ADAMS v. the STATE.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, 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

December 27, 2017

In the Court of Appeals of Georgia
A17A1977. ADAMS v. THE STATE.

BARNES, Presiding Judge.

A Hall County jury found Gregory Claude Adams guilty of driving under the

influence of alcohol to the extent that he was less safe to drive (“DUI”), failure to

maintain lane, and following too closely. On appeal, Adams challenges the

introduction of testimony and documentary evidence of a stipulation reached at an

administrative civil hearing pertaining to the suspension of his driver’s license and

the introduction of a prior incident in which he was arrested for DUI. For the reasons

discussed below, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” (Citation and punctuation omitted.) Danley v. State, 342 Ga. App. 61, 61

(802 SE2d 851) (2017). So viewed, the evidence shows that on the afternoon of July

2, 2016, a trooper with the Georgia State Patrol was traveling southbound on Georgia
State Route 11 when he saw an overturned pickup truck down an embankment off the

shoulder of the highway. The driver had exited from the overturned truck and walked

back up to the shoulder of the highway, and the trooper stopped his patrol car and

approached the driver, who identified himself as Adams. The trooper asked Adams

whether he was okay, and Adams indicated that he was fine. Adams told the trooper

that he had been traveling southbound on the highway when the vehicle in front of

him abruptly stopped and turned onto a side street. According to Adams, he had

swerved to the shoulder to avoid the vehicle, lost control of his truck, and crashed

down the embankment. As Adams spoke, the trooper noticed a strong odor of alcohol

coming from his breath and observed that he had bloodshot eyes and slowed speech.

After Adams was checked by emergency medical personnel who had responded

to the scene, the trooper continued speaking with him. Adams denied having anything

to drink and declined to take a preliminary breath test and the walk-and-turn and one-

leg stand field sobriety tests. However, Adams agreed to take the horizontal gaze

nystagmus (“HGN”) field sobriety test and exhibited six out of six clues of

impairment.

Based on Adams’ description of what had occurred on the highway, the crash

scene, his physical manifestations, and his performance on the HGN test, the trooper

2
concluded that Adams had been driving under the influence of alcohol and arrested

him for DUI. The trooper read Georgia’s implied consent notice for suspects over the

age of 21 to Adams and requested that he take a State-administered blood test. Adams

declined to take the test.

Adams was charged by accusation with DUI less safe, failure to maintain lane,

and following too closely.1 The trooper who had arrested Adams also filed a sworn

report with the Department of Driver Services to initiate the process of

administratively suspending Adams’s driver’s license based on his refusal to take the

State-administered blood test.2 However, at the subsequent administrative license

suspension (“ALS”) hearing, the trooper and Adams’s defense counsel agreed that

Adams would enter a guilty plea to the DUI charge in the criminal case in exchange

for the trooper withdrawing his sworn report and suspending the ALS proceeding.

1
Adams also was charged with no proof of insurance but was acquitted of that
offense at trial.
2
In Georgia, if a suspect arrested for DUI refuses to take the State-administered
chemical test under the implied consent law, his driver’s license is suspended, subject
to an administrative license suspension hearing. See OCGA § 40-5-67.1 (d), (f), (g);
Flading v. State, 327 Ga. App. 346, 347, n. 2 (759 SE2d 67) (2014). After a suspect
refuses to take the State-administered chemical test, the law enforcement officer
submits a report of the refusal to the Department of Driver Services as part of the
administrative suspension process. See OCGA § 40-5-67.1 (d).

3
Consequently, the trooper and defense counsel filed a joint motion to withdraw the

suspension of Adams’s driver’s license that memorialized the stipulation reached by

the parties (the “ALS Stipulation”). The ALS Stipulation pertinently stated:

Come now the parties in the above styled case and respectfully request
that the sworn report, the 1205 form, be withdrawn and in so doing
respectfully show as follows; the undersigned arresting officer is the
plaintiff in this case. As such the arresting officer completed a sworn
report which was submitted to the Georgia Department of Driver
Services pursuant to OCGA [§] 40-5-67.1[.] [I]t is now the intent of the
undersigned arresting officer to withdraw this sworn report and suspend
the administrative suspension. This withdrawal of this sworn report is
based upon the agreement between the parties wherein the petitioner,
Mr. Adams, agrees to enter a guilty plea to the underlying [DUI] charge
. . . . The petitioner, Mr. Adams, further agrees that if he fails to enter a
plea of guilty to the underlying [DUI] charge . . . on or before December
1, 2016, if he request any motions, preliminary hearings or any court
action other than entering a guilty plea the petitioner waives his right to
hearing under OCGA [§] 40-5-67.1 [(g) (1)] and authorizes the arresting
officer to sign and file ex parte the affidavit below with this Court which
shall immediately enter an order reinstating the administrative
suspension without a hearing.

