In the Supreme Court of Georgia



                                     Decided: July 8, 2016


                    S15G1207. THE STATE v. ASHLEY.


      NAHMIAS, Justice.

      In 2012, Thad Lee Ashley was convicted of kidnapping a seven-year-old

girl, attempting to kidnap her three-year-old sister, and criminal trespass at the

trailer park where his father lived. At trial, the jury heard evidence of these

crimes as well as evidence of three earlier incidents at the trailer park’s pool

when Ashley had behaved inappropriately towards young children. The trial

court admitted the evidence of these other incidents as similar transaction

evidence under Georgia’s old Evidence Code, which applied at the time of

Ashley’s trial, for the purpose of showing his intent when he engaged in the acts

alleged in the indictment and his desires towards young children.

      Ashley appealed, contending among other things that the trial court abused

its discretion when it admitted the similar transaction evidence. In a 4-3

decision, the Court of Appeals agreed and reversed Ashley’s convictions on that
ground. See Ashley v. State, 331 Ga. App. 794, 794 (771 SE2d 462) (2015).

This Court granted the State’s petition for certiorari to consider whether the

Court of Appeals erred in that respect. We conclude that it did, so we reverse

that portion of the Court of Appeals’ judgment and remand the case with

direction to consider Ashley’s other challenges to his convictions.

      1.    (a)   Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. On July 3, 2011, Ashley, who was then

37 years old, was served with a criminal trespass warning prohibiting him from

returning to the trailer park in Douglas County where his father lived. Despite

the warning, Ashley continued to live with his father, who had a forest green

minivan.

      Two months later, on Sunday, September 4, 2011, a woman who lived in

the trailer park on a different street than Ashley’s father was preparing to take

her four daughters, ages seven and under, and her infant nephew to church in her

maroon minivan. The woman was on her front porch, locking the door while

holding one of the girls, and seven-year-old K.L. was sitting on the floor of the

minivan with the sliding door on the driver’s side open after helping her three-

year-old sister B.L. and the other children into their seats. Ashley walked up to

                                       2
the minivan, reached inside, grabbed K.L. by the wrist, pulled her out of the

minivan, and began dragging her up the street as she screamed and tried to get

away. K.L. managed to break free from Ashley and ran to her mother, shaking

and crying. The woman yelled at Ashley and saw him “touching himself” as he

reached into her minivan a second time and tried to grab B.L., who scrambled

away from him. The woman threatened to call the police, and Ashley walked

off in the direction of his father’s trailer, claiming that he had been confused.

Ashley told his father, “I think I just did something wrong.” His father asked

him what he meant, and Ashley said, “I tried to get them kids out of that van,”

which he claimed he mistook for his father’s minivan.

      A sheriff’s deputy responded to the scene and spoke with K.L., her

mother, and the property manager’s brother before talking to Ashley at his

father’s trailer. Ashley claimed that he knew one of the girls in the minivan and

thought the children were in his father’s minivan. Ashley denied touching any

of the children, claiming instead that he merely got into the minivan with them

and sat in the driver’s seat. Ashley also claimed that he did not drink or use

drugs. The deputy arrested Ashley for criminal trespass.

      Later that day and in the days following, Ashley gave three videotaped

                                       3
interviews after waiving his Miranda rights. In the first interview, he claimed

that he saw a woman driving what he thought was his father’s minivan. He said

there were several children in the minivan and that he sat in the minivan and

chatted and played with them. He also said that when he was getting ready to

leave, a little girl stepped out of the minivan, and he grabbed her by the arm to

keep her from falling.

      In the second interview, Ashley denied getting into the minivan and said

that he had “absolutely not” touched any of the children. He acknowledged that

the minivan that the children were in and his father’s minivan were different

colors, that he was not color-blind, and that his father’s minivan did not have a

specific braided trim that the minivan that the children were in had.

      In the final interview, Ashley said that he was a former heroin addict but

had not used heroin in the previous nine months. He claimed that on the

morning of the minivan incident, which was a Sunday, he had gone to a

methadone clinic. (The methadone clinic actually was not open on Sundays.)

Ashley said that he took four Xanax pills in addition to the methadone and

claimed that as a result, he could not remember anything at all about the incident

with the children in the minivan. However, later in the interview, he said that

                                        4
he remembered seeing some children in the minivan whom he recognized from

the pool or from seeing them on the street and that he remembered the girls’

mother yelling at him from the porch and saying that she had called the police.

Ashley also claimed that he then waited there for law enforcement to arrive.

