In the Supreme Court of Georgia
Decided: September 21, 2021
S21A0807. JOHNSON v. THE STATE.
NAHMIAS, Chief Justice.
Appellant Raphael Johnson was convicted of the malice
murder of Frederick Burke, the felony murder of James Cornelius,
and other crimes in connection with a shooting incident at a
“gambling house” on August 13, 2013, and the aggravated battery of
Ahmed Rayner in connection with another shooting at a restaurant
a week later. In his appeal to this Court, Appellant contends that
the evidence presented at his trial was legally insufficient to support
his convictions for the aggravated battery of Rayner, that the trial
court’s jury instruction on aggravated assault constituted plain
error, and that the trial court abused its discretion by concluding
that evidence of another shooting incident that occurred a few hours
before the gambling house shootings was admissible as intrinsic
evidence. As explained below, we reject these contentions and affirm
Appellant’s convictions, except for his conviction for possession of a
firearm during the commission of a felony, which we vacate to
correct a merger error. 1
1 The crimes occurred on August 13 and 20, 2013. In November 2013, a
Fulton County grand jury indicted Appellant for the following crimes in
connection with the August 13 shooting incident: malice murder of Burke,
three counts of felony murder of Burke, aggravated assault of Burke, felony
murder of Cornelius (based on the aggravated assault of Burke), armed
robbery of Bryan Cornelius, aggravated battery of Bryan, aggravated assault
of Bryan, possession of a firearm during the commission of a felony, possession
of a firearm by a convicted felon, and use of a firearm by a convicted felon
during the commission of a felony. In connection with the shooting on August
20, Appellant was indicted for two counts of aggravated battery of Rayner (one
by seriously disfiguring his buttock and one by seriously disfiguring his thigh),
attempted armed robbery, aggravated assault, possession of a firearm during
the commission of a felony, possession of a firearm by a convicted felon, and
use of a firearm by a convicted felon during the commission of a felony.
Appellant was also indicted for one count of participating in criminal street
gang activity between August 13 and 20.
The trial court later bifurcated the counts of possession and use of a
firearm by a convicted felon related to the August 20 shooting, and on March
10, 2016, the first day of Appellant’s trial, the court nolle prossed the attempted
armed robbery count. On March 18, 2016, the jury found Appellant guilty of
the remaining counts. The trial court sentenced him as a recidivist to serve
three consecutive sentences of life in prison without the possibility of parole for
the malice murder of Burke, felony murder of Cornelius, and armed robbery of
Bryan; 20 consecutive years for the aggravated battery of Bryan; five
consecutive years for the count of possession of a firearm during the
commission of a felony related to the August 13 shootings; 15 consecutive years
on probation for the count of use of a firearm by a convicted felon during the
commission of a felony related to the August 13 shootings; 20 consecutive years
for each of the counts of aggravated battery of Rayner; five consecutive years
2
1. The evidence presented at Appellant’s trial showed the
following.
(a) The Gambling House Shootings.
In August 2013, James Cornelius operated an illegal “gambling
house” where people met to play high-stakes card games and use
gambling machines in a building on Lee Street in Atlanta. On the
night of August 12, Cornelius’s grandson Bryan Cornelius (“Bryan”)
and his friend Frederick Burke were working at the gambling house.
At trial, Bryan testified as follows. Late that night, Quinton
Porter, who frequented the gambling house and whom Bryan knew
only as “Big Boo,” walked outside to the parking lot, where he spoke
with some men who had arrived in a silver Ford Taurus. Three of
on probation for the count of possession of a firearm during the commission of
a felony related to the August 20 shooting; and 15 consecutive years for the
gang-activity count. The remaining felony murder counts were vacated by
operation of law; the counts of aggravated assault of Burke, Bryan, and Rayner
and the remaining count of possession of a firearm by a convicted felon merged;
and the court nolle prossed the bifurcated firearm counts.
Appellant filed a timely motion for new trial, which he amended through
new counsel in June 2019. After Appellant waived a hearing on the motion, the
trial court denied it in January 2021. Appellant then filed a timely notice of
appeal, and his case was docketed to the April 2021 term of this Court and
orally argued on June 8, 2021.