Adams ultimately failed to enter a guilty plea, and a criminal trial ensued.

During the trial, the trooper testified to his encounter with Adams on the roadside as

4
previously summarized, and the State introduced and played for the jury an audio

recording of the encounter captured on the microphone worn by the trooper.

Additionally, the trooper testified about the ALS Stipulation reached with defense

counsel, the ALS Stipulation was introduced into evidence and read to the jury, and

the ALS Stipulation was sent out with the jury after jurors requested to see it during

their deliberations. The State also introduced, through the testimony of a deputy

sheriff from a different county, evidence of a prior occasion in which Adams had

been arrested for DUI. After hearing all the evidence, the jury found Adams guilty of

DUI less safe, failure to maintain lane, and following too closely. This appeal

followed in which Adams challenges several evidentiary rulings by the trial court.3

1. In related enumerations of error, Adams contends that the trial court erred

in permitting the State to introduce evidence of the ALS Stipulation because it was

irrelevant, unfairly prejudicial, and could not be introduced as an admission against

3
Contrary to OCGA § 5-6-37, Adams in his notice of appeal designated only
certain portions of the record for inclusion in the record on appeal. See OCGA § 5-6-
37 (providing, among other things, that the notice of appeal “shall set forth . . . a
designation of those portions of the record to be omitted from the record on appeal”)
(emphasis supplied). The incomplete record in this appeal hampers our ability to
review some of Adams’s claims of error, as more fully explained below.

5
him in his criminal trial.4 Adams further contends on the same grounds that the trial

court should have granted a mistrial in response to the trooper’s testimony about the

ALS Stipulation.

Notably, however, Adams neither moved for a mistrial nor objected to the

introduction of the ALS Stipulation on the grounds that it was irrelevant, unfairly

prejudicial, and should not be treated as an admission. “To preserve an objection

upon a specific ground for appeal, the objection on that specific ground must be made

at trial, or else it is waived.” (Citations and punctuation omitted.) Sneed v. State, 337

Ga. App. 782, 785 (1) (b) (788 SE2d 892) (2016). As we have explained, “where an

entirely different objection is presented on appeal, we cannot consider it because this

is a court for review and correction of error committed in the trial court.” (Citation

and punctuation omitted.) Volcey v. State, 200 Ga. App. 881, 883 (2) (410 SE2d 36)

(1991). For the same reason, an appellant is barred from raising a ground for mistrial

on appeal that was never raised in the trial court. Chenoweth v. State, 281 Ga. 7, 12

(4) (b) (635 SE2d 730) (2006). Accordingly, Adams waived his argument raised for

4
Because Adams was tried in May 2017, we will address the evidentiary issues
raised in this appeal under Georgia’s new Evidence Code. See Ga. L. 2011, p. 214,
§ 101 (new Evidence Code “shall become effective on January 1, 2013, and shall
apply to any . . . trial commenced on or after such date”).

6
the first time on appeal that evidence of the ALS Stipulation was inadmissible as

irrelevant and unfairly prejudicial and should not be treated as an admission against

him.

Nor has Adams demonstrated that the admission of testimony and documentary

evidence of the ALS Stipulation constituted plain error. See OCGA § 24-1-103 (d).5

In regard to a plain-error review of a ruling on evidence, the analysis
consists of four parts. First, there must be an error or defect – some sort
of deviation from a legal rule – that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the appellant.
Second, the legal error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected the appellant’s
substantial rights, which in the ordinary case means he must demonstrate
that it affected the outcome of the trial court proceedings. Fourth and
finally, if the above three prongs are satisfied, the appellate court has the
discretion to remedy the error – discretion which ought to be exercised

5
OCGA § 24-1-103 provides in relevant part:
(a) Error shall not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected and:
(1) In case the ruling is one admitting evidence, a timely objection or
motion to strike appears of record, stating the specific ground of
objection, if the specific ground was not apparent from the context . . .
....
(d) Nothing in this Code section shall preclude a court from taking
notice of plain errors affecting substantial rights although such errors
were not brought to the attention of the court.