               (b)     On October 28, 2011, Ashley was indicted for the kidnapping

of K.L., the attempted kidnapping of B.L., entering an automobile with intent

to commit a felony, and criminal trespass after receiving notice that entry onto

the trailer park property was forbidden. On June 1, 2012, the State filed a notice

of intent to present similar transaction evidence regarding three incidents

involving Ashley at the trailer park pool during the summer of 2011: (1) an

occasion when the assistant property manager and another woman saw Ashley

staring inappropriately at young girls ranging in age from five to ten years old;

(2) Ashley’s repeated touching of a ten-year-old girl on her torso just below her

breasts when the girl’s mother went inside for a few minutes to use the

restroom1; and (3) an incident when the police were called after the assistant

property manager and other adults saw Ashley repeatedly squirting a five-year-


       1
         At trial, this girl testified that the touching made her sick to her stomach and that she told
Ashley to stop or she would hit him.

                                                  5
old boy with a powerful water gun so hard at close range that the boy was crying

and had red marks on his skin. It was these incidents that led the trailer park to

seek the trespass notice against Ashley.

       Ashley’s trial started on June 11, 2012, and thus was conducted under

Georgia’s old Evidence Code.2 At a hearing before opening statements, the trial

court ruled that evidence of the three pool incidents was admissible as similar

transaction evidence.3 The court found that the evidence was being offered for

the proper purpose of showing Ashley’s intent during the physical acts alleged

in the indictment and his desires directed towards young children, noting that

Ashley made his intent an issue by claiming in his interviews with law

enforcement and his arguments to the court that what happened on September

4, 2011, was a mistake or accident and that he was on drugs and thought that the

minivan with the children in it was his father’s minivan. The court also found

that the State proffered enough evidence for the jury to conclude that the

       2
          Our new Evidence Code applies to any motion made or hearing or trial commenced on or
after January 1, 2013. See Ga. L. 2011, p. 99, § 101.
       3
          See former OCGA § 24-2-2 (“The general character of the parties and especially their
conduct in other transactions are irrelevant matter unless the nature of the action involves such
character and renders necessary or proper the investigation of such conduct.”). Under the new
Evidence Code, the admission of “[e]vidence of other crimes, wrongs, or acts” is governed by
OCGA § 24-4-404 (b). See Humphrey v. Williams, 295 Ga. 536, 539 n.2 (761 SE2d 297) (2014).

                                               6
incidents at the pool occurred. Finally, the court found that the pool incidents,

which involved young children in the same trailer park just a few months before

September 2011, were sufficiently similar to the crimes charged that proof of

those incidents tended to prove the charges against Ashley.4

        At trial, Ashley testified on direct examination that he only vaguely

remembered the minivan incident, because when he had left his father’s trailer

a few minutes before, he “knew [he] was intoxicated, more so than [he] had ever

been.” Ashley repeatedly testified that he did not remember getting in the

minivan or touching the children and that he would have remembered it if he

had done so. He also claimed that he did not remember saying the things that

he told the investigating officers during the three recorded interviews, which had

been played for the jury. But Ashley also testified specifically on direct and

cross-examination about where he was going before the incident, the route he


        4
          Under the old Evidence Code, when offering similar transaction evidence, the State had
the burden to show that: (1) it sought to introduce the evidence “not to raise an improper inference
as to the accused’s character, but for some appropriate purpose which has been deemed to be an
exception to the general rule of inadmissibility”; (2) “there [was] sufficient evidence to establish that
the accused committed the independent offense or act”; and (3) “there [was] a sufficient connection
or similarity between the independent offense or act and the crime charged so that proof of the
former tends to prove the latter.” Williams v. State, 261 Ga. 640, 642 & n.3 (409 SE2d 649) (1991).
Before admitting such evidence, the trial court was required to make findings on the record as to
these three issues. See id. at 642 n.3.

                                                   7
took, the weather at the time, thinking that the maroon minivan with the children

in it was his father’s van rather than the same maroon minivan that he had seen

around the trailer park before, the scared look on the mother’s face when she

was yelling at him, the moment he noticed the color of the van and realized that

it was not his father’s van, his emotional response to this realization, what he

said to the girls’ mother, what K.L. was saying to her mother, and how quickly

K.L. calmed down. He also claimed to remember pointing towards his father’s

trailer to let the mother know where he would be when law enforcement arrived.

On cross-examination, Ashley asserted that the reason that he was barred from

the trailer park was because he upset the assistant property manager, who then

orchestrated all the complaints about his behavior at the pool. Ashley said that

as far as he was concerned, he had “not really offended anybody, except for the

little girls in the van, probably.”

