296 Ga. 650
FINAL COPY
                      S14A1365. BRADSHAW v. THE STATE.


       THOMPSON, Chief Justice.

       Appellant Christopher Bradshaw and Michael Boykin were jointly

indicted for malice murder and other crimes in connection with the shooting

deaths of Devonta Stembridge and Dion Brice. The trial court severed the co-

defendants’ trials, and appellant was tried first, with Boykin testifying against

him. Appellant was convicted on all counts of the indictment, except the count

for tampering with evidence, on which the trial court directed a verdict.1

Appellant appeals, contending that the evidence is insufficient to support his

convictions and that the trial court erred by admitting evidence of a prior murder



       1
          The crimes occurred on June 25, 2011. On May 31, 2012, appellant was indicted by a
Clayton County grand jury for the malice murder of Stembridge and Brice, for the felony murder of
Stembridge and Brice, for the aggravated assault of Stembridge and Brice, for criminal attempt to
possess marijuana, for the possession of a weapon during the commission of a felony, and for
tampering with evidence. At trial, the trial court directed a verdict on the tampering with evidence
count, and on March 14, 2013, a jury found appellant guilty on the other eight counts. The felony
murder verdicts were vacated as a matter of law, and the trial court merged the aggravated assault
verdicts with the verdicts on malice murder. The trial court sentenced appellant to life without the
possibility of parole on both malice murder verdicts, to five consecutive years on the firearm verdict,
and to 12 concurrent months on the marijuana verdict. On March 18, 2013, appellant filed a motion
for new trial, which he amended on January 17, January 21, and January 22, 2014. On March 25,
2014, the trial court denied appellant’s motion for new trial, as amended. Appellant filed a timely
notice of appeal, and the case was docketed in this Court for the September 2014 term and submitted
for decision on the briefs.
committed by appellant.

      1. Viewed in the light most favorable to the verdict, the evidence at trial

showed that appellant and Boykin both moved from Dayton, Ohio, to Atlanta,

where they met in May 2011 and became friends. On June 25, 2011, appellant

told Boykin that he wanted to buy a pound of marijuana. Boykin, who at the

time of appellant’s trial had not made a deal with the State in exchange for his

testimony, testified that he arranged for appellant to purchase marijuana from

Stembridge. That night, Stembridge and Brice picked up Boykin at his

apartment and drove to a nearby apartment complex, where they met appellant.

Appellant got in Stembridge’s car and sat behind Stembridge, who was in the

driver’s seat. Brice was in the front passenger seat, and Boykin was sitting

behind him.

      Before the marijuana sale occurred, Boykin’s phone rang, and he stepped

out of the car, which had both passenger side windows open. Boykin finished

his conversation and, while outside the car, began speaking with the others in

the car. He saw Stembridge hand the marijuana to appellant, who said it “didn’t

feel right,” “like it ain’t heavy enough.” Appellant cut into the marijuana and

“hay starting popping out.” Appellant then pulled out a chrome semi-automatic

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handgun and shot Stembridge in the back of the head. Boykin fled and then

heard more shots. Boykin turned around and saw appellant running behind him.

Appellant took off his cap and white t-shirt (under which he was wearing a

white tank top) and threw them to the side. They both ran to Boykin’s mother’s

apartment, which was nearby. Boykin’s mother testified that when Boykin and

appellant came into the apartment that night, both were sweaty and that

appellant was wearing a white tank top and no cap, whereas when she had seen

him earlier in the day, he was wearing a white t-shirt and cap. Boykin and

appellant went immediately to Boykin’s room. According to Boykin, appellant

threatened to kill him if he told anyone what he had seen and also said that he

knew where Boykin’s mother lived. Appellant showered, and he and Boykin

then went to appellant’s apartment.

      Stembridge was shot once in the back of the head, and Brice was shot

once in the head and once in the back. Both died from their injuries. Several

9mm shell casings were found in and around the car, and the placement of those

casings was consistent with a person shooting from the back seat. Forensic

evidence showed that the casings, as well as two bullets recovered from the

victims’ bodies, were fired from a handgun recovered from appellant’s

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apartment. The police found a cigar in the back seat of the car and a white t-

shirt and cap, both with blood on them, near the car. Both the cigar and the cap

had appellant’s DNA on them, and the blood recovered from the cap and shirt

matched Stembridge’s DNA.