7
 only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings. Thus, beyond showing a clear or
obvious error, plain-error analysis requires the appellant to make an
affirmative showing that the error probably did affect the outcome
below.

(Citation and punctuation omitted.) Wilson v. State, 301 Ga. 83, 88 (2) (799 SE2d

757) (2017). “Satisfying all four prongs of this standard is difficult, as it should be.”

(Citation and punctuation omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d

232) (2011).

Adams cannot show error, much less plain error, in the admission of evidence

pertaining to the ALS Stipulation. The present case is controlled adversely to Adams

by Flading v. State, 327 Ga. App. 346, 348-351 (1) (759 SE2d 67) (2014), where this

Court upheld the admission of a similar written stipulation entered in an ALS hearing

that was signed by defense counsel and a law enforcement officer, where there was

no evidence of fraud or mistake in reaching the stipulation and no evidence that the

defendant ever repudiated his counsel’s authority to make the stipulation. We

concluded in Flading that the trial court did not abuse its discretion by admitting the

stipulation in the defendant’s criminal trial because a stipulation entered in an ALS

hearing that the defendant “would plead guilty to DUI in exchange for the return of

8
his driver’s license [was] relevant to, though certainly not dispositive of, the charge

that he was driving under the influence of alcohol,” and its probative value was not

substantially outweighed by its prejudicial effect. Id. at 351-352 (2).6

As in Flading, Adams does not claim fraud or mistake in entering the ALS

Stipulation, and he never repudiated his counsel’s authority to make the Stipulation.

Accordingly, [Adams], having accepted the benefit of the stipulation in
the form of the reinstatement of his license and having shown no fraud
or mistake, acquiesced to his counsel’s stipulation to plead guilty to the
DUI and to the admissibility of the [ALS Stipulation] in a subsequent
legal proceeding related to the DUI charge.

Flading, 327 Ga. App. at 351 (1). It follows that Adams has failed to demonstrate any

error, plain or otherwise, in the admission of evidence pertaining to the ALS

6
The written stipulation in Flading included additional language that “[t]he
parties agree that a copy of this final decision may be admitted into any subsequent
legal proceeding involving the charge as an admission by Flading of Flading’s guilt
or nolo contendere in exchange for the rescission of the administrative license
suspension.” (Punctuation omitted.) Flading, 327 Ga. App. at 348. However, our
analysis in Flading did not turn on that particular sentence contained within the
stipulation, but rather on “our general law regarding a party’s admissions and
stipulations in criminal proceedings” and on the relevancy of “Flading’s stipulation
that he would plead guilty to DUI in exchange for the return of his driver’s license.”
Id. at 350 (1), 351 (2). Hence, the differences between the language of the written
stipulations found in Flading and the present case are immaterial and do not affect
the outcome here.

9
Stipulation, and thus has failed to establish any basis for reversal. See Wilson, 301

Ga. at 88 (2).7

2. Adams also appears to claim that the trial court erred by not permitting his

defense counsel to testify about his conversations with the trooper regarding the ALS

Stipulation because the “agreement did not contain an entire agreement clause and

therefore parole evidence should have been admissible,” including the testimony of

his own counsel. But, “[t]o prevail on appeal, an appellant must show harm as well

as error in the exclusion of evidence.” (Citation and punctuation omitted.) Clemens

v. State, 318 Ga. App. 16, 22 (4) (733 SE2d 67) (2012). Defense counsel was

permitted to cross-examine the trooper about their conversations over the ALS

Stipulation, and defense counsel never made a specific proffer reflecting how his

testimony about the ALS Stipulation would have materially differed from the

trooper’s testimony. Consequently, pretermitting whether the trial court should have

permitted defense counsel to testify about the ALS Stipulation, we conclude that

7
Adams also argues that the trial court erred in allowing the prosecutor to make
comments during closing argument about the ALS Stipulation that improperly
attacked his character and integrity. Because Adams did not object to the prosecutor’s
comments at trial, he has waived review of these comments on appeal, and “the
alleged errors here based on improper remarks during closing argument are not
subject to review on appeal for plain error” under OCGA § 24-1-103 (d). Gates v.
State, 298 Ga. 324, 328 (4) (781 SE2d 772) (2016).