      On June 14, 2012, the jury, which had been given instructions on the

charged offenses and on simple battery and simple assault as lesser included

offenses of kidnapping and attempted kidnapping, respectively, found Ashley

guilty of all the charged crimes. Four days later, the trial court sentenced Ashley

to serve life in prison for kidnapping, 30 consecutive years for attempted

                                        8
kidnapping, and 12 concurrent months for criminal trespass; the court merged

the count of entering an automobile with intent to commit a felony. On

February 14, 2014, the trial court denied Ashley’s motion for new trial.

               (c)     Ashley appealed, and the Court of Appeals reversed his

convictions in a divided decision.                    Division 1 of the court’s opinion

unanimously rejected Ashley’s challenges to the sufficiency of the evidence

supporting his convictions, including his claim that there was insufficient

evidence to prove that he had the criminal intent to kidnap either girl. See

Ashley, 331 Ga. App. at 794-797. In Division 2, four judges held that the trial

court abused its discretion in admitting the evidence of the pool incidents as

similar transaction evidence and that the error was not harmless, so Ashley’s

convictions had to be reversed. See id. at 797-800.5 Division 3 said that it was

unnecessary to address Ashley’s other claims of error in light of the rulings in

Division 2. Three judges dissented, explaining that they believed that the trial

       5
          In its order denying Ashley’s motion for new trial, the trial court ruled that the evidence
of the pool incidents was also admissible as directly relevant to the criminal trespass charge, because
it explained why Ashley had been banned from the trailer park and rebutted his explanation for the
trespass notice. The Court of Appeals majority ruled that the evidence was not admissible as part
of the res gestae of the kidnapping and attempted kidnapping charges – without mentioning the
criminal trespass charge. See Ashley, 331 Ga. App. at 799. Because we hold that the trial court did
not commit reversible error as a matter of similar transaction law, we need not address the res gestae
issue.

                                                  9
court acted within its discretion in admitting the evidence of Ashley’s behavior

towards children at the pool as similar transaction evidence under the old

Evidence Code. See id. at 800-801 (Ray, J., dissenting).

      We granted certiorari to review the Court of Appeals’ holding in Division

2. The case was orally argued on January 19, 2016.

      2.    In applying the test for determining the admissibility of similar

transaction evidence under the old Evidence Code, see footnote 4 above, the

decisive question was often, as in this case, whether the State showed that there

was a “‘sufficient connection or similarity between the independent offenses or

acts and the crime charged so proof of the former tends to prove the latter.’”

Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009) (citation omitted). In

this analysis, the proper focus was “on the similarities, not the differences,

between the separate act and the crimes in question.” Johnson v. State, 289 Ga.

22, 24 (709 SE2d 217) (2011). The independent act did not need to mirror

every detail of a charged crime, but instead might reflect only a portion of the

acts that established one or more of the charges being tried. See, e.g., Alatise

v. State, 291 Ga. 428, 431 (728 SE2d 592) (2012) (citing Oliver v. State, 276

Ga. 665 (581 SE2d 538) (2003), a robbery and murder case in which this Court

                                       10
upheld the admission of evidence concerning the defendant’s entry by key into

the apartments of women other than the victim around the same time as the

crimes charged, ostensibly for maintenance purposes, because there were no

signs of forcible entry into the victim’s apartment); Chua v. State, 289 Ga. 220,

232 (710 SE2d 540) (2011) (same). Moreover, a lesser degree of similarity was

required to admit evidence of independent acts to show motive or intent than to

admit such evidence to prove identity. See Smith v. State, 273 Ga. 356, 357

(541 SE2d 362) (2001). On appeal, the trial court’s decision to admit similar

transaction evidence would be upheld unless it was an abuse of discretion. See

Whitehead v. State, 287 Ga. 242, 249 (695 SE2d 255) (2010).

            (a)   The Court of Appeals majority opinion correctly recited

general principles governing the admission of similar transaction evidence under

the old Evidence Code, but then seemed to confuse criminal intent with a

completed crime.      The majority opinion acknowledged that “a similar

transaction need not be a crime,” citing this Court’s decision in Chua, but then

asserted without citation that “the fact that a person engaged in non-criminal

behavior does not evince criminal intent.” Ashley, 331 Ga. App. at 798. The

majority opinion also jumped from the premise that the State “has not argued

                                       11
that Ashley’s behavior in the earlier incidents was criminal” to the conclusion

that the State “sought to use acts in which Ashley lacked criminal intent to prove

that he had criminal intent in another instance.” Id. (emphasis in original).