      The State offered evidence of a prior similar crime, which occurred about

six months before the present crimes and which the trial court admitted for the

limited purpose of proving identity, intent, and motive. Boykin and appellant

both have family in Ohio, and Boykin testified that, in early June 2011, he asked

appellant to go to Ohio with him. Appellant, however, said that he could not go

to Ohio because he was wanted for a murder there. Appellant told Boykin that

he had shot Jeffery Beans in the head and killed him because Beans would not

pay for drugs that appellant’s brother had given him. Appellant said the

shooting occurred on Paul Lawrence Dunbar Street in Dayton, Ohio. A Dayton

police officer testified that on January 10, 2011, he went to 227 Paul Lawrence

Dunbar Street and found Beans’s body there. He had been shot multiple times,

including in the head, and died.

      Appellant’s girlfriend testified that, in May and June 2011, she twice saw

Boykin with a gun that looked like the murder weapon, and appellant’s father,

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who was visiting his son from Ohio on June 25, 2011, testified that, about 8:00

a.m. that day, he saw Boykin sleeping on his son’s sofa with a gun that looked

like the murder weapon lying beside him. Shortly thereafter, appellant’s father

left to return to Ohio.

      2. Appellant contends that the evidence is insufficient to support his

convictions. More specifically, he argues that this Court may not consider the

similar transaction evidence in determining the legal sufficiency of the evidence

because that evidence was improperly admitted, and that, without that evidence,

the only remaining evidence is the uncorroborated testimony of his co-

defendant. Appellant is wrong on both counts.

      As explained in Division 3 below, the trial court did not err by admitting

the similar transaction evidence, and we thus consider it in determining the

sufficiency of the evidence. Moreover, even if the trial court had erred in

admitting the evidence, this Court could nevertheless consider it in determining

the legal sufficiency of the evidence. See Cowart v. State, 294 Ga. 333, 343

(751 SE2d 399) (2013) (explaining that, in determining the sufficiency of the

evidence, a reviewing court “must consider all of the evidence admitted by the

trial court, regardless of whether that evidence was admitted erroneously”

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(citation and punctuation omitted)).2

       As for appellant’s claim that Boykin’s testimony was not properly

corroborated, Georgia’s new Evidence Code provides that to sustain a felony

conviction, the testimony of an accomplice must be corroborated.3 See OCGA

§ 24-14-8. This Code section is virtually identical to the corroboration

provision in the old Evidence Code. See former OCGA § 24-4-8. In enacting

the new Evidence Code, the General Assembly expressed its intent as follows:

             It is the intent of the General Assembly in enacting this Act
       to adopt the Federal Rules of Evidence, as interpreted by the
       Supreme Court of the United States and the United States circuit
       courts of appeal as of January 1, 2013, to the extent that such
       interpretation is consistent with the Constitution of Georgia. Where
       conflicts were found to exist among the decisions of the various
       circuit courts of appeal interpreting the federal rules of evidence,
       the General Assembly considered the decisions of the 11th Circuit
       Court of Appeals. It is the intent of the General Assembly to revise,

       2
         There was an exception to this rule under Georgia’s old Evidence Code for improperly
admitted hearsay evidence, which was “deemed to have no probative value and so could not be
considered in determining the sufficiency of the evidence.” Cowart, 294 Ga. at 343, n.12. Under
our new Evidence Code, if “a party does not properly object to hearsay, the objection shall be
deemed waived, and the hearsay evidence shall be legal evidence and admissible.” OCGA § 24-8-
802. See Paul S. Milich, Ga. Rules of Evidence § 16:7 (citing this provision of the new Evidence
Code and saying that “[o]n January 1, 2013, Georgia will be the last jurisdiction in the nation to
abandon the 19th century fiction that hearsay is ‘illegal’ evidence with no probative value. Under
the pre-2013 rule, even if hearsay was admitted without objection, it could not sustain a finding or
verdict based upon it.” (footnote omitted)).
       3
        Because appellants’ trial was held after January 1, 2013, the corroboration provision of
Georgia’s new Evidence Code is applicable. See Ga. L. 2011, pp. 99, 214, § 101.

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      modernize, and reenact the general laws of this state relating to
      evidence while adopting, in large measure, the Federal Rules of
      Evidence. The General Assembly is cognizant that there are many
      issues regarding evidence that are not covered by the Federal Rules
      of Evidence and in those situations the former provisions of Title 24
      have been retained. Unless displaced by the particular provisions
      of this Act, the General Assembly intends that the substantive law
      of evidence in Georgia as it existed on December 31, 2012, be
      retained.

See Ga. L. 2011, p. 100, § 1.

      The Federal Rules of Evidence contain no provision regarding accomplice

testimony, and the “‘uncorroborated testimony of an accomplice is sufficient to

support a conviction in the Federal Courts if it is not on its face incredible or

otherwise insubstantial.’” United States v. LeQuire, 943 F2d 1554, 1562 (11th

Cir. 1991) (citation omitted). Accord United States v. Henley, 360 F3d 509, 513

(6th Cir. 2004) (“‘[I]t is well-settled that uncorroborated testimony of an

accomplice may support a conviction in federal court.’” (citation omitted)).