3
the men in the Taurus came to the door of the gambling house.
Burke assumed that the men were with Big Boo, let them in, and
then went outside. Bryan was inside. A few minutes later, one of the
men pulled out “a gun,” pointed it at Bryan, and said “You already
know what this is. Get on the ground.” Bryan ran toward the
assailant, slamming him against the door, and the assailant started
shooting. As Bryan pulled out his own gun, he was shot, and he fell
to the ground. The assailant pointed his gun at Bryan’s head and
said, “Let it go, let it go right now or I will kill you.” Bryan dropped
his gun. Burke then opened the door, and the assailant shot Burke
several times. The assailant took Bryan’s gun; Bryan heard him and
the other two men go toward the back of the building. A short time
later, the three men stepped over Bryan as they left the building and
fled in the Taurus. Bryan then saw Cornelius, who was near the
back of the building, grab his chest and fall to the floor. Someone at
the gambling house called 911.2
2During the 911 call, which was audio recorded and played for the jury,
Bryan described the shooter as “tall,” about 5’9” or 5’10”. He later told a
4
Burke, Cornelius, and Bryan were taken to a hospital. Burke
and Cornelius died several days later. Burke’s autopsy showed that
he was shot multiple times and died from complications of gunshot
wounds to his torso; no bullets were recovered from his body.
Cornelius’s autopsy showed that he died from a heart attack caused
by the stressful criminal event. Bryan was shot at least four times;
he ultimately recovered, although it was nearly two years before he
could walk again. A .45-caliber bullet was removed from Bryan’s
body while he was being treated at the hospital. A crime scene
investigator found a .45-caliber bullet, two .45-caliber shell casings,
and two .40-caliber shell casings at the gambling house.
In the days after the shootings, Bryan’s father showed Bryan
two photos on the father’s cell phone and asked if Bryan recognized
responding officer that one of the assailants was about 6’0” tall and weighed
about 140 pounds; he described another assailant as about 5’8” tall.
Two witnesses who were near the back of the gambling house testified
that they heard gunshots but did not see the shootings. One of those witnesses
testified that two armed assailants then demanded and took money, keys, and
pants from some of the other gamblers and left. That witness also testified that
the two assailants he saw were tall, thin men; the other witness testified that
one of the assailants was “slim.” The jury saw Appellant in the courtroom; an
August 2013 jail booking report in the record but not presented in evidence
says that Appellant is 6’4” tall and weighed 210 pounds.
5
anyone. Bryan identified one of the men in the photos as the shooter.
During an interview on August 18, Bryan showed a detective the
photos, and the detective later determined that the man whom
Bryan identified was Appellant. The next day, the detective showed
Bryan a photo lineup, and Bryan identified Appellant as the shooter.
Bryan repeated that identification at trial.
Another investigator obtained video recordings from
surveillance cameras in the parking lot outside the gambling house.
The recordings, which the prosecutor accurately described in her
opening statement as “grainy,” were played during the trial, and
Bryan testified about them. The recordings show the following. At
11:13 p.m., a silver Taurus parked near the gambling house, and a
tall man, whom Bryan identified at trial as Appellant, got out.3 At
least three other men were in the car. Porter and others came
outside the gambling house and talked with Appellant for about 30
minutes. At 11:48, Appellant got back in the Taurus, while Porter
3The prosecutor also showed the surveillance video recordings to another
witness who was in the parking lot that night. The witness testified that he
“believe[d]” that the tall man shown on the recordings was Appellant.
6
and another man got in a nearby SUV. At 12:03 a.m., Appellant and
two other men got out of the Taurus and walked toward the
gambling house. At 12:07, the SUV drove away. At 12:08, Appellant,
who was carrying clothing, and the two other men ran back to the
Taurus, jumped in, and sped away.
(b) The Restaurant Shooting.
