                               THIRD DIVISION
                              ELLINGTON, P. J.,
                         DILLARD and MCFADDEN, 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/


                                                                      June 12, 2015




In the Court of Appeals of Georgia
 A15A0456, A15A0457. THE STATE v. BROWN, et al.



      ELLINGTON, Presiding Judge.

      The Superior Court of Fulton County entered directed verdicts of acquittal in

favor of Javaris Brown, Meyetta King, and Kevin Rouse on charges of trafficking in

cocaine, OCGA § 16-13-31 (a) (1) (A); possession of marijuana with intent to

distribute, OCGA § 16-13-30 (j) (1); and other violations of the Georgia Controlled

Substances Act. In Case No. A15A0457, the State appeals, contending, inter alia, that

the judgments must be vacated as having been entered when jurisdiction lay in this

Court and not in the trial court. In addition, in Case No. A15A0456, the State appeals

from two interlocutory rulings, contending that the trial court abused its discretion in

granting the defendants’ motions to exclude certain evidence as a sanction for
discovery violations and in granting the defendants’ motions to exclude evidence of

other, uncharged crimes. For the reasons explained below, we vacate the judgments

of acquittal and reverse in part the evidentiary rulings.



                                  Case No. A15A0457

       1. The trial court directed verdicts of acquittal on all counts. As a threshold

matter, therefore, we must determine whether the State has any right to appeal.

Ordinarily, the State

       may not appeal a trial court’s grant to a criminal defendant of a directed
       verdict of acquittal based on an insufficiency of the evidence to support
       a conviction, in that a new trial would be barred by the double jeopardy
       clause of the Fifth Amendment. The government cannot appeal such a
       directed verdict of acquittal, even if it is erroneously granted.


(Citations omitted.) State v. Williams, 246 Ga. 788-789 (1) (272 SE2d 725) (1980).1

In this regard, the State contends that, when the trial court called the case for trial, it

       1
         See Tolbert v. Toole, _ Ga. _ (767 SE2d 24) (2014); State v. Vansant, 208 Ga.
App. 772, 776 (2) (431 SE2d 708) (1993), reversed in part on other grounds, Vansant
v. State, 264 Ga. 319 (443 SE2d 474) (1994); State v. Fly, 193 Ga. App. 190, 191 (2)
(387 SE2d 347) (1989); State v. Warren, 133 Ga. App. 793, 795-796 (213 SE2d 53)
(1975). See also State v. Caffee, 291 Ga. 31, 33 (2) (728 SE2d 171) (2012) (“The
State does not have the right to appeal decisions in criminal cases unless there is a
specific statutory provision granting the right.”) (citation omitted).

                                            2
lacked the authority to do so. Specifically, the State contends that it was authorized

pursuant to OCGA § 5-7-1 (a) (5) to appeal from certain evidentiary rulings entered

by the trial court a few days before the scheduled trial, that it filed a notice of appeal

that was sufficient to divest the trial court of jurisdiction of the case and invest this

Court with jurisdiction (Case No. A15A0456), and that the trial court will be

reinvested with jurisdiction only after this Court disposes of the pending appeal, when

we issue a remittitur and the same is filed in the trial court. Because the trial court

lacked jurisdiction when it called the instant case for trial, the State contends, the

judgments of acquittal must be vacated.

      The record shows the following proceedings. The defendants were arrested and

indicted in April 2014. On July 3, 2014, the State filed pursuant to OCGA § 24-4-404

(b) notice of intent to introduce evidence of other acts of Brown and Rouse.2 On

August 4, 2014, Brown filed a motion to suppress evidence seized pursuant to a

search warrant executed on April 23, 2014. On August 18, 2014, Rouse filed a motion

to suppress evidence seized on April 23, 2014, when he was detained outside the

searched premises.3

      2
          See Division 3, infra.
      3
          See Division 2, infra.

                                            3
        The trial court conducted a hearing on the evidentiary issues on August 7,

September 9, and September 10, 2014. On September 11, 2014, the trial judge signed

an order excluding certain evidence as a sanction for discovery violations and

excluding the other-acts evidence, and the clerk of court stamped the order “filed” on

September 12, 2014. The court placed the case on a trial calendar for September 17,

2014.

        On September 12, 2014, the State filed a notice of appeal in the trial court

pursuant to OCGA § 5-7-1 (a) (5). That Code section provides that in criminal cases

the State may appeal “[f]rom an order, decision, or judgment excluding any . . .

evidence to be used by the state at trial on any motion filed by the state or defendant

at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the

defendant being put in jeopardy, whichever occurs first[.]” To take such an appeal,

the State must file “the notice of appeal . . . within two days of such order, decision,

or judgment[,]” and the prosecuting attorney must “certif[y] to the trial court that such

appeal is not taken for purpose of delay and that the evidence is a substantial proof

of a material fact in the proceeding[.]” Id. On September 12, 2014, the State also filed

a separate “Certificate of Purpose” in which the prosecuting attorney stated, “I hereby

certify that the State’s appeal of this Court’s order excluding evidence as a sanction

                                           4
for discovery violations and excluding OCGA § 24-4-404 (b) evidence is not taken

for purpose of delay, and the evidence is a substantial proof of a material fact in the

proceedings.”

