                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, 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 27, 2015




In the Court of Appeals of Georgia
 A15A1031. HUFF v. THE STATE.

      MCMILLIAN, Judge.

      Terrence Ramon Huff was convicted by jury of armed robbery and possession

of a knife during the commission of a felony and sentenced to 20 years, 15 to serve.

He filed a motion for new trial, as twice amended, which the trial court denied

following a hearing. He appeals, contending that the trial court violated OCGA § 17-

8-57 by impermissibly commenting on the similarity and probative value of other

crimes evidence admitted at trial and that his trial counsel was ineffective. As more

fully set forth below, we agree the trial court violated OCGA § 17-8-57 and that,

accordingly, Huff is entitled to a new trial.
      Construed to support the jury’s verdict,1 the evidence shows that around 9:35

p.m. on February 2, 2009, three men with their faces partially concealed entered the

Tri-County Gas and Grocery convenience store in Ray City, Georgia. The taller of the

three men had a knife, and the other two men were armed with guns. The men

demanded money2 and then went behind the counter where the cash registers were

located. Cameras inside the store recorded the robbers’ activities, and video clips

were played at trial showing the men opening the cash drawers and removing cash,3

taking several cartons of cigarettes out of a box on the floor, and removing items from

underneath the counter. The men then fled, running out the front door and around the

side and toward the back of the building.



      1
        Huff does not challenge the sufficiency of the evidence. Nevertheless, we
have reviewed the evidence and find it sufficient to authorize Huff’s convictions
under the standard of Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560)
(1979).
      2
         There were three employees in the store at the time of the robbery–the store
manager, his wife, and another employee. The store manager and his wife testified at
trial, but the other employee no longer worked at the store at the time of trial and was
not called to testify. The witnesses testified that they were at a table by the door when
the men entered the store and that is where they stayed during the robbery.
      3
        There were two cash drawers–one for lottery ticket sales and one for general
merchandise sales. The store manager testified that approximately $2000 was taken
during the robbery.

                                            2
       Police were dispatched to the store and began searching for the men. Although

police found a knife a short distance from the back of the store, the search for the

robbers was unsuccessful. One of the store’s black merchandise bags was found on

the floor behind the counter, and evidence was presented that the bag had not been

on the floor prior to the robbery and that the tall robber with the knife dropped it on

the floor while he was going through items underneath the counter. The bag was

tested for fingerprints and five prints, one which matched Huff’s eighth digit, or left

middle finger, were revealed on the bag. Both the store manager and his wife testified

that they had seen Huff come into the store on several occasions prior to the robbery,

although his face was obscured during the robbery and they could not identify him

at that time.

       The State also presented evidence that several weeks later, on February 26,

2009, Huff was arrested with several other men in connection with an attempted

robbery of a Dominos Pizza Store, and he later entered a guilty plea to that charge.

Evidence was presented that Huff was taller than the other men involved in the

attempted robbery, and video clips of the convenience store robbery clearly show that

one of the robbers was taller than the other two.



                                          3
      1. Huff contends that he is entitled to a new trial because the trial court violated

OCGA § 17-8-574 by commenting on the similarity and probative value of the similar

transaction evidence. We agree. The record shows that prior to trial, the trial court

conducted a hearing to determine the admissibility of evidence of the Dominos

attempted robbery and ruled the evidence admissible to show modus operandi, bent

of mind, and identity of the Defendant. Subsequently, when the State called its first

similar transaction witness at trial, the trial court, sua sponte, made the following

statement to the jury.

      I don’t know that I made the precise or complete ruling in Chambers this
      morning but, for the Jury, we’re to the point of the case where the State
      is offering what is known as Similar Transaction Evidence. I’m going
      to give you a charge on that in just a minute to help explain to you
      what’s taking place as far as the presentation of the evidence goes. But
      on my decision earlier I want to add that the Court found that the


      4
        At the time Huff was tried in 2010, that section provided:
      It is error for any judge in any criminal case, during its progress or in his
      charge to the jury, to express or intimate his opinion as to what has or
      has not been proved or as to the guilt of the accused. Should any judge
      violate this Code section, the violation shall be held by the [appellate
      court] to be error and the decision in the case reversed, and a new trial
      granted in the court below with such directions as the [appellate court]
      may lawfully give.

                                           4
      probative value as to the similarity and/or the connection of the
      Defense’s charge outweighs any prejudice to the Defendant and
      admitted the Similar Transaction Evidence.


(Emphasis supplied.) Immediately thereafter, the Court charged the jury on the

consideration of the similar transaction evidence:

      Sometimes evidence is admitted for a limited purpose. Such evidence
      may be considered by the jury for the sole issue or purpose for which the
      evidence is limited and not for any other purpose. The law provides that
      evidence of other acts or occurrences of this Defendant that are
      sufficiently similar or connected and, therefore, purportedly related to
      the offense or offenses for which the Defendant is on trial may be
      considered for the limited purpose of showing, if it does, the intent,
      motive, identity, course of conduct, bent of mind, modus operandi in the
      crime charged in the case now on trial. Such evidence, if any, may not
      be considered by you for any other purpose. . . . Before you may
      consider any other acts or occurrences for the limited purposes stated,
      you must first determine whether the accused committed the other acts
      or occurrences, if so, you must then determine whether the act or
      occurrence was sufficiently similar and, therefore, purportedly related
      to the crimes charged in the indictment such that proof of the other acts
      or occurrences tend to prove the crime charged in the indictment.