10
Adams has failed to show any harm resulting from the exclusion. See id. (appellant

could not show harm in the absence of proffer of witness’s excluded testimony);

Gawlak v. State, 310 Ga. App. 757, 758 (1) (714 SE2d 354) (2011) (no reversible

error where appellant failed to make adequate proffer of proposed testimony).

3. Adams further contends that the trial court violated the continuing witness

rule by allowing the ALS Stipulation to go out with the jury during its deliberations.

During its deliberations, the jury sent a note to the trial court requesting to see the

ALS Stipulation, which had not initially been sent out with the jurors. The trial court

allowed the ALS Stipulation to be sent out to the jury in response to the note after

first giving jurors a limiting instruction that “by sending this form out with you, I am

not trying to emphasize this piece of evidence over any other evidence that you saw

and heard.”

Because Adams did not object on the basis of the continuing witness rule when

the trial court allowed the ALS Stipulation to go back with the jury in response to the

jurors’ note, his claim of error is waived. See Varner v. State, 297 Ga. App. 799, 804

(4) (678 SE2d 515) (2009). And, assuming arguendo that plain-error review applies

in this context, we conclude that the trial court did not commit plain error by allowing

the ALS Stipulation to go back with the jury. As previously noted, reversal for plain

11
error under OCGA § 24-1-103 (d) is authorized only if the trial court’s evidentiary

ruling was erroneous, the error was obvious, the error likely affected the outcome at

trial, and the error seriously affects the fairness, integrity or public reputation of

judicial proceedings. Wilson, 301 Ga. at 88 (2). Adams cannot show that all of four

of these prongs have been satisfied here.8

In Georgia, the continuing witness objection is based on the
notion that written testimony is heard by the jury when read from the
witness stand just as oral testimony is heard when given from the
witness stand. But, it is unfair and places undue emphasis on written
testimony for the writing to go out with the jury to be read again during
deliberations, while oral testimony is received but once. The types of
documents that have been held subject to the rule include affidavits,
depositions, written confessions, statements, and dying declarations.

(Citation and punctuation omitted.) Rainwater, 300 Ga. at 804 (2).9 “These

documents, which generally contain their makers’ assertions of purported truths, are

8
Because there was no plain error in this case, we need not decide whether
allowing a particular document to go back with the jury in violation of the continuing
witness rule is an evidentiary ruling requiring plain-error review under OCGA § 24-1-
103 (d). See Rainwater v. State, 300 Ga. 800, 804 (2), n. 3 (797 SE2d 889) (2017).
9
The continuing witness rule predates Georgia’s new Evidence Code and the
rule “was unaffected by the enactment of the new Evidence Code.” Rainwater, 300
Ga. at 802 (2), n. 3.

12
ascribed evidentiary value only to the extent that their makers are credible.” (Citation

and punctuation omitted.) Davis v. State, 285 Ga. 343, 348 (8) (676 SE2d 215)

(2009). But, the continuing witness rule is inapplicable where the document at issue

is “original documentary evidence” or where the document is non-testimonial in

nature because it was not “a reduction of or substitute for [a] person’s oral

statements” or testimony. Paul S. Milich, Georgia Rules of Evidence § 19:8 at 762-

763 (2016-2017 ed.). See, e.g., Young v. State, 292 Ga. 443, 446 (3) (b) (738 SE2d

575) (2013) (informant’s letter could go out with jury because “the letter was not the

reduction to writing of an oral statement, nor was it a written statement provided in

lieu of testimony”); Davis, 285 Ga. at 348 (8) (letters, photographs, and death

certificate were “original documentary evidence[] and were properly allowed to go

out with the jury”); Turner v. State, 331 Ga. App. 78, 81 (2) (769 SE2d 785) (2015)

(trial court did not err in permitting photographic lineup identification forms

containing administrative information to go out with jury because the forms were “not

equivalent to testimony”); Ruffin v. State, 333 Ga. App. 793, 795-796 (2) (777 SE2d

262) (2015) (witness-drawn diagram properly allowed to go back with jury because

diagram was not the “functional equivalent of a deposition” and did not constitute

“testimonial documentary evidence”) (citations and punctuation omitted).