      The trial court called the case for trial on September 17, 2014. The State

notified the court that it had filed a notice of appeal from the September 12, 2014

rulings and argued that its notice of appeal had divested the trial court of jurisdiction

to try the case. The defendants disputed this, arguing that the State failed to comply

with the procedural requirements of OCGA § 5-7-1 (a) (5) (B). Specifically, they

argued that the Statute requires the State to serve the trial judge directly with the

required certification, that is, the State’s filing of its Certificate of Purpose in the

office of the clerk of the trial court was insufficient to certify to the trial court that

such appeal was not taken for purpose of delay and that the excluded evidence was

substantial proof of a material fact. They also argued that the State’s appeal was in

fact for purpose of delay. They argued that, given the abuse of discretion standard of

review that would be applied by this Court, the State could not prevail on appeal. The

prosecuting attorney reiterated that the appeal was not taken for purpose of delay and

stated that it was necessary to appeal the court’s evidentiary rulings because, without

the excluded evidence, the State could not carry its burden of proof at trial. The trial

                                            5
court found that, although “[t]he State filed a document purporting to be . . . [the]

certification” required by OCGA § 5-7-1 (a) (5), the State did not provide it “to the

trial court” as required. The trial court also found that the State’s purpose in appealing

was delay. The trial court ruled that the State’s appeal was invalid and that the court

would proceed with the trial.

      The defendants all announced ready for trial. The State declined to participate,

on the basis that the pending appeal divested the trial court of jurisdiction. The trial

court then impaneled a jury. The State having failed to adduce any evidence, the

defendants each moved for a directed verdict, and the trial court entered a directed

verdict of acquittal as to each defendant.

      If, contrary to the trial court’s ruling, the State’s September 12, 2014 notice of

appeal was effective under OCGA § 5-7-1 (a) (5), then that notice of appeal deprived

the trial court of jurisdiction to try the defendants until the State’s appeal was

resolved and the trial court received the remittitur from this Court. Chambers v. State,

262 Ga. 200, 201-202 (1), (2), (3) (415 SE2d 643) (1992) (holding that the State’s

appeal of an order suppressing evidence deprived the trial court of jurisdiction to try

the accused and any proceeding so conducted in the trial court was coram non judice

and vacating the resulting judgment and that the return of the remittitur reinvests the

                                             6
trial court with jurisdiction).4 Although a notice of appeal must be filed in the trial

court, the appellate court “alone has the authority to determine whether such filing is

sufficient to invoke its jurisdiction.” (Citation and punctuation omitted.) Hughes v.

Sikes, 273 Ga. 804, 805 (1) (546 SE2d 518) (2001). Thus, we owe no deference to the

trial court’s analysis of whether the State’s notice of appeal from the court’s

evidentiary rulings was effective.

      In this case, it is undisputed that the State filed its notice of appeal from the

trial court’s evidentiary ruling within two days after the ruling was entered, that is,

the date a written judgment was received and stamped “filed” by the clerk of the trial

court. See OCGA § 5-6-31 (“The filing with the clerk of a judgment, signed by the

judge, constitutes the entry of a judgment within the meaning of [the Appellate

Practice Act].”); In the Interest of K. D., 272 Ga. App. 803, 805 (613 SE2d 239)

(2005); Brown v. Webb, 224 Ga. App. 856, 857 (482 SE2d 382) (1997).5 Further, it

is undisputed that the State filed with the clerk of the trial court a certification

      4
        See also Styles v. State, 245 Ga. App. 90, 92 (537 SE2d 377) (2000)
(Blackburn, P.J., specially concurring) (explaining that the supersedeas resulting from
an appeal in a criminal case applies to all “proceedings which either require a ruling
on the matters on appeal or directly or indirectly affect such matters”).
      5
       See also Christopher J. McFadden et al., Ga. Appellate Practice, § 10.3
(updated November 2014).

                                          7
executed by the prosecuting attorney, who is an officer of the court, that the appeal

was not taken for purpose of delay and that the evidence excluded in the appealed

rulings was material. We conclude that this was sufficient to invoke the jurisdiction

of this Court.6 We find no basis for concluding that the prosecuting attorney’s

certification of purpose and necessity “to the trial court” can only be satisfied by

personally serving the judge presiding over a case.7 When the General Assembly has

intended that certain communications be made personally to a judge – as compared

to matters that are to be submitted to a trial court as a governmental entity and made

part of the official court records by filing in the office of the clerk of court – it has so

provided.8 Moreover, it is undisputed that, before the trial judge moved forward with


       6
        See OCGA § 5-7-2 (b) (1) (A certificate of immediate review shall not be
required to appeal from an order suppressing or excluding evidence under OCGA §
5-7-1 (a) (5).).
       7
        See OCGA § 5-7-6 (“This chapter[, that is, OCGA §§ 5-7-1 through 5-7-6,]
shall be liberally construed to effectuate the purposes stated in this chapter.”).
       8
        See OCGA §§ 17-7-170 (“[A] demand for speedy trial shall be filed with the
clerk of court and served upon the prosecutor and upon the judge to whom the case
is assigned or, if the case is not assigned, upon the chief judge of the court in which
the case is pending.”); 44-14-161 (a) (“When any real estate is sold on [nonjudicial]
foreclosure. . . , no action may be taken to obtain a deficiency judgment unless the
person instituting the foreclosure proceedings shall, within 30 days after the sale,
report the sale to the judge of the superior court of the county in which the land is
located for confirmation and approval and shall obtain an order of confirmation and

                                             8
impaneling a jury in this case, the prosecuting attorney personally informed the judge

of the pending appeal, on the record and in open court. There is no issue of any lack

of actual notice. Finally, even if this Court were inclined to question the prosecuting

attorney’s representation that the State did not file its appeal from the trial court’s

evidentiary rulings for purpose of delay, we find no support in the record for finding

that delay was the State’s purpose, especially in light of the fact that the trial court’s

pretrial rulings excluded virtually all of the inculpatory evidence that the State

planned to offer9 and effectively doomed the entire prosecution.