      In the absence of a provision in the Federal Rules of Evidence governing

accomplice testimony, in light of the General Assembly’s statement that it did

not intend to change the substantive law of Georgia as existing on December 31,

2012, unless that law was displaced by a provision of the new Evidence Code,

and in light of the nearly identical language of the accomplice provisions in the

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old and new Evidence Codes, we give the new accomplice provision the same

meaning as the old one. See City of Thomaston v. Bridges, 264 Ga. 4, 6 (439

SE2d 906) (1994) (noting the “rule of construction that absent a clear indication

to the contrary, this Court should accord to virtually identical language in

successor provisions the same construction given the original language”). See

also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A., 559 U. S. 573,

589-590 (130 SCt 1605, 176 LE2d 519) (2010) (“We have often observed that

when ‘judicial interpretations have settled the meaning of an existing statutory

provision, repetition of the same language in a new statute indicates, as a general

matter, the intent to incorporate its . . . judicial interpretations as well.’”

(citation omitted)).

      Regarding accomplice testimony, we have said that

      sufficient corroborating evidence may be circumstantial, it may be
      slight, and it need not of itself be sufficient to warrant a conviction
      of the crime charged. It must, however, be independent of the
      accomplice testimony and must directly connect the defendant with
      the crime, or lead to the inference that he is guilty. Slight evidence
      from an extraneous source identifying the accused as a participant
      in the criminal act is sufficient corroboration of the accomplice to
      support a verdict.

Threatt v. State, 293 Ga. 549, 551 (748 SE2d 400) (2013) (citations and


                                        8
punctuation omitted).

        Here, there was ample corroboration of Boykin’s testimony. In addition

to the similar transaction evidence, the murder weapon was found in appellant’s

home; a cap and t-shirt like the ones that Boykin said appellant discarded near

the murder scene were found near there; appellant’s DNA was found on the cap;

and Stembridge’s DNA was found on the cap and t-shirt. Thus, there was

sufficient corroboration of Boykin’s testimony, and viewed in the light most

favorable to the verdict, we conclude that the evidence was sufficient to

authorize a rational jury to find beyond a reasonable doubt that appellant was

guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.

S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).

        3. Appellant contends that the trial court erred by admitting evidence of

the Ohio murder as a similar transaction. We disagree.

        Because appellant’s trial was held after January 1, 2013, Georgia’s new

Evidence Code governs this contention. OCGA § 24-4-404 (b) of the new Code

says:

              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

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       purposes, including, but not limited to, proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or
       absence of mistake or accident. . . .

Moreover, under OCGA § 24-4-403, “[r]elevant evidence may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Both of

these provisions track their federal counterparts. See Rules 403 and 404 (b) of

the Federal Rules of Evidence.

       The Eleventh Circuit applies a three-part test to determine admissibility

of evidence of other crimes and acts under Rule 404 (b):

       (1) the evidence must be relevant to an issue other than defendant’s
       character; (2) the probative value must not be substantially
       outweighed by its undue prejudice; (3) the government must offer
       sufficient proof so that the jury could find that defendant committed
       the act.

United States v. Ellisor, 522 F3d 1255, 1267 (11th Cir. 2008).4 A leading

       4
           As for the third prong of this test, the United States Supreme Court has held that Rules 104
and 404 (b) of the Federal Rules of Evidence do not require, as a condition of admissibility, a
preliminary finding by the trial court that the government has proved the other crime by a
preponderance of the evidence. See Huddleston v. United States, 485 U. S. 681, 688-689 (108 SCt
1496, 99 LE2d 771) (1988). Instead, the Court held, other acts evidence may be admitted if the court
concludes that the evidence is sufficient for the jury to find by a preponderance of the evidence that
the other act was committed. Id. at 689-690. The Court also noted that, although the petitioner
initially argued that the government was required to prove the other crime by clear and convincing

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treatise on federal evidence law says that this test is the substantial equivalent

of the test applied by other federal courts, see 2 Weinstein’s Federal Evidence

§ 404.21 [1] [b]-[m], but even if the Eleventh Circuit test is in conflict with that

of other federal circuit courts, the General Assembly has expressed its intent to

follow the Eleventh Circuit as of January 1, 2013, in the event of such a conflict.