13
 In the present case, we need not decide whether the trial court violated the

continuing witness rule in permitting the ALS Stipulation to go out with the jury,

because even if it was error to do so, the error did not rise to the level of plain error.

Given that “this case is before us on plain error review, an actual legal error is not

enough but must be clear or obvious and not subject to reasonable dispute.” (Citation

and punctuation omitted.) Wilson v. State, 291 Ga. 458, 459 (729 SE2d 364) (2012).

“[A]n error is plain if it is clear or obvious under current law[, and] [a]n error cannot

be plain where there is no controlling authority on point.” (Citation and punctuation

omitted.) Simmons v. State, 299 Ga. 370, 374 (2) (788 SE2d 494) (2016). In light of

our precedent, it is subject to reasonable dispute whether a written stipulation like the

one in this case, which contains an admission attributable to the defendant but no

factual description of the underlying criminal offense, should be treated as the

equivalent of testimony or a written confession by the defendant. Thus, whether the

trial court violated the continuing witness rule by allowing the ALS Stipulation to go

back with the jury is not clear or obvious under current law. See id. Consequently, the

second prong of our plain-error analysis has not been satisfied, and the trial court’s

14
decision to permit the ALS Stipulation to go back with the jury does not constitute

plain error. See Simmons, 299 Ga. at 374 (2); Wilson, 291 Ga. at 460.10

4. Lastly, Adams maintains that the trial court erred by admitting evidence of

a prior driving incident in which he was arrested for DUI. According to Adams,

evidence of his prior driving incident was inadmissible because he was not convicted

of DUI, it was not relevant to prove knowledge or plan, and its probative value was

substantially outweighed by unfair prejudice. Adams has failed to show that the trial

court abused its discretion in admitting evidence of the prior DUI incident.

Before trial, the State filed its notice of intent to introduce evidence of Adams’s

prior DUI arrest that occurred in June 2011 in White County. At a pretrial hearing,

10
Adams also claims that the trial court erred in permitting the ALS Stipulation
to go back with the jury without providing a “sufficient limiting instruction,” but he
does not articulate what specific limiting instruction should in fact have been given
by the court. Because “mere conclusory statements are not the type of meaningful
argument contemplated by our rules,” Adams’s claim regarding the trial court’s
limiting instruction will not be addressed. (Citation and punctuation omitted.) Brittain
v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106) (2014). See Court of Appeals
Rules 25 (a) (3), (c) (2). In any event, the final jury charge is not included in the
appellate record, and thus it is impossible to tell whether any other instructions
relevant to the ALS Stipulation were given by the trial court. See generally Morgan
v. State, 204 Ga. App. 178, 180-181 (1) (b) (419 SE2d 313) (1992) (jury charges,
including final jury charge and all limiting or cautionary instructions, must be read
as a whole to determine whether error occurred). Given this incomplete record,
Adams’s argument regarding the limiting instruction provides nothing for us to
review. See Bollinger v. State, 259 Ga. App. 102, 105 (2) (576 SE2d 80) (2003).

15
the prosecutor proffered the following summary of the anticipated testimony of the

deputy with the White County Sheriff’s Office who arrested Adams in the prior

incident. On the day in question, the deputy initiated a traffic stop after observing a

pickup truck driven by Adams repeatedly run off the shoulder of the road. The truck

ran up on the curb and sidewalk as it came to a stop. The deputy then approached the

truck and made contact with Adams, who smelled strongly of alcohol and had watery,

bloodshot eyes and slurred speech. Adams initially said he had not had much alcohol

to drink but then claimed that he had not been drinking at all. Adams agreed to take

the HGN field sobriety test and exhibited six out of six clues of impairment. The

deputy chose not to perform the walk-and-turn and one-leg stand field sobriety tests

because Adams was too unsteady on his feet. After being arrested for DUI and read

Georgia’s implied consent notice, Adams refused the State-administered chemical

test. Adams ultimately pled guilty to reckless driving. The State proffered the

deputy’s testimony about the June 2011 driving incident for the purpose of showing

that Adams had acquired knowledge of the testing procedures used by the State to

secure a DUI conviction and had developed a similar plan of refusal in the current

case in an effort to avoid a DUI conviction. Following the prosecutor’s proffer of the

deputy’s testimony and argument presented by the parties, the trial court held that

16
Adams’s prior DUI incident was admissible for a relevant purpose under OCGA § 24-

4-417 (“Rule 417”) and that its admission would not be unfairly prejudicial under the

balancing test of OCGA § 24-4-403 (“Rule 403”).