      For the foregoing reasons, we conclude that the State’s pretrial notice of appeal

was effective and deprived the trial court of jurisdiction to try the defendants pending

resolution of the appeal. State v. Vansant, 208 Ga. App. at 776 (2), affirmed in

relevant part, Vansant v. State, 264 Ga. at 319 (3). Because the trial court lacked

jurisdiction to proceed with a trial of the defendants, such proceedings were without


approval thereon.”). See also Uniform Superior Court Rules 16.1 (A notice of an
attorney’s leave of absence shall be submitted to the clerk of the court and, in
addition, “[a] copy of the notice shall be sent, contemporaneously, to the judge before
whom an action is pending and all opposing counsel.”); 17.1 (B) (A written notice of
an attorney’s conflict shall be given “to opposing counsel, to the clerk of each court
and to the judge before whom each action is set for hearing (or, to an appropriate
judge if there has been no designation of a presiding judge).”).
      9
          See Divisions 2 and 3, infra.

                                            9
legal effect and the directed verdicts of acquittal are void. Chambers v. State, 262 Ga.

at 201-202 (2). The final order of acquittal of all defendants is hereby vacated, and

we turn to the underlying appeal.

                                  Case No. A15A0456

      2. The State contends that the trial court abused its discretion in granting the

defendants’ motion to exclude certain evidence, which was seized when investigators

executed a search warrant, based on the court’s finding that the State violated its

reciprocal discovery obligations.

      When a criminal defendant elects to engage in reciprocal discovery under

Georgia’s Criminal Procedure Discovery Act, the State and the defendant are required

to produce certain types of evidence and information. See OCGA § 17-16-1 et seq.

If it comes to the attention of the trial court that either the State or the defendant has

failed to comply with the requirements of the Act, the court has wide latitude in

fashioning a remedy for such violation. OCGA § 17-6-6; Wilkins v. State, 291 Ga.

483, 486-487 (5) (731 SE2d 346) (2012); Leger v. State, 291 Ga. 584, 588 (2) (b)

(732 SE2d 53) (2012); Jones v. State, 290 Ga. 576, 577-578 (2) (722 SE2d 853)

(2012). As we have noted, this broad discretion allows such remedy as is warranted

“to ensure a fair trial.” (Citation omitted.) Blankenship v. State, 229 Ga. App. 793,

                                           10
794 (494 SE2d 758) (1997). See Burton v. State, - Ga. App. - (Case No. A14A1864,

decided December 18, 2014) (accord). For example, when the State violates the Act

by failing to timely identify a witness, “[i]t is usually a sufficient remedy for the

defense to be afforded an opportunity to interview the witness.” (Citation and

punctuation omitted.) Leger v. State, 291 Ga. at 588 (2) (b). Although the Act

authorizes a trial court to prohibit the State from introducing evidence that it failed

to disclose as required, “[e]xclusion of evidence is a particularly harsh sanction and

should be imposed only where there is a showing of prejudice to the defendant and

bad faith by the State.” (Citation and punctuation omitted.) Id. at 586 (2). “[T]he

remedy a trial court fashions to cure a discovery violation is reviewed on appeal only

for abuse of discretion.” (Citation omitted.) Jones v. State, 290 Ga. at 578 (2).

      The record shows the following. In early 2014, the Atlanta Police Department

received information that illegal drugs were being sold out of 1808 Brewer

Boulevard, a single-family house. An investigator arranged for a confidential source

to buy cocaine and marijuana there, on April 7 and April 16. After the second

controlled buy, the investigator obtained a search warrant for the premises. A team

executed the search warrant on April 23, 2014. When the team arrived, Rouse was

beside his car in the driveway, and Brown and King were inside the house. Brown

                                          11
jumped out of a window and was immediately captured. Officers found a total of over

50 grams of cocaine, 9.72 grams of marijuana, and three scales in the kitchen and

10.27 grams of cocaine in one of the bedrooms. Officers arrested Brown and King.

In a search incident to that arrest, officers found 11.51 grams of a Schedule 1

controlled substance10 in Brown’s sock. King told officers that Rouse had been selling

drugs from the house. Officers then searched Rouse and seized a large quantity of

cash that he had in his pocket and 16.81 grams of heroin that was concealed in his

underwear.

      In their motions to suppress all evidence seized as a result of the search, the

defendants argued that the issuance of the search warrant was not supported by

probable cause, that they were merely present in the house at the execution of the

warrant, and that there was not probable cause to arrest them. Before the hearing on

the motions to suppress, the State represented to the trial court that it had provided

discovery to the defendants. At the motions hearing on August 7, 2014, the State

advised the court that investigators had recorded the execution of the search warrant,

but the State had not produced the recording to the defendants. The court suspended



      10
           See OCGA § 16-13-25 (3) (DDD) (ethylone).

                                         12
the hearing to allow the State to make a supplemental discovery response and to allow

the defendants an opportunity to review the recording.

