                            SECOND DIVISION
                              MILLER, P. J.,
                         ANDREWS and BRANCH, 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


                                                                  February 28, 2017




In the Court of Appeals of Georgia
 A15A0136. OLDS v. THE STATE.

      MILLER, Presiding Judge.

      This case involves the admission of extrinsic acts evidence under OCGA § 24-

4-404 (b) (“Rule 404 (b)”), to establish defendant, Vashon Olds’s, intent, plan, and

motive in his trial for kidnapping, aggravated assault with intent to rape, false

imprisonment and battery.

      In Olds v. State, 299 Ga. 65 (786 SE2d 633) (2016) (Olds II), the Supreme

Court of Georgia vacated the judgment of this Court in Olds v. State, 332 Ga. App.

612 (774 SE2d 186) (2015) (Olds I), and remanded with direction for this Court to

consider the admissibility of the extrinsic acts evidence in light of Olds II. We

therefore vacate our opinion in Olds I, supra, and reconsider as directed.
      After a thorough review, we find that the extrinsic acts evidence was relevant

and admissible, under OCGA § 24-4-404 (b),1 to show Olds’s intent and motive. We

further find that the probative value of the extrinsic acts evidence was more

significant than any prejudicial effect, and that the State offered sufficient proof of

the extrinsic acts for the jury to conclude that Olds committed them. Consequently,

we now hold that the trial court properly admitted the extrinsic acts evidence, and we

affirm Olds’s convictions.

      Viewed in the light most favorable to Olds’s convictions,2 the facts in this case

show that Olds was a close family friend of the victim, and they were briefly involved

in a romantic relationship. In February 2009, a few years after their relationship had

ended, the victim and her son moved into Olds’s trailer. The victim told Olds that

they would not be resuming their prior romantic relationship, and Olds confirmed that

he understood.

      Shortly after the victim moved in, Olds told the victim’s boyfriend that he

considered the victim to be “his lady.” The next day, the victim told Olds that she was



      1
        Because Olds was tried after January 1, 2013, Georgia’s new Evidence Code
applies. See Ga. L. 2011, p. 99, § 101.
      2
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

                                          2
going out of town. As she was getting ready to leave, the victim realized that she had

forgotten her son’s jacket, so she went back inside the trailer. Olds followed her, and

jumped her from behind, while holding a tie in his hand. The victim put her arms up

to keep the tie away from her neck and to avoid being choked.

      Although the victim begged Olds to let her go, he pushed her onto a chair in

his bedroom, tied her up, and threw her on the bed. Olds then got on top of her and

told her that if she cooperated and shut up, “it’ll be over with.” When Olds started to

unzip the victim’s pants, she screamed and Olds put his hands over her nose and

mouth so that she could not breathe.

      Olds duct taped the victim’s mouth, however, the victim used her hands to

remove the tape and screamed again. Olds then told the victim, that if she screamed

again, he would kill her. The victim continued to plead with Olds for about 30

minutes, until he released her.

      Following the incident in the trailer, Olds was charged with kidnapping,

aggravated assault with intent to rape, battery, and false imprisonment. The trial court

admitted evidence of Olds’s prior extrinsic acts, which occurred in June 1999 and

August 2012, to show Olds’s intent, plan, and motive under Rule 404 (b).



                                           3
        Specifically, the extrinsic acts evidence showed that in June 1999, Olds called

T. H., a woman with whom he had been romantically involved. Olds told T. H. that

she had forgotten something at his house and he said he would come over to return

the item. When Olds arrived, he came up behind T. H. with a knife, told her he was

not leaving, said if he could not have her, then nobody else would, and then cut her

chin.

        The extrinsic acts evidence also showed that Olds was acquainted with K. B.,

and, in August 2012, he took K. B. shopping and then drove her to his home. When

they arrived at his home, Olds told K. B. that she had to come inside. K. B. followed

Olds up to his room, and stood by the door for a little bit. K. B. then tried to leave and

Olds grabbed her from behind. Olds threw K. B. onto the bed, held her down, pulled

down her shorts and underwear and forcibly penetrated her vagina with his tongue.