(Emphasis supplied.) Following the limiting instruction, Huff’s counsel asked for the

jury to be excused and repeatedly moved for a mistrial, arguing that the jury had been


                                          5
tainted by the trial court’s comments to the jury on the probative value and similarity

of the prior crimes evidence. The trial court denied the motion without explanation,

and the trial resumed with the presentation of the similar transaction witnesses.

        Generally speaking, remarks made by a trial court in discussing the

admissibility of evidence or explaining its rulings do not constitute prohibited

expressions of opinion. Smith v. State, 292 Ga. 588, 590 (2) (740 SE2d 129) (2013).

However, comments by the trial judge on its rulings that include expressions of

opinion as to what has been proven, the credibility of a witness, or on a disputed issue

of material fact are clearly improper under OCGA § 17-8-57. See Murphy v. State,

290 Ga. 459, 460 (2) (722 SE2d 51) (2012); Chumley v. State, 282 Ga. 855, 857 (2)

(655 SE2d 813) (2008); Patel v. State, 282 Ga. 412, 414 (2) (651 SE2d 55) (2007).

      Under analogous circumstances, our appellate courts have on several occasions

considered whether a trial court violates OCGA § 17-8-57 by making statements to

the jury that the defendant’s statement was freely and voluntarily given, as

determined by the trial court at a hearing outside the presence of the jury, and we find

the reasoning in those cases equally applicable here. Freeman v. State, 295 Ga. 820,

821-822 (764 SE2d 390) (2014); Chumley, 282 Ga. at 857 (2); Ray v. State, 181 Ga.

App. 42, 44 (3) (351 SE2d 490) (1986). Although the trial court in this case acted

                                           6
properly in making a threshold determination concerning the admissibility of the

similar crimes evidence under Williams v. State, 261 Ga. 640, 642 (409 SE2d 649)

(1991), the trial court should have refrained from commenting on the similarity and

probative value of the other offense. Such statements to the jury, even when coupled

with an immediate charge on the jury’s responsibility to make the ultimate

determination on similarity and probative value, violated OCGA § 17-8-57. Instead,

once the trial court determined and ruled outside the presence of the jury that the

similar transaction evidence was admissible, it should have simply provided the

appropriate limiting instruction about the evidence, without informing the jury of the

court’s evaluation of the evidence.5 See Freeman, 295 Ga. at 822. Cf. Williams v.

State, 244 Ga. App. 692, 696 (3) (536 SE2d 572) (2000) (no reversible error where

trial court stated, in overruling objection, that there was sufficient corroboration of


      5
          We do not suggest that the trial court could violate OCGA § 17-8-57 by
simply ruling on an objection on the grounds that the evidence is more prejudicial
than probative; rather, it is the comment on the similarity of the evidence here that
constitutes a violation of OCGA § 17-8-57. As explained above, remarks during
colloquies between the judge and counsel on the admissibility of evidence wherein
the judge makes “remarks of a judge assigning a reason for his ruling are neither an
expression of opinion nor a comment on the evidence.” (Citation omitted.) See Ellis
v. State, 292 Ga. 276, 281-282 (3) (736 SE2d 412) (2013) (judge’s statement in ruling
on objection that evidence was “admissible as a prior consistent” did not violate
OCGA § 17-8-57).

                                          7
the similar transaction evidence because defense counsel should have anticipated

when posing objection that trial court might feel compelled to explain its earlier

ruling to admit the evidence).

      The State argues, however, that the reversal and retrial are not mandated here

because Huff admitted that he committed the similar crime. The State is correct that

part of Huff’s trial strategy was to admit he was involved in the other offense, point

out to the jury that he had taken responsibility for that crime by pleading guilty, and

argue that if he was guilty of the present charges, he would have taken responsibility

by pleading guilty to that crime also. But whether or not Huff admitted to the similar

crime is “immaterial, since the error lies in the trial court’s informing the jury that it

had ruled that [the prior offense was sufficiently similar and therefore probative].”

Chumley, 282 Ga. at 857 (2). And, in any event, Huff never conceded the similarity

of the prior and present offenses; rather, one of his theories of defense was to point

out the insufficiencies in the State’s proof and argue that the State was using his

guilty plea to improperly bolster its weak evidence of the convenience store crime.

Thus, under these circumstances, the trial court’s statement in this case that the other

crime was similar and therefore probative of Huff’s guilt on the current robbery

charge was particularly damaging to Huff’s theory of defense. Moreover, regardless

                                            8
of any showing of harm, “[i]t is well established that the trial court’s compliance with

the statutory language of OCGA § 17-8-57 is mandatory and that a violation of its

mandate requires a new trial.”6 (Citation and punctuation omitted.) Chumley, 282 Ga.

at 858 (2). Accordingly, we must reverse Huff’s conviction and remand the case or

a new trial.

      2. In light of our holding in Division 1, it is unnecessary for us to address

Huff’s contention that his trial counsel was ineffective.

      Judgment reversed. Barnes, P. J., and Ray, J., concur.




      6
         We note that since Huff was tried, OCGA § 17-8-57 has been amended in
several material respects, and we express no opinion as to the continued viability of
this statement under the new statute. See Ga. L. 2015, p. 1050, § 1.

                                           9
