537

SE2d 80) (2000). A culpable state of mind — intent or criminal negligence —

is an essential element of every crime, see Henderson v. Hames, 287 Ga. 534,

12
538 (3) (697 SE2d 798) (2010), and in Bradshaw, the defendant was charged

with crimes of intent. Moreover, we were right to say in Bradshaw that evidence

that an accused committed an intentional act generally is relevant to show — the

evidence, in other words, has some tendency to make more or less probable —

that the same defendant committed a similar act with the same sort of intent,

especially when the acts were committed close in time and in similar

circumstances. See generally 2 Weinstein’s Federal Evidence § 404.22 (1) (a)

(“The requisite intent may be inferred from the fact that, after being involved in

a number of similar incidents, the defendant must have had a mental state that

is inconsistent with innocence.”); Mueller & Kirkpatrick, Evidence § 4.22

(1995) (“Prior conduct by the defendant often sheds light on his state of mind

at the time of the event in question.”). See also Jones, 297 Ga. at 161 (2), n. 6;

United States v. Wyatt, 762 F2d 908, 910 (I) (A) (1) (11th Cir. 1985). For these

reasons, we were correct in Bradshaw to conclude that evidence of the Ohio

killing — which involved the same sort of intent as required to prove the crimes

with which the defendant was charged in Georgia — was “relevant” and

satisfied the first requirement for the admission of such evidence under Rule 404

(b).

13
 By our reliance on Edouard, however, we inadvertently may have

intimated too much about the probative value of such evidence when offered to

prove intent. We cited Edouard for the propositions, among others, that a plea

of not guilty “imposes a substantial burden on the government to prove intent”

and that the prosecution ordinarily “may prove [intent] by qualifying Rule 404

(b) evidence absent affirmative steps by the defendant to remove intent as an

issue.” Bradshaw, 296 Ga. at 656-657 (3) (quoting Edouard) (emphasis

supplied). Read in isolation, the statements from Edouard that we quoted in

Bradshaw reasonably could be understood to suggest that the burden of proving

intent always and inevitably is an especially difficult burden for the prosecution

and that evidence of other acts that tend in any way to prove intent ordinarily

will be admissible for that purpose. But unlike Bradshaw — and unlike this case

— Edouard was a conspiracy case.10 The cases cited in Edouard for these

propositions also were conspiracy cases. See Edouard, 485 F3d at 1345 (citing

cases).11 And as the decisional law of the Eleventh Circuit has recognized,

10
The defendant in Edouard was charged with conspiracy to import cocaine,
conspiracy to commit money laundering, and money laundering. See 485 F3d at 1331.
11
Edouard relied on United States v. Dickerson, 248 F3d 1036 (11th Cir. 2001)
(conspiracy to possess cocaine with intent to distribute), United States v. Zapata, 139 F3d

14
conspiracy cases frequently present especially difficult problems of proof for the

prosecution with respect to intent.

In the first place, intent often is the principal disputed issue in a

conspiracy case. Moreover, as the former Fifth Circuit12 explained:

Charges of conspiracy involve considerations not present in other
criminal prosecutions. The offense of conspiracy requires an
element of intent or knowledge which is often difficult to prove.
Because the prosecution must prove that the defendant knowingly
joined a plan to commit a crime, evidence that establishes a
defendant’s participation in a criminal act, or evidence establishing
his association with co-conspirators, may be insufficient to support
the inference that the defendant voluntarily joined a conspiracy to
commit a crime. Intent is particularly difficult to prove when a
defendant is a passive or minor actor in a criminal drama. If the
evidence linking a defendant is subject to an innocent interpretation,
the government may be forced to present some independent
evidence of intent to withstand a motion for directed verdict.
Moreover, if the government does not present intent evidence in its
case in chief the defendant may simply rest and argue lack of intent
to the jury without giving the government the opportunity to present
such evidence in rebuttal.