Shortly after 10:00 p.m. on August 20, a week after the
shootings at the gambling house, Ahmed Rayner was shot multiple
times as he left a restaurant on Peachtree Road in Atlanta. A
detective obtained video recordings from the surveillance cameras
at the restaurant; the recordings were later played for the jury. The
video recordings show the following. At 9:28 p.m., two Dodge
Chargers pulled into the restaurant parking lot and parked, one
behind the other. A tall man, whom a hostess at the restaurant later
identified in a photo lineup and at trial as Appellant, and a shorter
man got out of the first Charger and went into the restaurant. About
15 minutes later, the shorter man went back to the first Charger;
sat in the passenger seat for a moment; walked toward the other
7
Charger, which was partially out of view of the surveillance
cameras; and then returned to the restaurant. Appellant and the
shorter man eventually were seated a few tables away from Rayner,
who was dining with several other people. At 10:07 p.m., some
members of Rayner’s party stood up, as if preparing to leave, and
about a minute later, Appellant appeared to be talking on his cell
phone. At 10:10 p.m., Rayner and his companions exited the
restaurant.
Moments later, the second Charger pulled up near the exit, and
a man got out of the passenger seat pointing a handgun. Rayner ran
back into the restaurant, with the assailant following and shooting.
The assailant ran out of the restaurant seconds later and fled in the
Charger. Rayner then limped into the dining area, where he fell to
the floor. Appellant, who had ducked under a table when the
shooting began, appeared to be talking on his cell phone while
several bystanders attended to Rayner. The shorter man then went
outside and got into the remaining Charger. Appellant exited the
restaurant about seven minutes after the shooting. In the parking
8
lot, several members of Rayner’s party appeared to speak to
Appellant. They then chased him before he got in the Charger, which
sped away.
Two responding police officers testified that Rayner had been
shot and was taken to a hospital. A crime scene investigator found
two .45-caliber shell casings inside the restaurant. Crime scene
photographs showed that there were bloodstains on the ground near
the entrance to the restaurant and on the carpet in the dining area.
The State also introduced into evidence Rayner’s medical records,
which showed that he suffered gunshot wounds to his right thigh,
left buttock, and left thigh. 4
(c) Appellant’s Arrest.
4 The medical records also showed the following: Rayner was transported
in an ambulance to the hospital, where his condition was designated “Trauma:
Level 1”; he reported “acute pain,” had “moderate” to “mild” bleeding, and was
unable to lie on his back due to the gunshot wounds; x-rays showed that there
were bullet fragments embedded near the gunshot wounds; he “denied
paresthesias or loss of movement” and there was no evidence of “compartment
syndrome or vascular compromise”; and on the day after the shooting, he was
discharged from the hospital in a wheelchair with a prescription for the
painkiller oxycodone. Rayner did not testify at trial. The prosecutor told the
trial court outside the presence of the jury that Rayner lived in Ohio and
refused to return to Georgia to testify.
9
Six days after the restaurant shooting, on August 26, police
officers arrested Appellant, who was a convicted felon, in a park,
where he was hanging out with Latavious Hunter. Hunter was also
arrested after he pointed his .45-caliber handgun at the officers.
Appellant was interviewed in connection with the gambling
house shootings later that day; the interview was audio and video
recorded, and the recording was played for the jury. During the
interview, Appellant claimed that he arrived at the gambling house
in a gray Nissan Altima around 10:00 p.m. on the night of the
shootings; he asked his friend Big Boo (Porter) for $20 so that he
could go to a club; and after a few minutes, he left. Appellant denied
being a member of a gang or participating in the robbery and
shootings, and he told investigators that he had heard that his
cousin and two other men committed the crimes.
Ten days later, a detective interviewed Porter, who claimed
that his friend “Ralph,” whom he identified in a photo lineup as
Appellant, came to the gambling house parking lot on the night of
the shootings; that he gave Appellant $20 and then left the gambling
10
house; and that he was not involved in planning the robbery. Porter
also testified at trial, claiming that he did not remember being at
the gambling house on the night of the shootings or being
interviewed by the detective.
(d) The Boulevard Place Shootings.
The State also presented evidence that around 8:30 p.m. on
August 12, about three-and-a-half hours before the gambling house
shootings, another shooting incident occurred on Boulevard Place in
Atlanta. A responding police officer testified that Travis Montford
and another man were shot. Neither of the victims could identify
who had shot them, but a woman at the scene called out to the
officer, “It was a silver Ford Taurus.” A crime scene investigator
testified that he collected a 9mm shell casing, five 7.62-caliber shell
casings, three .40-caliber shell casings, seven .45-caliber shell
casings, and a .45-caliber bullet.