After discussing cases decided by this Court under the new Evidence Code and

the Eleventh Circuit under the Federal Rules of Evidence, the majority opinion

concluded that “[t]his case . . . involves instances where Ashley had different

mental states – lacking criminal intent on the one hand and allegedly possessing

criminal intent on the other hand.” Id.

       Intent, however, exists apart from the act that makes it a crime. See

OCGA § 16-2-1 (a) (defining a “crime” as “a violation of a statute of this state

in which there is a joint operation of an act or omission to act and intention or

criminal negligence”).6 See also Henderson v. Hames, 287 Ga. 534, 538 (697

SE2d 798) (2010) (noting that the commission of a crime requires the joint

operation of an actus reus and a mens rea). Depending on what the non-criminal

behavior is, it might well evince an intent that, if coupled with different acts,

would constitute a crime.

       6
         Criminal negligence is defined as “an act or failure to act which demonstrates a willful,
wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured
thereby.” OCGA § 16-2-1 (b).

                                                12
      It also is not clear why the Court of Appeals majority focused on whether

the State had argued that the similar transactions were “criminal.” As the

majority opinion had just observed, it was well established under the old

Evidence Code that similar transaction evidence was not limited to a defendant’s

previous illegal conduct. See, e.g., Alatise, 291 Ga. at 431; Chua, 289 Ga. at

232; Phagan v. State, 268 Ga. 272, 279 (486 SE2d 876) (1997). See also Davis

v. State, 269 Ga. 276, 278 (496 SE2d 699) (1998) (“It is the similarity of the

facts of the defendant’s prior conduct to the facts of the case being tried that is

the critical element of this type of evidence, not the adjudication of any charges

which might have been brought as a result of the earlier conduct.”).

      The fact that the State did not file criminal charges against Ashley based

directly on the pool incidents – although those incidents did lead to his criminal

trespass warning, the violation of which resulted in his trespass conviction –

does not mean that his behavior in those incidents was non-criminal or that it

was not indicative of his state of mind. Indeed, two of the allegedly similar

transactions – repeatedly touching a ten-year-old girl against her wishes and to

the point it made her sick to her stomach, and repeatedly shooting a five-year-

old boy with a water gun to the point that he was crying and had red marks on

                                        13
his skin – at least arguably constituted simple battery. See OCGA § 16-5-23 (a)

(“A person commits the offense of simple battery when he or she either: (1)

Intentionally makes physical contact of an insulting or provoking nature with

the person of another; or (2) Intentionally causes physical harm to another.”);

Meja v. State, 232 Ga. App. 548, 549 (502 SE2d 484) (1998) (“For simple

battery, mere pain is sufficient to show physical harm.”).

            (b)   So under a proper understanding of criminal intent, was the

evidence of the three prior pool incidents – all of which occurred in the same

trailer park in the same summer as the crimes charged – admissible as similar

transaction evidence under the old Evidence Code? Ashley was charged with,

among other things, the kidnapping and attempted kidnapping of two young

girls. A person commits kidnapping when he “abducts or steals away another

person without lawful authority or warrant and holds such other person against

his or her will,” OCGA § 16-5-40 (a), and a person commits criminal attempt

when, “with intent to commit a specific crime, he performs any act which

constitutes a substantial step toward the commission of that crime,” OCGA §

16-4-1. Two of the allegedly similar transactions involved Ashley’s making

physical contact with young children in an offensive manner that they indicated

                                      14
to him was unwanted – one child by saying that she would punch him if he did

not stop, and the other by crying – much like K.L. and B.L., who were

screaming and trying to get away from Ashley. Moreover, Ashley put his intent

during the minivan incident squarely at issue by claiming that he mistakenly

believed that the minivan was his father’s, did not intend K.L. and B.L. any

harm, and did not engage or try to engage in any unwanted touching or moving

of them. Indeed, he pursued his no-intent claim on appeal. See Ashley, 331 Ga.

App. at 796. Thus, those two pool incidents were probative on the issue of

Ashley’s intent.

            (c)    The other incident at the pool – Ashley’s leering at young girls

to the point that it made adults uncomfortable – is less clearly probative of his

intent with regard to the charged crimes. However, that incident was evidence

of Ashley’s motive or “bent of mind” in grabbing K.L. and grabbing for B.L. –

“touching himself” during the process – and motive and bent of mind were

proper non-character purposes for admitting similar transaction evidence under

the old Evidence Code. In the words of the case law interpreting the old Code,

this incident was evidence of Ashley’s lustful disposition toward young girls

like K.L. and B.L., which would give him a motive to kidnap them. See, e.g.,

                                        15
Phagan, 268 Ga. at 279 (noting that the behavior showing lustful disposition

could itself be legal, such as the legal possession of pornographic movies

depicting conduct linked to the charged crimes); Caldwell v. State, 263 Ga. 560,

564-565 (436 SE2d 488) (1993) (same).7 Motive evidence was especially

important in this case due to Ashley’s insistence that he was simply high during

the minivan incident and had no improper motive.