      The hearing resumed on September 9, 2014. During the State’s direct

examination of the investigator who obtained the search warrant, the prosecutor asked

whether the investigator had conducted surveillance on 1808 Brewer Boulevard

before arranging for controlled purchases by her confidential source. The investigator

replied that she had gone to the house twice in the weeks before the controlled buys.

She saw some people going in and out of the house but could not determine what they

were doing there. When asked whether she included information about the

surveillance in her affidavit in support of her application for a warrant, the

investigator responded, “I think I just have it in my . . . personal notes,” but testified

that she had discussed the surveillance with the magistrate who handled the warrant

application. Defense counsel cross-examined the investigator about her surveillance

and whether she had written down information about the surveillance and turned it

over to the State. The investigator responded that she had written it down but had not

turned it over to the State. At this point, the trial court asked where the investigator

“maintain[ed] a log about the surveillance[,]” and the investigator replied, “on the

computer. We just type our own notes.” The trial court asked whether defense counsel

                                           13
wanted “time with [those] notes” before proceeding with the hearing and, when they

said they did, suspended the hearing to allow the State to “get the notes off the

computer” and produce them to the defendants.

      When the hearing reconvened the following day, the prosecuting attorney

reported that the investigator had searched her computer and her files and had

prepared a narrative summary of everything she could remember about the

surveillance. The investigator testified that she had used the wrong terminology in

referring to a “log” or “personal notes” and that the only thing that she had typed on

the computer was her investigative summary, which she created and then added to as

her investigation progressed. She had provided that document to the State, and the

prosecuting attorney had previously produced it to the defendants. According to the

investigator, the only notes that she had ever created in connection with the case that

she had not provided to the State were handwritten on scraps of paper and were

limited to a description of the house and “what [she] saw that day,” which was

information she needed to include in her warrant application and affidavit. After she

had transcribed this information verbatim into her warrant application, the

investigator had discarded those scraps of paper; they were not part of the State’s

discovery production.

                                          14
      The trial court stated to the prosecuting attorney, “the State is responsible for

everything that law enforcement has. So it is the State’s obligation to get it, determine

whether it is discoverable, determine whether it is Brady material, and produce it. .

. . When law enforcement has [information], the State has it.”11 The trial court then

instructed the investigator “for future reference,” that

      when a case gets indicted . . . everything counts[.] Your scrap notes,
      your personal notes, everything associated with that case . . . is subject
      to discovery[.] And[,] when you don’t produce it, it puts everyone,
      including the State, because they’re responsible for producing it, in a
      position where folks start [wondering], [“]well, what are they hiding . .
      . , what got covered up, what else don’t we know[?”] . . . It puts me in
      a position where I have to decide whether there’s been intentional
      misconduct[.] And if there’s been intentional misconduct, [evidence]
      gets thrown out[,] because the Constitution pretty much says that’s what
      happens when there’s intentional misconduct[:] it gets held against the
      State. So when you testify under oath there are notes on the computer
      and then[,] the next day, there are no notes on the computer, that’s a
      problem.


The court found that “the failure to preserve notes pertinent to the case . . . raise[d]

an issue of spoliation.” Taking this together with the delayed production of the



      11
           See Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1962).

                                           15
recording of the execution of the search, the trial court found a “pattern of failure [of

the State] to provide full discovery.” The court found that this pattern of behavior was

“grossly unfair” and “violate[d] these folks’ rights.” On this basis, the trial court

granted the motions to suppress everything seized in executing the search warrant.

The trial court expressly found, however, that the warrant was supported by probable

cause and was properly executed and ruled that the suppression was “for reasons

independent of the validity of the warrant itself.”

      Although, as posited by the trial court, when law enforcement has information,

the State is deemed to have it for purposes of the reciprocal discovery Act,12 this does

not mean, as the trial court went on to conclude, that “everything associated with [a]

case . . . is subject to discovery.” The Act specifies materials that must be produced,

including statements attributable to the defendant;13 pictures, documents, and tangible

evidence “intended for use by the prosecuting attorney as evidence” at trial;14 results



      12
         See OCGA § 17-16-1 (a) (“‘Possession, custody, or control of the state or
prosecution’ means an item which is within the possession, custody, or control of the
prosecuting attorney or any law enforcement agency involved in the investigation of
the case being prosecuted.”).
      13
           OCGA § 17-16-4 (a) (1).
      14
           OCGA § 17-16-4 (a) (3).

                                           16
or reports of physical or mental examinations and of scientific tests or experiments,

again, if intended for use by the prosecuting attorney at trial;15 and any statement of

any witness that the prosecuting attorney intends to call as a witness at trial and that

relates to the subject matter of the witness’s testimony.16 See White v. State, 271 Ga.

