ARRINGTON v. the STATE.

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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

October 24, 2018

In the Court of Appeals of Georgia
A18A0829. ARRINGTON v. THE STATE.

RAY, Judge.

After a jury trial, James Arrington was convicted of armed robbery, aggravated

assault, kidnapping with bodily injury, and possession of a firearm by a convicted

felon. On appeal, he argues that the trial court erred by admitting other acts evidence.

We affirm the conviction.

Viewed in the light most favorable to the jury’s verdict, the evidence showed

that Atlanta Cash Solutions is an independent automatic teller machine (“ATM”)

business that provides ATMs to bars, clubs, football games, festivals, and other

events. Atlanta Cash Solutions makes money from surcharges paid by users of the

ATMs.
 The night before an event, Jay Henderson, the owner of Atlanta Cash Solutions,

packs small lock boxes or cassettes with cash. The cassettes are then installed into the

ATMs at the events. Henderson’s employees transport the ATMs in a trailer pulled

by an unmarked van with the cash-filled cassettes inside the van. The cassettes are

secured with braided, steel cable and padlocks. The employees set up the ATMs at

the events and install the cash-filled cassettes.

At the time of the robbery, Henderson had three employees, Ali Babar, whom

he had known since they were children, Steven Borders, a long-time friend, and

Reggie Huffman, whom he had known a year. Appellant Arrington is Huffman’s

nephew. When Huffman started working for the company, the business began

experiencing robberies. From March 2012, when Huffman was hired, until the time

of this incident, three robberies had occurred.

On November 3, 2012, the day of the robbery at issue in this case, Henderson

had two or three events scheduled. Huffman and Babar were working that day. The

employees left at about 6:00 a.m., while it was still dark, with the ATMs and the cash-

filled cassettes, which were to be inserted into the ATMs at the event site. Huffman

was driving the van and trailer, and Babar was in the passenger seat.

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 Once Huffman and Babar had exited the subdivision, a man walked into the

street in front of the van holding a gun. When Huffman stopped the van, a second

man approached the passenger window and showed Babar what he thought was a

gun. The men opened the van doors and demanded Huffman’s and Babar’s phones.

They forced Babar into the back of the van and ordered Huffman to drive. They kept

threatening to shoot Huffman and Babar. The men eventually let Babar and Huffman

out of the van, and then drove off.

Babar and Huffman then went to a nearby McDonald’s restaurant and called

the police. When they exited the restaurant, they saw that the van and trailer were in

the parking lot. The cassettes, filled with $128,000 in cash, had been taken.

The police took the van for investigation. When Henderson got the van back,

Borders, the third employee, began cleaning the van and found a cell phone under the

passenger seat. The phone was Arrington’s and had an area code associated with

Montgomery, Alabama, where Arrington lived with his mother and another uncle.

Huffman claimed that he had borrowed the phone from Arrington, even though

his phone was working. When a detective with the Cobb County Police Department

interviewed Huffman the day of the robbery, Huffman had not mentioned a second

phone; he said only that the robbers took his phone. When the detective interviewed

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Huffman again after the phone had been found in the van, Huffman said that he had

borrowed the phone because he was unable to get reception in Montgomery, where

he had gone the night before the robbery to see Arrington. Huffman told Babar he had

borrowed the phone because his phone was dead. However, Arrington told the

detective that he had been in the van at an earlier time and that he had left his phone

in the van, not that Huffman had borrowed it.

Cell phone tracking records showed Arrington’s phone traveling from

Montgomery eastbound on I-85 five hours before the armed robbery and then making

three calls between 6:00 a.m. and 6:12 a.m., within minutes of the robbery, less than

a mile from the crime scene.

During his interview of Arrington, the detective mentioned deoxyribonucleic

acid (“DNA”) evidence, although the police had not actually recovered any of

Arrington’s DNA, and also mentioned items that officers had retrieved from the van,

from the area near the crime scene, and from the McDonald’s parking lot. Arrington

volunteered that he had borrowed Huffman’s knit cap — even though the detective

had not mentioned that they had found a knit cap behind the dumpster at the

McDonald’s.

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 Arrington’s mother and the uncle who lived with them both told the detective

that Arrington had gone to Atlanta in November 2012. The uncle added that the

purpose of the trip was to do a job with Huffman.

At issue is the trial court’s decision to allow the state to introduce evidence of

Arrington’s two 1989 Alabama convictions for robbery in the first degree. Alabama

Code § 13A-8-41 defines robbery in the first degree in pertinent part as threatening

“the imminent use of force against the person of the owner or any person present with

intent to compel acquiescence to the taking of or escaping with the property” while

“armed with a deadly weapon or dangerous instrument” or while possessing “an

article used or fashioned in a manner to lead any person who is present reasonably to

believe it to be a deadly weapon. . . .”

The jury found Arrington guilty of armed robbery, two counts of aggravated

assault, kidnapping with bodily injury, and possession of a firearm by a convicted

felon. Arrington moved for a new trial, which the trial court denied. This appeal

enused.