(e) Additional Evidence at Trial.
A firearms examiner testified that the .40-caliber shell casings
found at the crime scene on Boulevard Place were fired from the
11
same gun as the .40-caliber shell casings found at the gambling
house. There were also at least two .45-caliber handguns used in the
Boulevard Place shooting. Three of the seven .45-caliber shell
casings found at that scene were fired from the same gun as both
.45-caliber shell casings found at the gambling house. The .45-
caliber bullet found at the Boulevard Place scene was fired from the
same gun that fired the .45-caliber bullet found at the gambling
house and the .45-caliber bullet that was removed from Bryan’s
body. None of the shell casings or bullets found in connection with
the gambling house shootings was fired from the .45-caliber
handgun found on Hunter when he was arrested with Appellant.
However, the remaining four .45-caliber shell casings found at the
Boulevard Place scene and the two .45-caliber shell casings found at
the restaurant were fired from the .45-caliber gun later found on
Hunter.
The State’s gang expert testified that Appellant and Hunter
were members of the Atlanta Blood Gang (“ABG”), an affiliate of the
Bloods gang; that Porter was also affiliated with the Bloods gang;
12
and that Montford (one of the victims in the Boulevard Place
shootings) was a member of the rival Crips gang. To prove
Appellant’s membership in ABG, the State also presented evidence
of two rap music videos that promoted songs referencing ABG, which
featured Appellant and other ABG members; still images from the
videos showing Appellant wearing a shirt with “ABG” on it; and the
gang expert’s testimony that Appellant had “ABG” tattooed on his
arm. Bryan testified that he was not a gang member and did not
know Appellant, and the State presented no evidence that Rayner
was associated with a gang or knew Appellant. However, the gang
expert testified that gang members often “work” for the gang by
committing armed robberies and shootings and that the incidents at
the gambling house and restaurant were related to gang activity.
Appellant did not testify. His theory of defense was that
Bryan’s descriptions of the shooter at the gambling house did not
match Appellant; that the evidence did not show that Appellant
planned or participated in the restaurant shooting; and that the case
13
was not adequately investigated.5
2. OCGA § 16-5-24 (a) says, in pertinent part, that “[a] person
commits the offense of aggravated battery when he or she
maliciously causes bodily harm to another by . . . seriously
disfiguring his or her body or a member thereof.” Appellant was
indicted for two counts of aggravated battery for “maliciously
caus[ing] bodily harm to . . . Rayner by seriously disfiguring his
[buttock (Count 13) and thigh (Count 14)] . . . by shooting him with
a handgun,” and the jury found him guilty of both counts. Appellant
now contends that the evidence presented at his trial was legally
insufficient to support those convictions because the State failed to
prove that Rayner was “seriously disfigure[ed].” We disagree.6
As a matter of due process under the Fourteenth Amendment
to the United States Constitution, we evaluate the sufficiency of
5 The record does not indicate if any of the other assailants in the
Boulevard Place, gambling house, or restaurant shootings were ever identified
or prosecuted.
6 We note that Appellant does not dispute that the evidence was legally
sufficient for the jury to find him guilty as a party to the attack on Rayner by
the unidentified gunman, see OCGA § 16-2-20 (a) (defining parties to a crime),
nor that that the evidence was sufficient to support his other convictions.
14
evidence by determining whether a rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). “In
conducting that evaluation, ‘[i]t is not the job of this Court to weigh
the evidence on appeal or resolve conflicts in trial testimony but
rather to examine the evidence in the light most favorable to the
verdict[.]’” Byers v. State, 311 Ga. 259, 266 (857 SE2d 447) (2021)
(citation omitted).