1355 (11th Cir. 1998) (conspiracy to distribute marijuana and possess marijuana with intent
to distribute), and United States v. Dorsey, 819 F2d 1055 (11th Cir. 1987) (conspiracy to
import marijuana and possess marijuana with intent to distribute).
12
After the Eleventh Circuit was carved out of the old Fifth Circuit, the Eleventh
Circuit adopted all decisions of the former Fifth Circuit rendered prior to October 1, 1981
as binding precedents. See Bonner v. City of Prichard, 661 F2d 1206, 1207 (11th Cir. 1981)
(en banc). The decisions of the former Fifth Circuit are, therefore, part of the decisional law
of the Eleventh Circuit.

15
 Unequivocal evidence that a defendant committed a
substantive offense may justify the inference that he intended to do
so, but it does not plainly support the conclusion that he agreed and
planned with others to commit the crime. Evidence of a defendant’s
association and dealings with a group of conspirators, even when he
knows they intend to commit a crime, does not alone show that he
himself had the requisite intent to join the conspiracy. In every
conspiracy case, therefore, a not guilty plea renders the defendant’s
intent a material issue and imposes a difficult burden on the
government. Evidence of such extrinsic offenses as may be
probative of a defendant’s state of mind is admissible unless he
affirmatively takes the issue of intent out of the case.

United States v. Roberts, 619 F2d 379, 382-383 (II) (5th Cir. 1980) (citations and

punctuation omitted). See also United States v. Matthews, 431 F3d 1296, 1311

(V) (11th Cir. 2005) (discussing Roberts). In light of these special concerns

about conspiracy cases, the decisional law of the Eleventh Circuit seems to have

developed to a point that almost always permits other acts evidence in

conspiracy cases when relevant to prove intent, except in those cases in which

the accused has taken affirmative steps to eliminate intent as an issue.13 See

13
This body of decisional law has been criticized by members of the Eleventh Circuit.
See, e.g., Matthews, 431 F3d at 1315-1319 (I) (Tjoflat, J., concurring) (asserting that
Eleventh Circuit precedents embrace “a categorical-relevancy doctrine that presumes that
virtually all prior drug offenses are relevant and almost automatically admissible in all drug
conspiracy cases”). And other federal appeals courts have squarely rejected a categorical
approach to Federal Rule of Evidence 404 (b) in cases in which other acts evidence is offered
to prove intent. See, e.g., United States v. Miller, 673 F3d 688, 697 (III) (7th Cir. 2012)

16
Matthews, 431 F3d at 1315 (Tjoflat, J., concurring). See also United States v.

Butler, 102 F3d 1191, 1196 (II) (A) (11th Cir. 1997); United States v. Pollock,

926 F2d 1044, 1049 (11th Cir. 1991). The portion of Edouard upon which we

relied in Bradshaw is a part of this body of decisional law, and it reflects these

special concerns about the burden to prove intent in conspiracy cases. The

notion that the prosecution inevitably has an especially difficult burden to prove

intent, and the suggestion that any relevant evidence of other acts ordinarily

should be admitted for the purpose of proving intent (unless intent is

affirmatively taken out of the case), do not necessarily hold in other contexts.

Our failure to appreciate that Edouard is in significant part about the

unique problems of proof in conspiracy cases, however, does not mean that our

conclusion in Bradshaw about the relevance of evidence of other acts offered to

prove intent was incorrect. Again, as we noted earlier, evidence has “relevance”

if it has “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.” OCGA § 24-4-401 (emphasis supplied). See also

Jones, 297 Ga. at 159 (2), n. 2 (“Regardless of how one views the language of

(“Rule 404 (b) requires a case-by-case determination, not a categorical one.”).

17
Rule 401, however, it is clear that the relevance standard codified therein is a

liberal one.” (Citation omitted)). And because a plea of not guilty puts the

prosecution to its burden of proving every element of the crime — including

intent — evidence of other acts that tends to make the requisite intent more or

less probable to any extent is relevant. That is true in conspiracy and non-

conspiracy cases alike. See Imwinkelried, Uncharged Misconduct Evidence §

5.10, p. 37 (2009 and Supp. 2012-2013) (“The better view is that uncharged

misconduct can be relevant and admissible to prove intent in both general and

specific intent cases.”). And it is true whether or not intent is actively disputed

at trial. See Old Chief v. United States, 519 U. S. 172, 179 (II) (A) (117 SCt

644, 136 LE2d 574) (1997) (citing Federal Rule of Evidence 401, Advisory

Committee Notes). By relying on Edouard in Bradshaw, however, we may have

implied that such evidence inevitably has more probative value than it may, in

fact, have in a particular case. And an accurate assessment of probative value is

an essential part of a proper application of Rule 403, which embodies the second

requirement for the admission of evidence of other acts under Rule 404 (b).