In his sole enumeration on appeal, Arrington argues that the trial court erred

in admitting evidence of his 1989 convictions for armed robbery. We disagree.

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 When we evaluate the admission of other acts evidence,

we start with the proposition that OCGA § 24-4-404 (b) (“Rule 404
(b)”) is, on its face, an evidentiary rule of inclusion which contains a
non-exhaustive list of purposes other than bad character for which other
acts evidence is deemed relevant and may be properly offered into
evidence. Despite its inclusive nature, Rule 404 (b) prohibits the
admission of such evidence when it is offered solely for the
impermissible purpose of showing a defendant’s bad character or
propensity to commit a crime. Consequently, we use a three-part test to
determine if evidence of other uncharged acts is admissible. Our
threshold inquiry is whether the evidence is probative of a material issue
other than character. Common examples include motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. OCGA § 24-4-404 (b). Second, the evidence must meet the
requirements of OCGA § 24-4-403 (“Rule 403”) — its probative value
must not be substantially outweighed by its undue prejudice. And, third,
the [s]tate must offer sufficient proof that the defendant committed the
act.

Thompson v. State, 302 Ga. 533, 539-540 (III) (A) (807 SE2d 899) (2017) (citation

and punctuation omitted).

The trial court held that the other acts evidence was relevant to an issue other

than Arrington’s character and was properly admitted for the limited purposes of

establishing his intent, motive, opportunity, knowledge, and preparation. It also found

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“that the State’s need for this evidence to prove its circumstantial case that

[Arrington] was one of the robbers and to negate the defense that [Arrington] did not

commit the robbery outweighed any possible prejudice by its admission.” Arrington

asserts that the State failed to show that the other acts evidence was relevant to the

issues of motive, opportunity, knowledge, and preparation, or that the probative value

outweighed the undue prejudice. However, he concedes that the evidence was

relevant to the issue of intent. Arrington does not argue that the State failed to offer

sufficient proof that he committed the other acts.

With regard to the element of intent, the trial court found that the other acts

involved the same mental state as the charged offense and thus were “were relevant

to show [Arrington’s] intent to commit a similar offense of robbing someone of their

cash by use of a handgun.”

“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 is satisfied.”

Bradshaw v. State, 296 Ga. 650 (656-657) (3) (769 SE2d 892) (2015) (citation

omitted). “A culpable state of mind — intent or criminal negligence — is an essential

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element of every crime. In both of the other acts, [Arrington] was alleged to have

used a gun [or an apparent gun to rob] others.”Johnson v. State, 340 Ga. App. 429,

433 (2) (a) (797 SE2d 666) (2017) (citation and punctuation omitted). In one of the

other acts, Arrington was convicted of robbery in the first degree for using a handgun

to rob a woman at a convenience store of $422. In the second act, Arrington was

convicted of robbery in the first degree for pretending to have a handgun and robbing

a cashier at a Burger King restaurant of $40.

Under OCGA § 16-8-41 (a), “[a] person commits the offense of armed robbery

when, with intent to commit theft, he or she takes property of another from the person

or the immediate presence of another by use of an offensive weapon, or any replica,

article, or device having the appearance of such weapon.” As noted above,

Arrington’s other acts involved the use of a weapon or an apparent weapon “with

intent to compel acquiescence to the taking of or escaping with . . . property.” Ala.

Code § 13A-8-41.

Consequently, “both [of the other acts] involve the same intent as required to

prove crimes [Arrington] was charged with in this case. Thus, the other acts were

‘relevant’ and satisfy the first prong for the admission of such evidence.” Johnson,

240 Ga. App. at 433 (2) (a) (citations omitted). Moreover, Arrington concedes that

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the other acts were relevant to show intent, which is one of the purposes for which

other acts may properly offered into evidence under OCGA § 24-4-404 (b).

Furthermore, the probative value of the evidence of Arrington’s prior

convictions was not substantially outweighed by any undue prejudicial impact,

because there was physical evidence of Arrington’s presence at the scene of the

crimes, indicating his involvement. Thus, the State’s need for the evidence of his

prior convictions to prove its circumstantial case that Arrington participated in the

crimes and to negate his defense that he was not a participant was more probative

than prejudicial. See e.g. United States v. Durham, 554 Fed. Appx. 901, 902-904 (I),

(II) (11th Cir. 2014) (where defendant asserted he was not the perpetrator of a

robbery, evidence of his attempt to commit another robbery was properly admitted

under Rule 404 (b) for the purpose of showing intent). In making this assessment,

“we look at the evidence in a light most favorable to its admission, maximizing its

probative value and minimizing its undue prejudicial impact.” Anglin v. State, 302

Ga. 333 (3) (806 SE2d 573) (2017). Lastly, we must be mindful that a trial court’s

decision to admit evidence pursuant to OCGA § 24-4-404 (b) is reviewed for a clear

abuse of discretion. (Citation omitted.) Brown v. State, 303 Ga. 158, 161 (2) (810

SE2d 145) (2018).