This Court has explained that,
[a]lthough the Criminal Code does not define “seriously
disfiguring” as used in the aggravated battery statute, see
OCGA § 16-5-19, that term generally has been construed
as meaning “gravely or greatly impairing or injuring the
appearance of a member of a victim’s body, even if only
temporarily.” “Aggravated battery predicated upon
serious disfigurement, whether temporary or permanent,
requires proof that the injury inflicted was more than a
superficial wound, that is, a scrape, bruise, discoloration,
or swelling.” “Inasmuch as the circumstances inevitably
vary in each case of aggravated battery, whether
disfigurement is serious is best resolved by the factfinder
on a case-by-case basis and is almost always a question
for the jury.”
Id. (citations omitted). When viewed in the light most favorable to
the verdicts, the evidence presented at Appellant’s trial – including
15
the surveillance video and photos from the restaurant, testimony
from the responding officers, and Rayner’s medical records – showed
that after the assailant shot Rayner in his buttock and thighs, he
bled on the restaurant’s entrance and carpet as he limped back into
the restaurant and fell to the floor. He was then taken by ambulance
to a hospital, where he reported acute pain and was still bleeding.
X-rays showed bullet fragments embedded near the gunshot
wounds, and Rayner could not lie on his back due to the wounds. He
was discharged from the hospital in a wheelchair with a prescription
for a painkiller.
This evidence authorized a rational jury to infer that Rayner
suffered disfigurement that was serious, not merely superficial. See
id. (concluding that evidence that the victim “bled from the head so
profusely that there was blood on the couch, floor, and wall
authorized the jury to infer that [he] in fact suffered disfigurement
[from a visible head wound] that was not merely superficial, but
serious” under OCGA § 16-5-24 (a)). Compare Williams v. State, 248
Ga. App. 316, 317-319 (546 SE2d 74) (2001) (reversing the
16
defendant’s aggravated battery conviction because there was
insufficient evidence that the victim was seriously disfigured by the
defendant’s attack, which left bruises and scratches on her face,
where there was no evidence that she was bleeding, received any
medical treatment after the attack, or was scarred).
Appellant asserts that the State should have introduced
testimony about Rayner’s medical treatment as well as photos and
x-rays of his injuries to prove that he was seriously disfigured. But
as we have explained many times before, “[a]lthough the State is
required to prove its case with competent evidence, there is no
requirement that it prove its case with any particular sort of
evidence[.]” Howell v. State, 307 Ga. 865, 872 (838 SE2d 839) (2020)
(citation and punctuation omitted). This enumeration of error is
meritless.
3. Appellant next contends that the trial court committed plain
error when it instructed the jury on aggravated assault and that his
convictions for aggravated assault and felony murder based on that
offense should therefore be reversed. As an initial matter,
17
Appellant’s claim that his aggravated assault “convictions” should
be reversed is moot. Appellant was not convicted of or sentenced for
aggravated assault, because those counts all merged. See footnote 1
above; Solomon v. State, 304 Ga. 846, 849 (823 SE2d 265) (2019).
And as to his felony murder conviction, Appellant has not carried
his burden of establishing plain error, because he has not shown that
any alleged error in the aggravated assault instruction likely
affected the outcome of his trial.
Appellant was indicted for the felony murder of Cornelius
based on the count of aggravated assault with a deadly weapon
which alleged that Appellant “did unlawfully commit an assault
upon the person of Frederick Burke, by shooting him with a
handgun, the same being a deadly weapon.” See OCGA § 16-5-21 (a)
(2) (“A person commits the offense of aggravated assault when he or
she assaults . . . [w]ith a deadly weapon[.]”).7 The State asked the
trial court to give the pattern jury instruction defining aggravated
7 As discussed above, Cornelius’s autopsy showed that he died from a
heart attack caused by witnessing the attack at the gambling house.
18
assault with a deadly weapon, which says (in pertinent part and
with parentheses omitted):
A person commits the offense of aggravated assault when
that person assaults another person with a deadly
weapon . . . .
To constitute such an assault, actual injury to the alleged
victim need not be shown. It is only necessary that the
evidence show beyond a reasonable doubt that the
defendant attempted to cause a violent injury to the
alleged victim . . . .
The State must also prove as a material element of
aggravated assault, as alleged in this case, that the
assault was made with a deadly weapon . . . .