18
 Relevance 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. Generally speaking, the greater the tendency to make the

existence of a fact more or less probable, the greater the probative value. 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. See Milich, Georgia

Rules of Evidence § 6.1 (2015) (“Probative value refers to the strength of the

connection between the evidence and what it is offered to prove.”).14 Probative

value also depends on the marginal worth of the evidence — how much it adds,

14
See also Carlson & Imwinkelried et al., Evidence: Teaching Materials for an Age
of Science and Statutes, p. 274 (7th ed. 2012) (in determining probative value, court may
consider “patent flaws such as facial vagueness or uncertainty in the proposed testimony,”
“the number of intermediate propositions between the item of evidence and the ultimate
consequential fact that the item is offered to prove,” and “the logical strength of the inference
from the item to the consequential fact that it is offered to prove”); Mueller & Kirkpatrick,
supra, § 4.21 (“The strength of the evidence in establishing the point it is offered to prove is
properly considered by courts in undertaking [Rule] 403 balancing.”); Graham, 22B Fed.
Practice & Proc. Evid. § 5250 (2016) (“Another factor that bears on the probative worth of
other crimes evidence is the strength or weakness of the proof of that crime.”).

19
in other words, to the other proof available to establish the fact for which it is

offered. The stronger the other proof, the less the marginal value of the evidence

in question. See 2 Weinstein’s Fed. Evid. § 404.21 [3] [a] (“[T]he availability

of other, less prejudicial, evidence on the same point ordinarily reduces the

probative value of a given item of extrinsic evidence.”).15 And probative value

depends as well upon the need for the evidence. When the fact for which the

evidence is offered is undisputed or not reasonably susceptible of dispute, the

less the probative value of the evidence. See Mueller & Kirkpatrick, supra, §

4.21 (“The more strongly an issue is contested, the greater the justification for

admitting other act evidence bearing on the point.”).16 Generally speaking, in

conspiracy cases, quality evidence of other acts that tends to prove criminal

intent ordinarily will have substantial probative value, both because intent often

is disputed in such cases, and because the prosecution frequently will find itself

15
See also Milich, supra, § 6.4 (“If the evidence offered is cumulative of other
evidence already admitted, its probative value is limited to the additional strength it gives the
point already made.”); Mueller & Kirkpatrick, Evidence § 4.21 (1995) (“If the evidence
. . . is cumulative of evidence already introduced, exclusion is more likely.”).
16
See also Milich, supra, § 6.4 (“The probative value of evidence is a combination
of its logical force to prove a point and the need at trial for evidence on that point.”). We note
as well that a party may reduce the need for evidence on a particular point by express
stipulation. See Hood v. State, ___ Ga. ___, ___ (4) (Case No. S16A0064, decided May 23,
2016). See also Old Chief, 519 U. S. at 188-189 (II) (B) (3).

20
without other strong proof of intent. That may or may not be true in non-

conspiracy cases, in which the second requirement of Rule 404 (b) — that other

acts evidence passes the Rule 403 test — calls for a careful, case-by-case

analysis, not a categorical approach.17

3. As we noted earlier, the Court of Appeals in this case relied extensively

on our decision in Bradshaw to determine that the evidence concerning the other

women assaulted by Olds was properly admitted under Rule 404 (b) to prove

intent. The Court of Appeals appears to have concluded that the second

requirement for the admission of evidence of other acts was satisfied because the