K. B. told Olds to stop and tried to push him away, but he refused to stop, and he tried

to forcibly penetrate K. B.’s vagina with his penis.

        On appeal, Olds contends that the trial court erred in admitting evidence of

these extrinsic acts over his objection. We disagree, and as set forth herein we

conclude that the extrinsic acts evidence was admissible, under Rule 404 (b), to show

Olds’s intent and motive in this case.

                                            4
      OCGA § 24-4-404 (b) pertinently provides:

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


      In determining whether extrinsic acts evidence is admissible, this Court applies

a three-part test for admissibility, which requires a determination that

      (1) the evidence is relevant to an issue in the case other than the
      defendant’s character, (2) the probative value is not substantially
      outweighed by undue prejudice, and (3) there is sufficient proof for a
      jury to find by a preponderance of the evidence that the defendant
      committed the prior act. When weighing the probative value of other
      acts evidence against its prejudicial effect, [we] apply the balancing test
      set forth in OCGA § 24-4-403 [.]


(Citations omitted.) Parks v. State, __ Ga. __, *5-6 (2) (Case No. S16A1001, decided

November 30, 2016). Under OCGA § 24-4-403 (“Rule 403”),

      relevant 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.



                                           5
(Citation and punctuation omitted.) Olds II, supra, 299 Ga. at 70 (2). Nevertheless,

“the exclusion of evidence under Rule 403 is an extraordinary remedy which should

be used only sparingly.” (Citation and punctuation omitted.) Id.

        Here, the trial court admitted the extrinsic acts evidence to show Olds’s intent,

plan, and motive. “We review this decision for clear abuse of discretion.” (Citation

omitted.) Smart v. State, 299 Ga. 414, 417 (2) (788 SE2d 442) (2016).

        1. Relevance

        With regard to the first part of the admissibility test, evidence is relevant under

OCGA § 24-4-401 if the evidence has “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.” Accordingly, we must determine

whether the extrinsic acts evidence was relevant to show Olds’s intent, motive or

plan.

              a. Intent

        With regard to intent, “a plea of not guilty puts the prosecution to its burden

of proving every element of the crime – including intent – [and] evidence of other

acts that tends to make the requisite intent more or less probable to any extent is



                                             6
relevant.” Olds II, supra, 299 Ga. at 75 (2). Olds put his intent at issue in this case

when he pled not guilty and argued at trial that the victim lied about the crimes.

      Furthermore, the record shows that Olds requested a jury charge on sexual

battery as a lesser included offense of the aggravated assault with intent to rape

charge. In so doing, Olds effectively disputed the specific intent element of that

charged offense which also placed his intent at issue in this case. Id.

      Moreover,

      evidence that an accused committed an intentional act generally is
      relevant to show . . . that the same defendant committed a similar act
      with the same sort of intent, especially when the acts were committed .
      . . in similar circumstances.


(Citations omitted.) Id. at 72 (2); see also OCGA § 24-4-413 (providing that, where

a defendant is charged with a sexual assault, evidence of his commission of another

sexual assault “shall be admissible and may be considered for its bearing on any

matter to which it is relevant.”).

      Here, the charged offenses included aggravated assault, and the offense of

aggravated assault as charged is very similar to both the 1999 and 2012 extrinsic acts.

The crimes in this case and the extrinsic acts victims all involved violent assaults on

female acquaintances whom Olds attacked from behind. Moreover, the 2012 extrinsic

                                          7
act involved sexual assault charges, which was relevant to show Olds’s intent to

commit a sexual assault in this case. Olds II, supra, 299 Ga. at 77 (3), n.18.

Consequently, the evidence of Olds’s extrinsic acts was plainly relevant to the issue

of his intent in this case, and the first prong of the admissibility test was satisfied. See

Olds II, supra, 299 Ga. at 72 (2) (Citing Bradshaw v. State, 296 Ga. 650 (769 SE2d

892) (2015).

               b. Motive

       Extrinsic acts are admissible to show motive under Rule 404 (b) if they are

“logically relevant and necessary to prove something other than the accused’s

propensity to commit the crime charged.” (Citation omitted.) Brooks v. State, 298 Ga.