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases §
2.20.21 (4th ed. 2007). During the charge conference, the trial court
said that it would give the pattern instruction. During the final
charge, however, just after the court instructed the jury on the
definition of armed robbery, the court read the jury the second and
third paragraphs of this pattern instruction but omitted the first
paragraph.
As Appellant acknowledges, he failed to object to this omission,
so our review of his claim is limited to plain error. See OCGA § 17-
19
8-58 (b); Knighton v. State, 310 Ga. 586, 591 (853 SE2d 89) (2020).
To establish plain error, Appellant must show that
the alleged instructional error was not affirmatively
waived; was clear and obvious, rather than subject to
reasonable dispute; likely affected the outcome of the
trial; and seriously affected the fairness, integrity, or
public reputation of judicial proceedings. An appellant
must establish all four elements of the test in order to
demonstrate plain error, so satisfying this test is difficult,
as it should be.
Knighton, 310 Ga. at 591 (citations and punctuation omitted).
Assuming without deciding that the trial court’s omission of
the first paragraph of the pattern instruction was a clear and
obvious error, Appellant has not shown that it likely affected the
outcome of his trial. As we have often explained, “[w]e do not
evaluate jury charges in isolation, but rather consider them as a
whole to determine whether there is a reasonable likelihood the jury
improperly applied a challenged instruction.” Walker v. State, ___
Ga. ___, ___ (859 SE2d 25, 31) (2021) (citation and punctuation
omitted). At the beginning of the final charge, the trial court read
the indictment to the jury, including the count of “aggravated
assault with a deadly weapon” alleging that Appellant “commit[ted]
20
an assault” on Burke “by shooting him with a handgun, the same
being a deadly weapon.” The court later read the second and third
paragraphs of the pattern instruction defining aggravated assault,
which informed the jury that the State was required to prove that
Appellant assaulted Burke by attempting to cause him a violent
injury and that the assault must have been made with a deadly
weapon in order to constitute an aggravated assault. The court also
instructed that a firearm, when used as such, is a deadly weapon as
a matter of law, and fully instructed the jury on the crime of felony
murder. Moreover, the court instructed the jury during the
preliminary and the final charge that the State was required to
prove every material allegation of the indictment and every
essential element of the crimes charged beyond a reasonable doubt,
and the jury was provided copies of the indictment and the final
charge during its deliberations.
Considering the instructions as a whole, the jury was
adequately informed that a defendant commits aggravated assault
when he assaults another person with a deadly weapon. And the
21
evidence that Burke was shot (and killed) with a handgun was
overwhelming and undisputed by Appellant; his defense was instead
that he was not involved in that crime. Thus, Appellant has not
shown that the trial court’s omission of the first paragraph of the
pattern instruction amounted to plain error. See Anderson v. State,
309 Ga. 618, 622-624 (847 SE2d 572) (2020) (holding that the
appellant did not show that the trial court’s failure to give a separate
instruction to the jury on the elements of possession of a firearm
during the commission of a felony likely affected the outcome of his
trial under the third part of the plain error test, in part because the
court read to the jury the indictment, which was also sent out with
the jury during its deliberations, and instructed that the State was
required to prove every material allegation of the indictment and
every essential element of the crimes charged beyond a reasonable
doubt). See also Neder v. United States, 527 U.S. 1, 17 (119 SCt 1827,
144 LE2d 35) (1999) (“[W]here a reviewing court concludes beyond
a reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict
22
would have been the same absent the error, the erroneous
instruction is properly found to be harmless.”); United States v.
Abovyan, 988 F3d 1288, 1306-1308 (11th Cir. 2021) (concluding that
the trial court’s failure to instruct the jury on the elements of
healthcare fraud, where the defendant was charged with conspiracy
to commit healthcare fraud, did not amount to plain error, because
the trial court referred to and the jury was given a copy of the
indictment, which tracked the elements of healthcare fraud, the
court instructed on the elements of conspiracy, and there was no
dispute that healthcare fraud did occur).
4. Finally, Appellant argues that the trial court abused its
discretion by ruling that evidence related to the shootings on
Boulevard Place was admissible as intrinsic evidence. We can
assume without deciding that Appellant preserved this claim for
ordinary appellate review, because he has not shown that the trial
court’s ruling was an abuse of discretion. See Harris v. State, 310
Ga. 372, 377 (850 SE2d 77) (2020) (explaining that when the
defendant objected at trial to the admission of evidence as intrinsic,
23
the trial court’s ruling is reviewed on appeal for abuse of discretion).