       The trial court referred to this evidence as showing Ashley’s desires

toward young children – the language of motive or bent of mind – but admitted

it under the label of “intent,” even though none of the crimes charged required

proof of a sexual intent. Because this evidence could have been admitted as to

issues other than intent, and because of the other compelling evidence of

Ashley’s guilt, including his own contradictory statements and testimony, we

see no reversible error in the trial court’s admission of the evidence that Ashley

had leered at young girls shortly before he tried to kidnap two young girls in the


       7
         “Lustful disposition” was often associated with “bent of mind,” the murky mixture of state
of mind evidence, potentially encompassing motive and intent and perhaps more, that Georgia courts
long held was a proper non-character purpose for admitting evidence of independent acts. See, e.g.,
Caldwell, 263 Ga. at 564-565. “Bent of mind” is not part of the new Evidence Code. See Olds v.
State, Case No. S15G1610, 2016 WL 2946361, at *3 n.6 (May 23, 2016) (explaining that the new
Evidence Code “does not authorize the admission of evidence of other acts to show ‘bent of mind’
or ‘course of conduct’” (citation omitted)).

                                               16
same neighborhood. See Matthews v. State, 294 Ga. 50, 54 (751 SE2d 78)

(2013) (finding no reversible error where the trial court properly admitted

similar transaction evidence under the old Evidence Code that the State offered

for the purposes of showing the defendant’s intent, course of conduct, and

common scheme or plan, even though the court instructed the jury that it could

also consider the evidence for the purpose of showing the perpetrator’s identity).

See also Peoples v. State, 295 Ga. 44, 55 (757 SE2d 646) (2014) (“The test for

determining nonconstitutional harmless error is whether it is highly probable

that the error did not contribute to the verdict.”).

      3.    We therefore conclude that under the old Evidence Code and the

cases interpreting it, the trial court acted within its discretion in admitting the

evidence of Ashley’s conduct at the pool involving the ten-year-old girl and the

five-year-old boy as proof of his intent when he grabbed K.L. and tried to grab

B.L. – particularly in view of Ashley’s protestations, both before and at trial,

that he acted with innocent or even helpful intent. See Oliver, 276 Ga. at 667;

Murray v. State, 293 Ga. App. 516, 520-522 (667 SE2d 382) (2008) (upholding

the admission of evidence that the defendant tried to coax and then tried to pull

an 18-year-old woman into his apartment complex pool, allegedly committing

                                        17
a simple battery on her, at the defendant’s trial for aggravated assault with intent

to rape and other crimes committed against his 15-year-old stepdaughter). We

also conclude that even if the evidence of Ashley’s leering at young girls at the

pool was not properly admitted on the issue of intent, the trial court could have

properly admitted it for other purposes and the other evidence of Ashley’s guilt

was strong, so any error was harmless.

      Rather than engaging in a straightforward analysis of similar transaction

evidence under the old Evidence Code and the copious case law interpreting it,

the Court of Appeals majority looked for “persuasive” guidance to the new

Evidence Code and cases interpreting the new Code and the Federal Rules of

Evidence, Ashley, 331 Ga. App. at 798, which may account in part for how the

majority went astray and was a principal criticism of its opinion by the

dissenting judges, see id. at 800 (Ray, J., dissenting). At the least, the majority

opinion’s reliance on those sources unnecessarily complicated its analysis. In

many a case, the result may be the same whether an issue is analyzed under our

old or new Evidence Code, but as we have recently emphasized to lawyers, if

that is so, it is “happenstance, at least without careful comparison of the old and

new law.” Davis v. State, Case No. S16A0103, 2016 WL 3145125, at *9 & n.9

                                        18
(decided June 6, 2016). Where there is ample authority available on an issue

under the applicable Evidence Code, there is no need to look elsewhere. And

so it should be clear that we render no opinion on how this case would be

decided under the new Evidence Code.

      For these reasons, we reverse the Court of Appeals’ judgment as to

Division 2 of the majority opinion, and we remand the case for consideration of

the other enumerations raised by Ashley.

      Judgment reversed in part, and case remanded with direction. All the

Justices concur.




                                      19