722, 726 (2) (783 SE2d 895) (2016).

       Here, the extrinsic acts evidence was also relevant to help the jury understand

why Olds violently attacked the victim in this case.3 Smart, supra, 299 Ga. 414, 418

(2) (a). Specifically, the evidence showed that, even though the victim had informed

Olds that they would not be resuming their prior romantic relationship, Olds still


       3
        Having determined that the extrinsic acts evidence was relevant and, as set
forth infra, admissible to show both intent and motive in this case, we need not
determine whether that evidence was also relevant and admissible to show a common
plan or for other purposes.

                                             8
considered the victim to be “his lady,” and he committed the crimes in this case when

the victim told him that she tried to leave the trailer that they shared. Similarly, Olds

attacked T. H. in 1999 after their relationship ended and he told her that “if he could

not have her, then nobody else would.” Although Olds was not romantically involved

with K. B., he knew her, drove her to his home, told her she had to come inside and

forcibly attacked and sexually assaulted her when she tried to leave. See id. (extrinsic

acts victim’s testimony regarding specific acts of violence was relevant to show

defendant’s motive in using violence to control murder victim).

      2. Probative Value of the Extrinsic Acts Evidence

      With regard to the second admissibility prong, we must determine whether the

probative value of the evidence “is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury[.] (Citation and punctuation

omitted.) Olds II, supra, 299 Ga. at 70 (2). “Probative value . . . depends on the

marginal worth of the evidence – how much it adds, in other words, to the other proof

available to establish the fact for which it is offered.” Id. at 75-76 (2). After a

thorough review of the record, in light of the decision in Olds II, and after weighing

the value of the extrinsic acts evidence, we are satisfied that the trial court properly



                                           9
determined that the probative value of the extrinsic acts evidence was not

substantially outweighed by its prejudicial effect.

      The charged offense of aggravated assault and the two extrinsic acts were

factually very similar. Notably, all three crimes involved Olds’s violent attacks on

women he knew or had been romantically involved with. Moreover, Olds denied that

he committed the crimes in this case, and there was very little evidence, other than the

victim’s testimony, from which the jury could have “gleaned why” Olds attacked her.

Smart, supra, 299 Ga. at 419 (2) (b). Thus, the extrinsic acts evidence aided the jury

in determining whether Olds committed the crimes in this case. Consequently, the

trial court properly found that the probative value of the extrinsic acts evidence was

not substantially outweighed by its prejudicial effect, and therefore, the second prong

of the admissibility test was satisfied. See Jones v. State, 299 Ga. 377, 383 (4) (788

SE2d 477) (2016) (probative value of evidence of defendant’s prior armed robberies

was not substantially outweighed by its prejudicial effect where defendant testified

that murder victim pulled out a gun and tried to rob defendant).

      3. Sufficient Proof of the Extrinsic Acts Evidence

      Finally, we conclude that the third prong of the admissibility test – whether the

State offered sufficient proof for the jury to conclude that Olds committed the

                                          10
extrinsic acts – was satisfied. T. H. gave detailed testimony regarding the 1999 attack,

K. B. gave detailed testimony about the 2012 attack, and Olds presented no evidence

to rebut either T. H. or K. B.’s testimony. Accordingly, a jury could have found by a

preponderance of the evidence that Olds committed the extrinsic acts. See Smart,

supra, at 419 (2) (c); Brannon v. State, 298 Ga. 601, 608 (4) (783 SE2d 642) (2016).

      For the reasons set forth above, we find that the extrinsic acts evidence met all

three prongs for admissibility. Therefore, the trial court did not clearly abuse its

discretion in admitting evidence of the extrinsic acts under Rule 404 (b), and we

affirm Olds’s convictions.

      Judgment affirmed. Andrews and Branch, JJ., concur.




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