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 As the trial court did not clearly abuse its discretion in admitting Arrington’s

prior convictions for the purposes of establishing his intent in this case, we conclude

that the evidence was properly admitted into evidence. In so holding, we need not

address whether the other acts were also admissible for the purpose of showing

motive, opportunity, preparation, or knowledge.

Judgment affirmed. Rickman, J., concurs. McFadden, P. J., dissents.*

*THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF

APPEALS RULE 33.2

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 A18A0829. ARRINGTON v. THE STATE.

MCFADDEN, Presiding Judge, dissenting.

I respectfully dissent. The trial court erred in admitting evidence of Arrington’s

1989 first degree robbery convictions because the probative value of the evidence

was substantially outweighed by the danger of unfair prejudice. And the error was not

harmless because the case against Arrington was entirely circumstantial. So I would

reverse.

As the majority holds (and Arrington concedes), the other acts were relevant

to show intent. See OCGA § 24-4-404 (b). So the issue is whether such evidence

“should have been excluded under OCGA § 24-4-403 (“Rule 403”), which provides
for the exclusion of relevant evidence if, among other things, ‘its probative value is

substantially outweighed by the danger of unfair prejudice.’” Whaley v. State, 343

Ga. App. 701, 707-708 (3) (a) (ii) (808 SE2d 88) (2017). When we make this

assessment, “we look at the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its undue prejudicial impact.” Anglin

v. State, 302 Ga. 333 (3) (806 SE2d 573) (2017) (citation omitted). We “make 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.” Brown v. State, 303 Ga. 158, 161

(2) (810 SE2d 145) (2018) (citations and punctuation omitted). “Probative value also

depends on the marginal worth of the evidence — how much it adds, 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. And probative

value depends as well upon the need for the evidence.” Jones v. State, 301 Ga. 544,

547 (1) (802 SE2d 234) (2017) (citation and punctuation omitted). “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.” Brown, 303 Ga. at 162 (2) (citation and

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punctuation omitted). We review the trial court’s decision for a clear abuse of

discretion. Id.

“The classic situations calling for admissibility of independent crimes or acts

to prove intent are when the defendant admits a certain involvement in the criminal

incident but maintains he was duped or forced to go along and thus lacked the

necessary criminal intent or the defendant admits the charged conduct but claims he

did not intend to act criminally.” Milich, Georgia Rules of Evidence § 11:13

(2017-2018) (footnote omitted). This case does not present such a situation. Although

intent was in issue given Arrington’s plea of not guilty, see Bradshaw v. State, 296

Ga. 650, 656 (3) (769 SE2d 892) (2015), the intent of the perpetrators of these crimes

was not reasonably susceptible of dispute; Arrington did not claim that the

perpetrators did not intend to commit the crimes or that the crimes resulted from an

accident or mistake. Rather, Arrington contended that he was not one of the

perpetrators. So the state’s need to introduce the other acts evidence to prove intent

was minimal.

And the other acts occurred more than 23 years before the instant crimes.

Unlike the other acts, the crimes here required inside knowledge of how the business

operated and coordination between two or more people. The only similarities between

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the instant crimes and the other acts were the use of a gun to take money. The other

acts were temporally remote and they were not factually similar.

The other acts “were not relevant to the ultimate issue in the case — i.e., [who

committed the crimes]. Instead, the other acts evidence primarily established one

thing — [Arrington’s] propensity” to commit armed robbery. Brown, 303 Ga. at 164

(2). In light of the state’s lack of need, the temporal remoteness, and the lack of

similarity, “the probative value of the other acts evidence was extremely low at best,”

Brown, 303 Ga. at 162 (2), and the trial court erred by admitting the 1989 convictions

as Rule 404 (b) evidence to show Arrington’s intent. Compare Logan-Goodlaw v.

State, 331 Ga. App. 671, 675 (2) (770 SE2d 899) (2015) (physical precedent only)

(defendant’s theory that he was present during underlying armed robbery but did not

participate in robbing victim squarely challenged issue of his intent, making the

admission of a prior armed robbery relevant under Rule 404 (b)).

Because the admission of the 404 (b) evidence was erroneous,

we must review the record de novo to determine whether the trial court’s
error was harmless. The test for determining nonconstitutional harmless
error is whether it is highly probable that the error did not contribute to
the verdict. In doing so, we weigh the evidence as we would expect
reasonable jurors to have done so, as opposed to assuming that they took
the most pro-guilt possible view of every bit of evidence in the case.

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Brown, 303 Ga. at 164 (2) (citations and punctuation omitted).

Here, the evidence of Arrington’s guilt is not overwhelming. As the trial court

noted, the case against Arrington was entirely circumstantial. No eyewitness

identified Arrington as a perpetrator. The only physical evidence linking Arrington

to the crime was the presence of his cell phone in the van.“In light of the entirety of

the evidence presented at trial, we cannot say that it is highly probable that the error

did not contribute to the verdict. Accordingly, we [should] reverse [Arrington’s]

convictions.” Brown, 303 Ga. at 165 (2).

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