130 (518 SE2d 113) (1999). The purpose of the Act is to promote fairness and

efficiency in criminal proceedings and to prevent so-called “trial by ambush.”17 We

find no basis for concluding that the Act requires every member of law enforcement

to preserve “everything associated with [every] case,” including informal notes

created by an investigator only for the purpose of helping the investigator include


      15
           OCGA § 17-16-4 (a) (4).
      16
           OCGA § 17-16-7.
      17
          State v. Dickerson, 273 Ga. 408, 410 (1) (542 SE2d 487) (2001) (“The
purpose of the Act is to establish a closely symmetrical scheme of discovery in
criminal cases that maximizes the presentation of reliable evidence, minimizes the
risk that a judgment will be predicated on incomplete or misleading evidence, and
fosters fairness and efficiency in criminal proceedings.”) (citation and punctuation
omitted); White v. State, 271 Ga. at 130 (“The purpose of the act is to prevent surprise
and trial by ambush[.]”) (footnote omitted). See also Jones v. State, 276 Ga. 171, 174-
175 (575 SE2d 456) (2003) (“Contrary to the view of some, our legal system is not
simply an elaborate game of ‘Gotcha!’ This Court does not endorse acquittal by
ambush on the part of a defendant any more than it does trial by ambush on the part
of the State. Nor do we condone induced error. The object of all legal investigation
is the truth, and procedural rules are in place to further such goal in an orderly
fashion.”) (citation and punctuation omitted).

                                          17
accurate information in a warrant application.18 The record does not show that the

investigator’s informal notes, which the State could not produce, were subject to

discovery under any of the provisions of the Act.19 We conclude, therefore, that the

trial court abused its discretion in imposing the extreme sanction of evidence

exclusion for the State’s failure to produce the investigator’s notes.

       3. The State contends that the trial court erred in ruling that the State’s intended

evidence of other crimes was not relevant for a proper purpose and abused its

discretion in granting the defendants’ motion to exclude the evidence on that basis.




       18
        Cf. OCGA §§ 17-5-55 (retention of property that is introduced into evidence
during the pendency of a criminal case); 17-5-56 (a) (preservation of physical
evidence collected at the time of a crime that contains biological material relating to
the identity of the perpetrator of the crime).
       19
         To the extent the appellees suggest that the notes may have been exculpatory,
they have not articulated how the investigator’s description of the activity she
observed during her surveillance could have been exculpatory. A finding of a Brady
violation, that is, that the State failed to disclose evidence that is both favorable to the
accused and material either to guilt or to punishment, Brady v. Maryland, 373 U. S.
at 87, cannot be based on mere speculation. Williams v. State, 251 Ga. 749, 789 (7)
(312 SE2d 40) (1983); Jones v. State, 276 Ga. App. 728, 730-731 (624 SE2d 275)
(2005); Pinson v. State, 266 Ga. App. 254, 263-264 (8) (596 SE2d 734) (2004);
Nikitin v. State, 257 Ga. App. 852, 854 (1) (a) (572 SE2d 377) (2002); Merritt v.
State, 248 Ga. App. 709, 713-714 (3) (548 SE2d 427) (2001).

                                            18
      Georgia’s new Evidence Code governs this contention.20 OCGA § 24-4-404 (b)

of the new Code 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.


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, Rules 403 and 404 (b) of the Federal Rules

of Evidence. See Bradshaw v. State, - Ga. - (3) (Case No. S14A1365, decided March

2, 2015).21 Like the Eleventh Circuit Court of Appeals, Georgia’s courts apply a


      20
        See Ga. L. 2011, p. 99, §§ 2, 101 (Georgia’s new Evidence Code, OCGA §
24-1-1 et seq., applies to any motion, hearing or trial commenced on or after January
1, 2013.).
      21
             Our new Evidence Code was based in large part on the Federal Rules of
             Evidence. And where the new Georgia rules mirror their federal
             counterparts, it is clear that the General Assembly intended for Georgia
             courts to look to the federal rules and how federal appellate courts have
             interpreted those rules for guidance. Thus, the uncodified first section

                                          19
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.” (Citation, punctuation, and footnote omitted.)

Bradshaw v. State, - Ga. at - (3).22 A trial court’s decision to admit or exclude


             of the statute enacting the new Evidence Code explains: 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, modernize,
             and reenact the general laws of this state relating to evidence while
             adopting, in large measure, the Federal Rules of Evidence.
(Citations and punctuation omitted.) Parker v. State, - Ga. - (3) (Case No. S14G1005,
decided February 16, 2015).
      22
         See Chynoweth v. State, - Ga. App. - (3) (768 SE2d 536) (2015) (accord);
Curry v. State, 330 Ga. App. 610 (1) (768 SE2d 791) (2015) (accord); Jones v. State,
326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014), cert. granted, (accord). We note
that a somewhat different three-part test applied under prior law, but that test also
required the State to show that the evidence was relevant to an issue other than the
defendant’s character. See Peoples v. State, 295 Ga. 44, 54 (4) (b) (757 SE2d 646)
(2014) (Under prior law, the State bore the burden of showing that “the independent
offense or act [was] offered not to raise an improper inference as to the accused’s
character, but for some appropriate purpose which has been deemed to be an

                                           20
evidence under Federal Rules of Evidence 403 and 404 (b), as incorporated into

Georgia’s new Evidence Code, is reviewed for “a clear abuse of discretion.” (Citation

and punctuation omitted.) Bradshaw v. State, - Ga. at - (3). See also Reeves v. State,

294 Ga. 673, 676 (2) (755 SE2d 695) (2014)”(Evidentiary rulings are reviewed under

an abuse of discretion standard[.]”) (citation omitted).

      In this case, the record shows that the State filed its notice of intent to introduce

evidence of other acts pursuant to OCGA § 24-4-404 (b) as proof of intent, motive,

plan, and absence of mistake or accident. Specifically, the State identified the

following acts: a 2005 charge against Brown and Rouse for trafficking in cocaine and

a 2009 charge against Brown for possession of marijuana with intent to distribute.