Evidence is admissible as “intrinsic” evidence “‘when it is (1)
an uncharged offense arising from the same transaction or series of
transactions as the charged offense; (2) necessary to complete the
story of the crime; or (3) inextricably intertwined with the evidence
regarding the charged offense.’” Smith v. State, 307 Ga. 263, 271
(834 SE2d 1) (2019) (citation omitted). In applying this test, we have
explained that “‘[e]vidence pertaining to the chain of events
explaining the context, motive, and set-up of the crime[] is properly
admitted if it is linked in time and circumstances with the charged
crime.’” Id. (citation omitted). In addition, intrinsic evidence must
satisfy OCGA § 24-4-403 (“Rule 403”), which says in pertinent part
that “[r]elevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”
However, “[t]he exclusion of relevant evidence under Rule 403 is an
extraordinary remedy that trial courts should grant only sparingly.”
Smith, 307 Ga. at 273.
In this case, Appellant was charged with participating in
24
criminal street gang activity, and the State’s theory was that he was
involved in the gambling house shootings (with Bloods gang affiliate
Porter and several unidentified assailants) and the restaurant
shooting (with several unidentified assailants) as part of his “work”
for the Bloods-affiliated gang ABG. The evidence related to the
Boulevard Place shootings added significant weight to that theory,
because that evidence was linked in time and circumstances with
the charged crimes and one victim was a member of a rival gang.
Most significantly, the ballistics evidence from the Boulevard Place
crime scene linked the gambling house and restaurant shootings to
each other and to the ABG gang. The .40-caliber and .45-caliber
handguns used during the gambling house shootings were also used
in the Boulevard Place shootings, as was the .45-caliber handgun
used during the restaurant shooting, which another ABG member
(Hunter) was carrying when he and Appellant were arrested
together less than a week after the restaurant shooting. In addition,
the Boulevard Place shootings occurred just a few hours before the
gambling house shootings and about a week before the restaurant
25
shooting. The Boulevard Place, gambling house, and restaurant
incidents each involved multiple assailants working together to
shoot the victims; the assailants used a silver Ford Taurus during
both the Boulevard Place and gambling house shootings; and the
gang expert’s testimony indicated that the three incidents were
related to ABG’s gang activity.
Thus, even though the State did not charge Appellant in
connection with the Boulevard Place shootings, evidence of that
incident was relevant to disputed issues in the case. See OCGA § 24-
4-401 (“‘[R]elevant evidence’ means evidence having 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.”); Anglin v. State, 302 Ga. 333, 337
(806 SE2d 573) (2017) (explaining that evidence of the appellant’s
gang membership was relevant to his motive to commit the charged
crimes); United States v. Hill, 518 Fed. Appx. 744, 748 (11th Cir.
2013) (rejecting the appellant’s argument that intrinsic evidence
was not relevant because it did not establish that he was involved in
26
a drive-by shooting of the house of a confidential informant who
provided information about the drug trade, where the evidence
showed that the shooting occurred six days after the police
discovered the appellant with drugs and the appellant’s phone was
used to make a threatening call to the informant about an hour
before the shooting). And because the Boulevard Place evidence
pertained to the chain of events in this case by connecting the
gambling house and restaurant incidents to each other and to
Appellant and by indicating that these incidents were related to the
ABG gang, the evidence was reasonably necessary to complete the
story of the crimes for the jury and therefore intrinsic to the crimes
charged. See, e.g., Smith, 307 Ga. at 272-273 (concluding that a
witness’s statements about the appellants’ sale and use of drugs
were admissible as evidence intrinsic to the charged offenses of
murder and related crimes because they were reasonably necessary
to complete the story of the crimes, where the statements advanced
the State’s theory of the case that the charged offenses were a
culmination of drug-related robberies); Fleming v. State, 306 Ga.