(a) Adams first contends that Rule 417 (a) (1) requires that a criminal defendant

have been convicted of DUI for the prior driving incident to be admissible. We are

unpersuaded.

Rule 417 (a) (1) provides:

In a criminal proceeding involving a prosecution for a [DUI] violation
. . . , evidence of the commission of another [DUI] violation . . . on a
different occasion by the same accused shall be admissible when . . .
[t]he accused refused in the current case to take the state administered
test required by Code Section 40-5-55 and such evidence is relevant to
prove knowledge, plan, or absence of mistake or accident[.]

Notably, Rule 417 expressly provides that “evidence of the commission of another

[DUI offense] on a different occasion by the same accused shall be admissible,”

rather than evidence of a conviction. “Under our well-established rules of statutory

construction, we presume that the General Assembly meant what it said and said what

it meant,” and “where the statutory text is clear and unambiguous, we attribute to the

statute its plain meaning, and our search for statutory meaning ends.” (Citations and

17
punctuation omitted.) Patton v. Vanterpool, __ Ga. __ (Case No. S17A0767, decided

Oct. 16, 2017). Accordingly, we conclude by choosing the word “commission” rather

than “conviction” in Rule 417 (a) (1), the General Assembly intended for a prior

driving incident to be admissible where there is evidence that a DUI was committed

by the criminal defendant, even if the defendant was not convicted of that offense.

This is consistent with our longstanding precedent “that there need not be criminal

charges or conviction relating to a similar offense for it to be admissible.” Hassel v.

State, 257 Ga. App. 228, 230 (2) (570 SE2d 685) (2002). See Johnson v. State, 193

Ga. App. 618, 620 (388 SE2d 866) (1989). It is also consistent with our precedent

establishing that a defendant’s plea to a lesser offense in the prior case does not

preclude the similar transaction from being admissible. See Gonzalez v. State, 213

Ga. App. 667, 668 (1) (445 SE2d 769) (1994); Collins v. State, 205 Ga. App. 341,

343 (2) (422 SE2d 56 (1992). The trial court thus did not err in admitting evidence

of the prior DUI incident even though Adams was never convicted of that offense.

(b) Adams also claims that the prior DUI incident was inadmissible under Rule

417 (a) (1) because it was not relevant to prove knowledge and plan. We disagree.

A prior DUI is admissible under Rule 417 (a) (1) only if it is relevant to prove

knowledge, plan, absence of mistake, or accident. State v. Frost, 297 Ga. 296, 301

18
(773 SE2d 700) (2015). However, Rule 417 is a “rule of inclusion” that creates a

presumption in favor of the admission of such evidence, given that “Rule 417 (a) (1)

speaks of evidence that ‘shall be admissible.’” (Citation and punctuation omitted.) Id.

Moreover, “[t]he admission of evidence is a matter which rests largely within the

sound discretion of the trial court and will not be disturbed absent an abuse of

discretion.” (Citation and punctuation omitted). Kim v. State, 337 Ga. App. 155, 157

(786 SE2d 532) (2016).

The State proffered the deputy’s testimony about the June 2011 driving

incident for the purpose of proving that Adams had acquired knowledge of the testing

procedures used by the State to secure a DUI conviction and had developed a similar

plan to refuse consent in the present case as part of an effort to avoid a DUI

conviction. In light of the State’s proffer, the trial court did not abuse its discretion

in finding that Adams’s prior DUI incident was relevant for proving knowledge and

plan. This is because

[e]vidence of the prior DUI . . . could show that [Adams] had acquired
knowledge about the means by which law enforcement officers
determine whether and to what extent a driver is under the influence of
an intoxicant, and such awareness likewise might help to explain a
refusal in the present case to submit to a test.