      As to the 2005 incident, a police officer testified that he received information

from a concerned citizen that drugs were being “bagged” at a house in Fulton County.

Upon arriving at the house, the officer observed through one of the windows three

men, including Brown and Rouse, cutting and packaging crack cocaine and marijuana

in the kitchen of the house. The team of officers forced entry and found the men

exception to the general rule of inadmissibility[.]” In addition, the State was required
to show that the accused committed the independent offense or act and that 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.) (citation and
punctuation omitted).

                                           21
hiding in a bedroom closet. The house, which was in an area where most of the

houses were vacant, had little furniture, but there was a TV with some cameras

hooked to it. The officers seized 137 grams of crack cocaine and 11 grams of

marijuana.

      As to the 2009 incident, a patrol officer testified that he received a call that

several men were selling and using drugs at a food mart in Fulton County. The officer

went to that location, where he saw six men including Brown. The officer and his

partner obtained the mens’ consent to search their persons. Brown had on his person

11 bags of marijuana, collectively weighing 8.1 grams.

      After hearing this evidence, the trial court found that the only relevance of the

2005 and 2009 incidents to the charges in the instant prosecution was as evidence of

a propensity, “that one does that sort of thing.” The court found that, as such, the

other-acts evidence was inadmissible for the purposes propounded by the State. The

State argues that “[t]he overarching tenet of Georgia’s new evidence code is one of

inclusion of evidence, and that tenet extends to OCGA § 24-4-404 (b), which now

governs the admissibility of other crimes, wrongs, or acts.” Under this tenet of

inclusion, the State contends that the other-acts evidence at issue is relevant to an



                                         22
issue other than the defendants’ character because the prior uncharged offenses

involved the same mental state as the instant offenses.

      The State’s argument glosses over the significant exclusionary impact of the

prohibition against propensity evidence that survives in OCGA § 24-4-404 (b). Our

new rule, like the federal rule, embodies the longstanding and fundamental principle

that evidence of a person’s other acts is inadmissible for the purpose of showing that

the person has a criminal disposition or a propensity for certain conduct because of

the risks inherent in such evidence in compromising the presumption of innocence

and the reasonable doubt standard.23 If the only way to find that other-

      23
         See generally Paul S. Milich, “The Degrading Character Rule in American
Criminal Trials,” 47 Ga. L. Rev. 775, 777 (2013) (The traditional common law
character rule, which appeared in English courts during the Restoration Period and
around the same time as the hearsay rule, prohibited use of the accused’s bad
character or prior, unrelated misconduct to suggest that he or she therefore was more
likely guilty of the crime charged.). As the Unites States Supreme Court explained
more than half a century ago:
       The State may not show defendant’s prior trouble with the law, specific
       criminal acts, or ill name among his neighbors, even though such facts might
       logically be persuasive that he is by propensity a probable perpetrator of the
       crime. The inquiry is not rejected because character is irrelevant; on the
       contrary, it is said to weigh too much with the jury and to so overpersuade
       them as to prejudge one with a bad general record and deny him a fair
       opportunity to defend against a particular charge. The overriding policy of
       excluding such evidence, despite its admitted probative value, is the practical
       experience that its disallowance tends to prevent confusion of issues, unfair
       surprise and undue prejudice.

                                         23
acts evidence is relevant for a permissible purpose is by inferring that the defendant

had a propensity to commit such a crime, OCGA § 24-4-404 (b) requires that the

evidence be excluded.24


(Footnotes omitted.) Michelson v. United States, 335 U. S. 469, 475-476 (69 SCt 213,
93 LEd 168) (1948). See also Amey v. State, - Ga. App. - (1) (Case No. A14A1803,
decided March 18, 2015) (accord); United States v. Clay, 667 F3d 689, 697 (B) (6th
Cir. 2012) (“As empirical studies have shown, evidence of prior bad acts influences
factfinders even when the court gives a limiting instruction.” Where the nature of
other-crimes evidence suggested that the accused was “a repeatedly violent
offender[,]” the evidence “created a serious risk that the jury used the evidence for
precisely the reasons it was counseled not to: that [he] was a bad person and a threat
to society. Thus, the unfair prejudicial impact of the evidence substantially
outweighed its slim probative value.”) (citations and punctuation omitted).
      24
          See United States v. Clark, 774 F3d 1108, 1114-1115 (II) (B) (7th Cir. 2014);
(“[T]he proponent of the [other-acts] evidence must first establish that the other act
is relevant to a specific purpose other than the person’s character or propensity to
behave in a certain way through a chain of reasoning that does not rely on the
forbidden inference that the person has a certain character and acted in accordance
with that character on the occasion charged in the case. If that is done, the court must
assess whether the probative value of the other-act evidence is substantially
outweighed by the risk of unfair prejudice, and this balancing should take account of
the extent to which the non-propensity fact for which the evidence is offered actually
is at issue in the case.”) (citations and punctuation omitted); United States v. Stacy,
769 F3d 969, 974 (II) (A) (7th Cir. 2014) (“Other-act evidence need not be excluded
whenever a propensity inference can be drawn. But its relevance to another purpose
must be established through a chain of reasoning that does not rely on the forbidden
inference that the person has a certain character and acted in accordance with that
character on the occasion charged in the case.”) (citation and punctuation omitted);
United States v. Procopio, 88 F3d 21, 29 (III) (1st Cir. 1996) (“If evidence supports
a chain of inference independent of any tendency of the evidence to show bad
character, it is said to have ‘special relevance’ and not barred by Rule 404.”) (citation