17
Our clarification of Bradshaw should not be understood to imply that the result in
Bradshaw was wrong. In the first place, the identity of the killer appears to have been
disputed in Bradshaw. See 296 Ga. at 657 (acknowledging prosecution’s need to show that
the defendant — and not a man who accompanied him to the scene of the killing — was the
shooter). That, in turn, may have raised a disputed issue about intent. After all, if the
principal in the killing was not the defendant, but rather, was the man who accompanied the
defendant to the scene, a question then would have arisen about whether the defendant was
a party to the crime as an accomplice, which would have depended substantially upon his
intent. Moreover, the other acts evidence in Bradshaw was admitted to show motive as well
as intent.
We note as well that, in Jones, 297 Ga. at 161 (2), n. 4, we relied on Bradshaw and
the Eleventh Circuit conspiracy cases to hold that the defendant had put intent in issue simply
by pleading not guilty. But later in Jones, we noted that the defendant had asserted a defense
that raised “[a] genuine issue regarding whether Jones was voluntarily driving while under
the influence of alcohol,” id. at 161 (2), and we also acknowledged that the Rule 403 test has
“no mechanical solution” and instead requires a careful, case-by-case consideration of
probative value, unfair prejudice, the risks of confusion or misleading the jury, delay, waste
of time, and the cumulative nature of the evidence. Id. at 163 (3).

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prosecution had a “substantial burden” to prove intent and the evidence of Olds’

other crimes, therefore, had substantial probative value with respect to intent

principally because those crimes were very similar to the crimes with which

Olds was charged. 332 Ga. App. at 616. Given the way in which we relied on

Edouard in Bradshaw — suggesting that proof of intent is a “substantial burden”

for the prosecution in every case in which the defendant pleads not guilty, and

implying that evidence of other acts ordinarily ought to be admitted for the

purpose of intent — that the Court of Appeals reached this conclusion is quite

understandable. As we have explained today, however, the propositions for

which we cited Edouard do not always hold in non-conspiracy cases, and the

contention that the trial court in this case abused its discretion when it admitted

evidence concerning the other women requires further consideration. We do not

mean to suggest that admitting that evidence for intent — or for any of the other

purposes that the Court of Appeals did not reach in its earlier consideration of

the case — was, in fact, an abuse of discretion. We do not decide that question.

Instead, we leave it for the Court of Appeals.18 The judgment of the Court of

18
As for intent, we note, for instance, that Olds was charged in this case not only with
the false imprisonment and battery of which he was convicted, but also kidnapping and
aggravated assault with intent to rape, crimes of which he was acquitted. One of the incidents

22
Appeals is vacated, and this case is remanded for reconsideration in light of this

opinion.

Judgment vacated and case remanded with direction. All the Justices
concur.

concerning the other women involved not only an assault, but a sexual assault. And the
prosecution offered evidence of that incident not only to show an intent to do violence to
women with whom Olds was acquainted, but also to show a specific intent to commit a
sexual assault. Evidence of that incident, therefore, may have had added probative value with
respect to the specific intent element of the aggravated assault charge. And although Olds
may principally have defended at trial on the ground that the events described by the victim
never happened, the record indicates that he asked for — and received — a jury charge on
sexual battery as a lesser included offense of aggravated assault. Despite the nomenclature,
sexual battery “does not require any sexual contact at all. Rather . . . it involves non-
consensual, intentional physical contact with a victim’s intimate body parts.” Watson v.
State, 297 Ga. 718, 720 (2) (777 SE2d 677) (2015). By requesting that jury charge, Olds did
effectively dispute the specific intent element of the aggravated assault.
To what extent that circumstance impacts the probative value to be assigned to the
evidence of the extrinsic incident involving a sexual assault — and whether, even if evidence
of that incident properly were admitted, the admission of evidence concerning the other
woman was reversible error — are questions that have not been fully briefed in this Court.
Nor have the parties fully briefed in this Court the alternative purposes for which the trial
court admitted the evidence of other acts. Rather, the parties have limited their briefs to the
soundness of Bradshaw, the issue on which we granted certiorari. For these reasons, we are
in no position to decide the ultimate question, and we leave that decision to the Court of
Appeals on remand.

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