VASS v. the STATE.

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.

NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 4, 2018

In the Court of Appeals of Georgia
A18A1281. VASS v. THE STATE.

MERCIER, Judge.

A jury found Christopher Vass guilty of aggravated assault and possession of

a firearm during the commission of a felony. He appeals, challenging the sufficiency

of the evidence to support the convictions and the admission of other crimes evidence

and expert testimony regarding domestic violence. Finding no basis for reversal, we

affirm.

1. Vass’s challenge to the sufficiency of the evidence is without merit.

When a criminal conviction is appealed, the appellant no longer enjoys
a presumption of innocence. And the relevant question is whether, after
reviewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. We do not weigh the evidence or determine
 witness credibility, and the jury’s verdict will be upheld so long as there
is some competent evidence, even though contradicted, to support each
fact necessary to make out the State’s case.

Belcher v. State, 344 Ga. App. 729, 731 (812 SE2d 51) (2018) (punctuation, footnotes

and emphasis omitted).

Viewed in the light most favorable to the prosecution, the evidence at trial

included the following. S. G. testified that she started dating Vass in 2012 and was in

a relationship with him for several years. When Vass and S. G. had disagreements,

“sometimes it would get physical,” and Vass would strike S. G. with his hands. Vass

hit S. G. on several occasions. Asked on direct examination why she stayed in the

relationship, S. G. responded that she loved Vass.

S. G. testified that on May 8, 2015, she and Vass were traveling in S. G.’s

vehicle when they began arguing. They arrived at an apartment complex where Vass’s

friend D. Y. lived, and Vass parked the vehicle. Vass retrieved a handgun from a

compartment in the rear of the vehicle; S. G. had not known there had been a gun in

the compartment. Vass then walked toward D. Y.’s apartment. S. G. followed Vass

up a staircase, telling him that their relationship “[was] not working,” that she wanted

him to return her belongings, and that she would leave him alone. Vass turned to face

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S. G., told her she was not getting anything back, pulled a gun from behind his back,

and pointed it at her. S. G. heard a sound, felt “heat,” and asked Vass if he shot her.

Vass replied, “Yes,” turned around, and entered D. Y.’s apartment. S. G., who was

shot in the chest, walked to the van and started to drive around the apartment building.

Vass ran to the van, moved S. G. to a passenger seat, and drove to DeKalb Medical

Center. While en route, Vass phoned D. Y. and told him to “get rid of the gun, [and

that] it was under the mattress.” Vass told S. G. to “make something up” about how

she got shot. When they arrived at the hospital, Vass carried S. G. into the emergency

room, announced that she had been shot, and left her there. Because the gunshot

wound was so severe, S. G. was rushed by ambulance from that hospital to a trauma

unit at Grady Memorial Hospital (“Grady Memorial”).

A trauma surgeon who examined S. G. in Grady Memorial’s emergency room

on May 8, 2015 testified that S. G. sustained a gunshot wound to her chest and a

lacerated liver. The surgeon classified S. G.’s wound as a “level one,” which is the

“highest level of acuity,” meaning that the injury “may result in either serious harm or

even death.” S. G. was treated and monitored in the hospital, then discharged several

days later.

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 When police officers questioned S. G. during her hospitalization about the

gunshot wound, she did not tell them that Vass shot her. Instead, she stated that she

had been struck by a stray bullet while standing outside her vehicle. Weeks later, on

May 26, 2015, S. G. told police that Vass had shot her. Then, after Vass was arrested

for the shooting, S. G. went to the district attorney’s office and asked that the charges

be dropped, because S. G. “just wanted [Vass] to come home.” At trial, S. G.

testified that Vass had shot her during the argument (as set out above). When asked

at trial why she did not report that initially and why she requested that the charges be

dropped, S. G. replied, “because [she] loved him” and hoped that they would get

back together.

At trial, as other acts evidence, C. T. testified that she had been in a romantic

relationship with Vass, and that the relationship ended in 2006, soon after their child

was born. In 2007, C. T. and her mother went to Vass’s grandmother’s home to pick

up the child. An argument ensued between Vass and C. T., and Vass “pulled out

something” that “look[ed] like a . . . handgun.” Vass then fled on foot. C. T.’s mother

phoned police. When the prosecutor asked C. T. if she remembered telling the police

and the prosecutor that Vass actually pointed a handgun at her, C. T. replied that she

did not remember saying that. C. T. and her mother reported the incident to the police

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that day. C. T. did not later speak to police officers or contact anyone else about the

incident; she “just moved on.” (In the hearing on the motion, defense counsel informed

the trial court that the charges filed in that case, aggravated assault and pointing a pistol

at another, were dismissed.)