                                           24
      As noted above, the State asked the trial court to admit the other-acts evidence

pursuant to OCGA § 24-4-404 (b) to show intent, motive, plan, and absence of

mistake or accident. With regard to intent, the Supreme Court of Georgia recently

explained that

      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 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



and punctuation omitted); United States v. Ferrer-Cruz, 899 F2d 135, 137 (2) (1st
Cir. 1990) (“[A] trial court can admit . . . evidence of past bad acts only if the
evidence survives two related tests. First, it must overcome the absolute bar of Fed.
R. Evid. 404 (b), which excludes evidence of a past bad act where it is relevant only
because it shows bad character (i.e., the proposed logical inference includes character
as a necessary link). Second, it must also survive scrutiny under Fed. R. Evid. 403,
which excludes even evidence that is relevant through allowable chains of inference
where the probative value of that evidence is substantially outweighed by the risks
of prejudice, confusion, or waste of time.”) (citations, punctuation and emphasis
omitted); United States v. Rubio-Estrada, 857 F2d 845, 853 (II) (1st Cir. 1988),
Torruella, J., dissenting (Rule 404 (b) “admits evidence of other crimes whenever it
is relevant without using the inference of character anywhere in the chain of
inference. . . . [T]he rule excludes evidence of other crimes in any case in which one
of the inferences in the chain of circumstantial evidence is the inference from the act
to the defendant’s character or propensity to commit crimes.”) (citations, punctuation,
and footnotes omitted).

                                          25
       required for the charged and extrinsic offenses is the same, the first
       prong of the Rule 404 (b) test is satisfied.


(Citation and punctuation omitted.) Bradshaw v. State, - Ga. at - (3). We are mindful,

however, that the intent exception must not be allowed to swallow the general rule

against admission of prior bad acts.25 As we have explained, to determine whether

       25
             See United States v. Miller, 673 F3d 688, 697 (III) (7th Cir. 2012) (“[I]f a
mere claim of innocence were enough to automatically put intent at issue, the
resulting exception would swallow the general rule against admission of prior bad
acts. . . . [I]dentifying a Rule 404 (b) exception, such as intent, that is ‘at issue’ is only
the first step of the analysis.”) (citations omitted); United States v. Matthews, 431 F3d
1296, 1314, n.1 (11th Cir. 2005), Tjoflat, J., specially concurring (Where other-acts
evidence “demonstrates nothing more than . . . a prior intention to violate drug laws[,]
it must be excluded as inadmissible propensity evidence. If the inferential chain must
run through the defendant’s character – and his or her predisposition towards a
criminal intent – the evidence is squarely on the propensity side of the elusive line”
between evidence admissible to demonstrate intent and inadmissible evidence of
propensity.); Paul S. Milich, “The Degrading Character Rule in American Criminal
Trials,” 47 Ga. L. Rev. at 796-797 (It is important to protect the presumption of
innocence for those with a criminal past, in part, because jurors “are a major check
against police and prosecutorial abuse, laziness, and incompetence. Anything that
encourages the jury to scrutinize the prosecution’s case carefully and skeptically
likewise encourages the police and prosecution to rise to the task. To the extent that
evidence of the accused’s bad character makes it easier to convict, it is undesirable
for police or prosecutors to factor that advantage into their decisions as to who and
how to investigate, arrest, or prosecute.” In addition, the introduction of evidence of
past bad acts discourages jurors from erring on the side of acquittal. “This is the heart
of the moral-political argument for the character rule: we want jurors, in all cases, to
exercise the most heightened scrutiny of the state’s evidence, to give the benefit of
the doubt and then some to a fellow citizen who stands in jeopardy of tasting the
state’s awesome power to take away that citizen’s liberty. The very idea that we

                                             26
intent is actually in issue in a case, “[t]he test is to ask: under the facts of the case, is

there any danger that a rational jury could find that although the defendant committed

the objective, charged acts, he did not intend to do so?” (Citation and punctuation

omitted.) Chynoweth v. State, - Ga. App. - (3) (768 SE2d 536) (2015).

       With regard to motive, which “has been defined as the reason that nudges the

will and prods the mind to indulge [a] criminal intent[,]”26 other-acts evidence may

be admitted to show the defendant’s motive for committing the crime with which he

is charged, but such evidence may not be admitted

       to demonstrate a propensity to act in accordance with the character
       indicated by that other crime or conduct. . . . [T]he fact that the accused
       has committed one kind of crime in the past does not, without more,
       prove his motive to commit the same kind of crime again. Such logic
       would make all prior robberies admissible in any robbery case, all prior
       murders admissible in any murder case, and so on.


(Citations and punctuation omitted.) Amey v. State, - Ga. App. - (1) (b) (Case No.

A14A1803, decided March 18, 2015). For example, evidence that the defendant had

been threatened with violence for nonpayment of a debt incurred in a drug transaction


neither need nor desire such a vigilant jury when the defendant has a criminal history
violates the most basic notions of equal protection.”) (footnotes omitted).
       26
            (Citation and punctuation omitted.) Bradshaw v. State, - Ga. at - (3).