19
Gibbs v. State, 341 Ga. App. 316, 318-319 (2) (800 SE2d 385) (2017), quoting Frost,

297 Ga. at 305. Accordingly, Adams’s prior DUI incident was admissible for a

relevant purpose under Rule 417 (a) (1). See Frost, 297 Ga. at 305; Danley v. State,

342 Ga. App. 61, 66 (4) (802 SE2d 851) (2017); Gibbs, 341 Ga. App. at 318-319 (2);

Monroe v. State, 340 Ga. App. 373, 375 (2) (797 SE2d 245) (2017).11

(c) Lastly, Adams contends that the prior DUI incident was inadmissible under

the balancing test set forth in OCGA § 24-4-403 (“Rule 403”) because its probative

11
At trial, the prosecutor asked the sheriff’s deputy from White County to
“please read as you did on the day in question the implied consent notice” that he read
to Adams after arresting him in the prior DUI incident. The deputy then read to the
jury Georgia’s implied consent notice for suspects under age 21, which was the
wrong version of the notice in light of Adams’s age in June 2011. See OCGA § 40-5-
67.1 (b) (1). On appeal, Adams argues that the deputy’s recital of the wrong implied
consent notice at trial rendered the prior DUI incident irrelevant to the present case
to prove knowledge and plan and thus required the exclusion of Adams’s prior DUI
incident under Rule 417 (a) (1). But, as noted above, Rule 417 is a “rule of inclusion”
that creates a presumption in favor of admissibility. (Citation and punctuation
omitted.) Frost, 297 Ga. at 301. And even if Adams was read the wrong implied
consent notice in the prior DUI incident, his refusal would still have some relevance
in the present trial to showing that he knew that the State relied upon chemical testing
to build a DUI prosecution and that he developed a plan to refuse consent in the
instant case in an attempt to similarly thwart the State’s efforts to convict him of that
offense. Thus, Adams’s argument on appeal is unpersuasive.

20
value was substantially outweighed by unfair prejudice.12 Adams has procedurally

waived this claim of error.

“A trial court’s decision to admit other acts evidence [under Rule 403] will be

overturned only where there is a clear abuse of discretion.” State v. Jones, 297 Ga.

156, 158 (1) (773 SE2d 170) (2015). And, in determining whether a trial court abused

its discretion in conducting the Rule 403 balancing test, appellate courts consider the

theory of the defense presented at trial. See Jones v. State, __ Ga. __ (2) (802 SE2d

234, 239) (2017) (taking into account “appellant’s main defense” at trial in assessing

whether trial court abused its discretion in finding that probative value of prior DUI

was not substantially outweighed by unfair prejudice); King v. State, 338 Ga. App.

783, 786-787 (792 SE2d 414) (2016) (trial court did not err in finding that probative

value of prior DUI was not substantially outweighed by unfair prejudice, where, “as

12
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.
“[W]hile neither this Court nor the Supreme Court has conclusively held that Rule
403 applies to Rule 417, we will presume without deciding that Rule 403 applies to
Rule 417.” (Citations and punctuation omitted.) Miller v. State, __ Ga. App. __ (1)
(Case No. A17A0651, decided Oct. 18, 2017). See Frost, 297 Ga. at 301-302, n. 6;
Gibbs, 341 Ga. App. at 320 (2).

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the trial court explained in its order, the State needed this evidence to support its case

and to counter [the accused’s] defense”).

However, as previously noted, in violation of OCGA § 5-6-37, Adams in his

notice of appeal designated only certain portions of the record for inclusion in the

record on appeal. The result is that the appellate record does not include, among other

things, the opening statement and closing argument of defense counsel, and the

portion of the record where the defense would have presented its case-in-chief or

rested without presenting any such evidence.13 Given this incomplete record, the

defense theory of the case is unclear, which hampers our review of the trial court’s

application of the Rule 403 balancing test. See Jones, __ Ga. at __ (2); King, 338 Ga.

App. at 786-787. “It is well established that the burden is on the party alleging error

to show it affirmatively by the record and that where the proof necessary for

determination of the issues on appeal is omitted from the record, the appellate court

must assume that the judgment below was correct and affirm.” (Citation and

punctuation omitted.) Bollinger, 259 Ga. App. at 105 (2). See Walker v. State, 305

Ga. App. 607, 615 (4) (699 SE2d 902) (2010). Consequently, Adams’s claim

13
Given the incomplete record, it is unclear whether Adams elected to testify
or present any defense witnesses.

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regarding prejudice presents nothing for our review, and we affirm the ruling of the

trial court. See id.

Judgment affirmed. McMillian and Mercier, JJ., concur.

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