At trial, the State called a mental health clinician to testify as an expert regarding

domestic violence. The mental health clinician testified that she had a master’s degree

in clinical community counseling, was employed at a local non-profit domestic

violence organization, and worked with victims of trauma and “extreme abuse.” She

assisted in the treatment of family violence victims and, at the time of trial, had been

working in that capacity for 16 years, conducted and underwent training in the areas

of abuse and domestic violence, and helped build a “victim-centered” temporary

protective order program that “is considered a model for the nation.” The trial court

qualified the mental health clinician as an expert in the area of domestic violence.

When asked to explain the term “domestic violence,” the mental health clinician

replied that “domestic violence,” a term “that’s used interchangabl[y]” with “intimate

partner violence,” refers to people who are involved in a domestic relationship or are

dating, and not necessarily living together, in which one party is perpetuating violence

against another. She explained that such relationships sometimes include a “cycle of

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violence,” in which a violent incident is followed by a “honeymoon phase” that may

include apologies and forgiveness, then an improvement, a rebuilding of tension, and

another incident of violence. The mental health clinician testified that it is common for

a victim to try to protect the abuser, to not report the abuse to law enforcement, and

to change his or her story or recant a report of abuse. She added that a victim may

engage in such conduct as a survival tactic or a coping mechanism, or as a means of

staying in a relationship he or she does not want to end.

The indictment pertinently alleged that Vass committed the offense of

aggravated assault by assaulting S. G. with a deadly weapon and that he possessed a

firearm during the commission of a felony (aggravated assault). See OCGA §§ 16-5-21

(a) (2), 16-11-106 (b) (1). “[T]he testimony of a single witness is generally sufficient

to establish a fact.” Belcher, supra at 731 (1) (punctuation and footnote omitted). The

credibility of a witness is a matter for the trier of fact. OCGA § 24-6-620. The

evidence at trial was sufficient to authorize a rational trier of fact to find Vass guilty

beyond a reasonable doubt of the offenses for which the jury returned verdicts of guilt.

See generally Barnes v. State, 296 Ga. App. 493, 495 (675 SE2d 233) (2009); Daniels

v. State, 302 Ga. 90, 93 (1) (805 SE2d 80) (2017).

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 2. Vass contends that the trial court erred by allowing the State to introduce,

pursuant to OCGA § 24-4-404, evidence that he previously pointed a gun at C. T. (his

former girlfriend and the mother of his child) during an argument. He asserts that the

probative value of that evidence was outweighed by its prejudicial effect.1 The trial

court did not abuse its discretion.

Rule 404 (b) of Georgia’s new Evidence Code provides:

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.

Even relevant evidence offered for a proper purpose under Rule 404 (b)
may be excluded under OCGA § 24-4-403 (“Rule 403”), however, “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.” Rule 403.

1
Because Vass’s trial was held after January 1, 2013 (July 5, 2016), Georgia’s
new Evidence Code governs our resolution of the evidentiary issues raised in this
appeal. See Revere v. State, 302 Ga. 44, 47 (2) (805 SE2d 69) (2017).

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State v. Jones, 297 Ga. 156, 158 (1) (773 SE2d 170) (2015) (citation and punctuation

omitted).

In determining the admissibility of other acts evidence pursuant to Rules 403

and 404 (b), we apply a three-prong test. Id., citing Bradshaw v. State, 296 Ga. 650,

656 (769 SE2d 892) (2015). Under this test, for the other acts evidence to be

admissible,

the State must make a showing that: (1) evidence of extrinsic, or other,
acts is relevant to an issue other than a defendant’s character, see Rule
404 (b); (2) 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 Rule 403; and (3) there is sufficient proof so
that the jury could find that the defendant committed the act in question.

Jones, supra at 158-159 (1) (citations omitted). We will not overturn a trial court’s

decision to admit other acts evidence unless there is a clear abuse of discretion. Id. at

159 (1).

In arguing its Rule 404 (b) motion, the State asserted that during an argument

Vass pulled out a black handgun and threatened C. T., after which C. T. phoned

police and filed a police report. The State indicated that C. T. would testify about the

incident at trial. The State argued that the other acts evidence was relevant to the issue

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of identity because Vass denied being the person who shot S. G., and it was relevant

to the issue of intent because it showed Vass’s “intent[] to show his power and

control over a significant partner.” In deciding to admit the other acts evidence, the

trial court found that the evidence was relevant to the issues of intent and identity, that

the probative value of the other acts evidence was “greater . . . because [S. G.] has

changed her story” several times, and that the State had sufficient evidence to show

that Vass committed the other acts. Before C. T. testified, the court instructed the jury

that it was for the jury to determine whether Vass committed the other acts and, if it

found that he did, it could consider the other acts evidence only for a limited purpose.