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240, 245 (830 SE2d 129) (2019) (holding that evidence of the
appellant’s gang affiliation was admissible as evidence intrinsic to
the charged offenses of murder and other crimes because it
completed the story of the crimes and enabled the State to explain
his association with the shooters and his role in the crimes).
Turning to the analysis under Rule 403, the evidence of the
Boulevard Place incident had significant probative value. See Olds
v. State, 299 Ga. 65, 75 (786 SE2d 633) (2016) (explaining that the
probative value of evidence depends in part on whether the fact it is
offered to prove is disputed and on its marginal worth in proving
that fact in comparison to other available proof). The State needed
evidence to show the connection between Appellant, his gang
membership, and the charged crimes. Only one eyewitness (Bryan)
identified Appellant as a shooter at the gambling house, and
Appellant argued at trial that the identification was not credible;
Porter recanted his police interview statement that Appellant was
at the gambling house that night; and another witness testified that
he merely “believe[d]” that Appellant was the tall man shown on the
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parking lot surveillance recordings. The evidence that Appellant
was involved in the restaurant shooting was entirely circumstantial.
And the only evidence that the gambling house and restaurant
incidents were committed to benefit the gang was the gang expert’s
rather conclusory testimony. Although the State presented evidence
that Appellant was a member of ABG, during his police interview,
he denied being in a gang and denied any involvement in the
gambling house shootings. Beyond linking the guns used in the
gambling house and restaurant shootings, the evidence of the
Boulevard Place shootings (which had a more obvious gang-related
motive) tended to prove Appellant’s motive and helped the State
explain why Appellant committed crimes with groups of
unidentified assailants against victims to whom he had no apparent
connection.
The evidence of the Boulevard Place incident was also
prejudicial, as is all inculpatory evidence, but in light of its
significant probative value, it was not a “‘matter of scant or
cumulative probative force, dragged in by the heels for the sake of
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its prejudicial effect.’” Smith, 307 Ga. at 273 (citation omitted). See
also Heade v. State, ___ Ga. ___, ___ (860 SE2d 509, 517) (2021)
(“‘[I]n a criminal trial, inculpatory evidence is inherently prejudicial;
it is only when unfair prejudice substantially outweighs probative
value that [Rule 403] permits exclusion.’” (quoting Anglin, 302 Ga.
at 337; emphasis in original)). Moreover, the prejudicial effect of the
Boulevard Place evidence was mitigated by the trial court’s
instruction limiting the jury’s consideration of the evidence.
Although the Boulevard Place evidence was intrinsic to all of the
crimes charged, the trial court instructed the jury before the
evidence was presented and again during the final charge that the
evidence could be considered only to prove the count of participating
in criminal street gang activity and not for any other purpose. See
Heade, 860 SE2d 509, 516 (explaining that the trial court’s
instruction limiting the jury’s consideration of intrinsic evidence
“reduced the prejudicial impact” of the evidence). Any prejudicial
effect also was reduced by the prosecutor’s acknowledgment during
her opening statement that the State would not prove that
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Appellant was present during the Boulevard Place incident. For
these reasons, we see no abuse of discretion in the trial court’s
implicit conclusion that the probative value of the Boulevard Place
evidence was not substantially outweighed by its prejudicial effect.
Because the trial court did not abuse its discretion in admitting
the Boulevard Place evidence, Appellant’s claim fails. See, e.g.,
Smith, 307 Ga. at 273; Fleming, 306 Ga. at 245.
5. Although Appellant has not raised in this Court any issue
about his sentencing, we have noticed that the trial court clearly
erred by failing to merge the count of possession of a firearm during
the commission of a felony related to the gambling house shootings
(Count 11) with his conviction on the count charging use of a firearm
by a convicted felon during the commission of a felony, which was
also related to the gambling house shootings (Count 17). See
Atkinson v. State, 301 Ga. 518, 521 (801 SE2d 833) (2017). We
therefore vacate Appellant’s conviction and sentence on Count 11.
See id. See also Dixon v. State, 302 Ga. 691, 696 (808 SE2d 696)
(2017) (discussing this Court’s discretion to correct obvious merger
31
errors on direct appeal).
Judgment affirmed in part and vacated in part. All the Justices
concur, except LaGrua, J., disqualified.
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