                                             27
may establish impecuniousness or an imminent financial burden on the defendant as

a motive for robbery. Id.

      In this case, the State’s proffer at the hearing on the other-acts evidence

authorized the trial court to find that the jury could only use the evidence to find that

Brown and Rouse had intended to deal drugs before and, therefore, the jury could

believe they were more likely to have the intent, motive, and plan to deal drugs again.

This is precisely the circumstantial chain that is prohibited since all that it proves is

that, because there is some evidence that they dealt drugs in the past, they are likely

to have committed the present crime. The only logical link between the two allegedly

common mental states is the defendants’ alleged propensity towards dealing in drugs.

See United States v. Matthews, 431 F3d 1296, 1314, n.1 (11th Cir. 2005), Tjoflat, J.,

specially concurring; United States v. Rubio-Estrada, 857 F2d at 853 (II), Torruella,

J., dissenting. Because the State failed to explain how a jury could find, in light of the

prior acts, that it is more likely that the defendants had the intent, motive, or plan to

traffick in cocaine and to possess marijuana with intent to distribute without using the

inference of character anywhere in the chain of inference, the trial court did not abuse

its discretion in ruling that the evidence of past crimes was inadmissible under OCGA

§ 24-4-404 (b). Amey v. State, - Ga. App. at - (1) (b); Ashley v. State, - Ga. App. - (2)

                                           28
(Case No. A14A1848, decided March 30, 2015) (decided under analogous provisions

of the former Evidence Code). See Thompson v. State, - Ga. App. - (1) (Case No.

A14A2161, decided March 30, 2015) (A proper application of the abuse-of-discretion

review recognizes the range of possible conclusions the trial judge may reach, and

there will be occasions in which the appellate court will affirm the evidentiary ruling

of a trial court even if the appellate court might have ruled otherwise had the

admissibility of the evidence been its call to make.) (citation and punctuation

omitted); United States v. Wilson, 605 F3d 985, 1023 (VI) (D. C. Cir. 2010) (An

appellate court reviews a trial court’s decision whether to admit other-acts evidence

“for abuse of discretion” and “give[s] much deference to the [trial] court’s decision.”)

(citations and punctuation omitted); United States v. Cassell, 292 F3d 788, 792 (D.C.

Cir. 2002) (accord); United States v. Rubio-Estrada, 857 F2d at 846 (I) (“[C]urrent

law, as embodied in the Federal Rules of Evidence and numerous precedents

interpreting those rules, gives the [trial] court, not [the appellate] court, the power to

decide whether or not to admit a [defendant’s] prior conviction.”) (emphasis

omitted).27

      27
         Cf. Bradshaw v. State, - Ga. at - (3) (Where the defendant was charged with
murdering a drug buyer who balked at paying for drugs the defendant had delivered,
another incident, six months earlier, when the defendant murdered another drug buyer

                                           29
      Judgment affirmed in part and reversed in part in Case No. A15A0456.

Judgment vacated in Case No. A15A0457. Dillard, J., concurs fully in Divisions 1

and 2, and in judgment only in Division 3. McFadden, J., concurs fully and specially.




who refused to pay for drugs his brother had delivered involved the same mental state
and showed the defendant’s willingness to use violence when he or someone close
to him was cheated in a drug deal. Consequently, the trial court did not abuse its
discretion in admitting evidence of the earlier murder for the purpose of showing the
defendant’s intent and motive to commit the later crime.); Chynoweth v. State, - Ga.
App. at - (3) (Where the defendant was charged with riot in a penal institution and
obstruction of a law enforcement officer, based on his attack on two law enforcement
officers who were transporting him to a hearing, there was evidence that the
defendant had been prescribed antipsychotic medication, and the defendant raised
defenses concerning lack of mental capacity and mental illness, there was a disputed
issue concerning the defendant’s state of mind and a danger that “a jury could have
concluded that[,] while he committed the charged act, he did not intend to do so.”
Consequently, the trial court did not abuse its discretion in permitting other-acts
evidence of the defendant’s unprovoked attack on a cellmate for the purpose of
showing his intent and the absence of mistake or accident.) (citation omitted).

                                         30
 A15A0456; A15A0457. THE STATE v. BROWN, et al.



      DILLARD, Judge, concurring specially.

      I concur fully as to Divisions 1 and 2 of the majority’s opinion. I concur in

judgment only as to Division 3 because I do not agree with all that is said in that

division of the majority opinion. Thus, the majority’s opinion in Division 3 decides

only the issues presented in that division and may not be cited as binding precedent

in future cases. See Court of Appeals Rule 33 (a).
 A15A0456, A15A0457. THE STATE v. BROWN, et al.



      MCFADDEN, Judge, concurring.

      I concur fully in the majority opinion. I write separately to lament the ease with

which this spectacle - an unauthorized criminal trial that the prosecutor was

compelled to boycott leading to ineffective acquittals that an appellate court must

unwind - could have been avoided.

      When this case was called for trial, the state told the trial court that it had

appealed her suppression order. The trial court erroneously replied that the state’s

notice of appeal was ineffective. At noon that same day, the state filed an emergency

motion with this court. Less than four-and-a-half hours later, we granted the

emergency motion and stayed the trial. But by that time, the purported trial had taken

place and the purported acquittals had been entered.