As to the first prong of the test, we find no abuse of discretion in the trial

court’s determination that evidence of the prior incident was relevant, as that evidence

had a “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, supra at 159 (2) (footnote and punctuation omitted). The other

acts evidence was admitted for the purpose of establishing Vass’s intent (or identity)

in committing aggravated assault on S. G., and a jury could infer from his intent to

assault a former girlfriend with a gun during an argument that he possessed the

requisite intent on this occasion. See generally Jones, supra at 160 (2); Gunn v. State,

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342 Ga. App. 615, 620-621 (1) (804 SE2d 118) (2017); Johnson v. State, 340 Ga.

App. 429, 433 (2) (a) (797 SE2d 666) (2017). Although Vass asserts that the prior acts

and the charged crimes were dissimilar in some respects, the crimes were not required

to be identical for evidence of the other acts to be admissible. See Curry v. State, 330

Ga. App. 610, 615 (1) (768 SE2d 791) (2015). The prior acts were sufficiently similar

to the charged offenses to be admissible. See id. at 616.

As to the second prong of the test, the trial court did not err in its evaluation of

the probative value versus the prejudicial value of the other acts evidence. “Generally

speaking, the greater the tendency to make the existence of a fact more or less

probable, the greater the probative value.” Olds v. State, 299 Ga. 65, 75 (786 SE2d

633) (2016). Additionally, the more strongly an issue is contested, the greater the

justification for admitting other acts evidence. Dixon v. State, 341 Ga. App. 255, 261

(1) (b) (800 SE2d 11) (2017). In close cases, the balance is to be struck in favor of

admissibility. Turner v. State, 345 Ga. App. 427, 430-431 (1) (811 SE2d 97) (2018).

In the instant case, the State’s need for the evidence was great because Vass denied

shooting S. G. and the defense questioned her credibility based on her changing

narrative regarding who shot her. Under the circumstances, we find no abuse of the

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trial court’s discretion in its application of the balancing test. See Brannon v. State,

298 Ga. 601, 608 (4) (783 SE2d 642) (2016); Dixon, supra at 262 (1).

“Under the third prong of the test, there must be sufficient proof to enable a jury

to find by a preponderance of the evidence that the defendant committed the other acts

in question.” Silvey v. State, 335 Ga. App. 383, 388 (1) (c) (780 SE2d 708) (2015)

(citations and punctuation omitted). It was in the trial court’s discretion to find that

there was sufficient proof from which the jury could conclude that Vass committed

the acts of which C. T. had accused him. Given the State’s proffer that C. T. would

testify at trial and identify Vass as the person who “pulled a . . . handgun at her, and

. . . threatened her,” we find no abuse of discretion. See Pike v. State, 302 Ga. 795,

801 (4) (809 SE2d 756) (2018).

3. Vass contends that the trial court erred by admitting “‘expert evidence’ of

domestic violence” when Vass “was not charged with domestic violence.” This

contention is without merit.

At trial, the trial court qualified the mental health clinician, without objection, as

an expert in domestic violence. The mental health clinician explained that the term

“domestic violence” is “used interchangabl[y]” with the term “intimate partner

violence,” and that the terms refer to people involved in a domestic relationship or who

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are dating, in which one person perpetuates violence against another. She testified

about the “cycle of violence,” the behavior of domestic or intimate partner, and why

such individuals might not report abuse and might give contradictory statements

regarding about how they were injured. Vass did not object to the testimony.

Under the revised Evidence Code, we review the unobjected-to testimony for

plain error. Gipson v. State, 332 Ga. App. 309, 314 (3) (772 SE2d 402) (2015). “The

bar for plain error is a high one[.]” Brewner v. State, 302 Ga. 6, 12 (III) (804 SE2d 94)

(2017).

To rise to the high level of plain error, the error must be “one that is so
clearly erroneous that it creates a likelihood of a grave miscarriage of
justice or seriously affects the fairness, integrity, or public reputation of
the judicial proceeding,” and the “appellant must show that the error
caused him harm, i.e., that the error likely affected the outcome at trial.”

Gipson, supra (citation omitted).

“Expert testimony is admissible to explain the behavior of a domestic violence

victim who does not report abuse or leave the abuser,” Brown v. State, 325 Ga. App.

237, 244 (2) (b) (750 SE2d 453) (2013) (punctuation and footnote omitted), and to

explain a domestic violence victim’s contradictory statements about what happened.

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Gipson, supra at 315 (3). Here, the expert’s testimony was relevant to explain the

reasons a victim (here, S. G. or C. T.) might not report the abuse or might give

contradictory statements about what happened. See id.

Vass cites no authority for his contention that expert testimony regarding

domestic violence is not relevant unless the defendant was specifically charged with

a “domestic violence” crime. In any event, the mental health clinician in this case

testified that the “cycle of violence” principles apply to intimate relationships (not only

relationships where the parties live together), and the evidence established that Vass

had an intimate relationship with S. G. (as well as with C. T.). Thus, the trial court

committed no clear or obvious error, much less plain error, in admitting the expert’s

testimony. See Gipson, supra at 316.

Judgment affirmed. Dillard, C. J., and Doyle, P. J., concur.

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