We thus apply the Eleventh Circuit rule. This includes its rule, which is

consistent with this State’s longstanding rule regarding the admission of

evidence, that a decision to admit evidence under Federal Rules of Evidence 403

and 404 (b) is reviewed for a “‘clear abuse of discretion.’” United States v.

McNair, 605 F3d 1152, 1203, n. 69 (11th Cir. 2010) (citation omitted).

       As for the first prong of the analysis, the trial court admitted evidence of

the Ohio crime to show intent, motive, and identity. With regard to intent,

       “[a] defendant who enters a not guilty plea makes intent a material
       issue which imposes a substantial burden on the government to
       prove intent, which it may prove by qualifying Rule 404 (b)
       evidence absent affirmative steps by the defendant to remove intent

evidence, the petitioner properly conceded at oral argument that his position was wrong in light of
the Court’s decision in Bourjaily v. United States, 483 U. S. 171 (107 SCt 2775, 97 LE2d 144)
(1987), in which the Court held that “preliminary factual findings under Rule 104 (a) are subject to
the preponderance-of-the-evidence standard.” Huddleston, 485 U. S. at 687, n. 5. Our new Evidence
Code has adopted the preponderance of the evidence standard for preliminary factual questions
regarding the admissibility of evidence. See OCGA § 24-1-104 (a) (“Preliminary questions shall be
resolved by a preponderance of the evidence standard.”).

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      as an issue.” “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.

United States v. Edouard, 485 F3d 1324, 1345 (11th Cir. 2007) (citations

omitted). Because the murder of the victim in this case and the Ohio case

involve the same mental state and appellant did not take steps to remove intent

as an issue, evidence of the Ohio murder was relevant to establish his intent.

      We also conclude that the evidence was admissible to show motive.

Motive has been defined as “‘the reason that nudges the will and prods the mind

to indulge the criminal intent.’” United States v. Beechum, 582 F2d 898, 912,

n. 15 (5th Cir. 1978) (citation omitted). In this case, the evidence of the Ohio

murder was relevant to motive because it demonstrated appellant’s willingness

to use violence when he or someone close to him is cheated in a drug deal. See

United States v. Banks, 514 F3d 959, 976 (9th Cir. 2008) (holding that evidence

of the defendant’s prior stabbing of someone who insulted his gang status was

admissible to prove motive under Rule 404 (b) in his trial for attempted murder




                                       12
of someone else who also insulted his gang status).5

       Moreover, we are satisfied that the trial court did not abuse its discretion

in determining that the probative value of evidence of the Ohio crime, which

was factually similar to the Georgia crimes and occurred only six months before

them and which was needed by the State to help establish that appellant and not

Boykin was the shooter, was not substantially outweighed by its prejudicial

effect. See United States v. Perez, 443 F3d 772, 780 (11th Cir. 2006) (saying

that “[t]his determination lies within the discretion of the district court and ‘calls

for 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.’” (citation

omitted)); United States v. Merrill, 513 F3d 1293, 1301 (11th Cir. 2008) (saying

that a trial court’s discretion to exclude evidence under the balancing test of

“‘Rule 403 is an extraordinary remedy which should be used only sparingly


       5
         Having determined that the evidence was admissible as to intent and motive, we need not
examine whether it was also admissible on the issue of identity. See United States v. Phaknikone,
605 F3d 1099, 1108 (11th Cir. 2010) (saying that for purposes of proving identity, “the likeness of
the offenses is the crucial consideration. The physical similarity must be such that it marks the
offenses as the handiwork of the accused. . . . The extrinsic act must be a ‘signature’ crime, and the
defendant must have used a modus operandi that is uniquely his.” (citations and punctuation
omitted)).

                                                 13
since it permits the trial court to exclude concededly probative evidence’”

(citation omitted)); United States v. Terzado-Madruga, 897 F2d 1099, 1119 (11th

Cir. 1990) (saying that in close cases, the balance under Rule 403 should be

struck in favor of admissibility).

      Finally, contrary to appellant’s contention, the third prong of the test is

also satisfied. Based on appellant’s statements to Boykin and the testimony of

the Ohio officer, a jury could have found by a preponderance of the evidence

that appellant committed the Ohio crime. See Edouard, 485 F3d at 1345.

      For these reasons, we conclude that the trial court did not abuse its

discretion by admitting evidence of the Ohio crime.

      Judgment affirmed. All the Justices concur.



                            Decided March 2, 2015.

      Murder. Clayton Superior Court. Before Judge Benefield.

      Stanley W. Schoolcraft III, for appellant.

      Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Kathryn L.

Powers, Assistant District Attorneys, Samuel S. Olens, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

                                       14
Assistant Attorney General, Vicki S. Bass, Assistant Attorney General, for

appellee.




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