                                THIRD DIVISION
                                DILLARD, P. J.,
                             GOBEIL and HODGES, 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


                                                                    September 9, 2019




In the Court of Appeals of Georgia
 A19A1117. CHAMBERS v. THE STATE.

      DILLARD, Presiding Judge.

      Following trial, a jury convicted Eric L. Chambers on one count of aggravated

assault, one count of false imprisonment, and one count of battery. Chambers appeals

his convictions, arguing that the trial court erred in admitting the victim’s prior

inconsistent statement and his own prior bad acts into evidence. For the reasons set

forth infra, we affirm.

      Viewed in the light most favorable to the jury’s verdict,1 the evidence shows

that in the early evening of October 25, 2016, a 911 dispatcher with the Athens-

Clarke County Police Department received a call from a woman, later identified as

S. P., who claimed that her fiancé—Chambers, with whom she resided—attacked her

      1
          See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
after she confronted him about his drug use. Crying and obviously upset, S. P.

explained that Chambers struck her in the face, tried to strangle her, and ultimately

tied her to their bed to prevent her from leaving the home. S. P. begged the dispatcher

to send an ambulance and expressed fear that Chambers was trying to get back into

the house.

      Shortly thereafter, a police officer arrived at S. P.’s residence and found her

being treated in the back of an ambulance by EMTs, who arrived just a few minutes

earlier. S. P. again stated that Chambers—who left the residence after the

assault—had beaten her and tied her up with belts. And while the first officer

continued questioning S. P., a forensics detective went inside the home and took

photographs, which depicted the bedroom in disarray with broken glass and several

belts laying on the floor and draped across the bed’s footboard. Subsequently, both

the officer and detective met a still visibly upset S. P. at the hospital, where the

detective took photographs documenting her swollen face and eyes, abrasions on her

neck, and significant carpet burns on her arms and legs.

      Meanwhile, a sheriff’s deputy—who had been alerted to the assault—spotted

Chambers walking down the road less than a mile from the home and arrested him.

But not long after Chambers’s arrest, S. P. began contacting him via telephone and

                                          2
visiting him in jail. During those interactions, all of which were recorded, Chambers

sought to influence S. P. and discussed how she should testify about the incident. And

a little over two weeks after Chambers’s arrest, S. P. submitted a handwritten

affidavit, claiming that she falsely accused him of attacking her.

      Nevertheless, the State charged Chambers, via indictment, with one count of

aggravated assault, one count of false imprisonment, and one count of battery. And

not long afterward, the State filed a notice of its intent to introduce evidence of

Chambers’s prior act of family violence battery in 2003 under OCGA § 24-4-404 (b).

Around this same time, the State also filed a motion to admit S. P.’s prior out-of-court

statements to law enforcement, arguing that they were necessary because she would

not testify against Chambers at his upcoming probation-revocation hearing.

      The case proceeded to trial, and just before the start of jury selection, Chambers

successfully moved the trial court to allow him to proceed pro se. Then, following

jury selection, the trial court heard argument regarding the admissibility of

Chambers’s 2003 guilty plea to family violence battery against a former girlfriend

with whom he resided at the time. At the conclusion of the argument, the trial court

ruled that the evidence was admissible to prove motive and intent under OCGA § 24-



                                           3
4-404 (b) and that its probative value was not substantially outweighed by its

prejudicial effect.

      Subsequently, the State presented its case, during which the 911 dispatch

officer and the forensics detective testified, with the latter discussing the photographs

he took of the scene and S. P.’s injuries. S. P. also testified. And although she

admitted calling 911 on October 25, 2016, she denied that Chambers physically

abused her. S. P. further testified that she did not remember anything from that night

because she had been drinking and not taking her blood-pressure medication.

Additionally, S. P. denied any recollection of a 2012 incident, in which Chambers

struck her in the face. The State then presented the testimony of the law-enforcement

officer who responded to a battery-in-progress call at S. P.’s residence, who stated S.

P. claimed Chambers punched her and that he noticed injuries to her face.

      The State also presented testimony from the police officer who initially

responded to the October 25, 2016 assault and played a video of his interview of S.

P., which was recorded via the officer’s body camera. Subsequently, after the trial

court provided the jury with a limiting instruction, the State presented a former law-

enforcement officer, who testified that, on May 4, 2003, he was dispatched to a

residence Chambers shared with his then-girlfriend to investigate a domestic-violence

                                           4
report. The officer explained that, on his way to the residence, he encountered

Chambers at a nearby convenience store, and he admitted that he and his girlfriend

had an argument about child care, culminating in her hitting him in the head with

scissor handles. Chambers then confessed that he “lost it” and “beat the f*** out of

her.” Later, the officer met with the victim, who indeed had swelling to her face and

one of her eyes.

      Finally, the State presented expert testimony from a licensed social worker,

who specialized in domestic-violence prevention. Specifically, she explained that

abusers commonly use violence to exert control over their victims and that the victims

of abusive relationships often have difficulty ending the relationship and will

frequently recant reports of violence. Thereafter, the State rested its case, and at the

conclusion of the trial, the jury convicted Chambers on all three counts in the

indictment. This appeal follows.2

      1. Chambers contends that the trial court erred in admitting into evidence the

victim’s prior inconsistent statements to law-enforcement officers. Specifically, he

      2
        Although Chambers has not challenged the sufficiency of the evidence, we
have reviewed the record and find the evidence sufficient to enable a jury to conclude
beyond a reasonable doubt that he was guilty of all the crimes of which he was
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979).

                                           5
argues that S. P.’s statements claiming he attacked her, which were recorded by the

police officer’s body camera, constituted inadmissible hearsay not subject to any

exception. We disagree.

      Under OCGA § 24-6-613 (b), extrinsic evidence of a witness’s prior

inconsistent statement may be admitted so long as “the witness is first afforded an

opportunity to explain or deny the prior inconsistent statement and the opposite party

is afforded an opportunity to interrogate the witness on the prior inconsistent

statement or the interests of justice otherwise require.”3 And under OCGA § 24-8-801

(d) (1) (A),

      [a]n out-of-court statement shall not be hearsay if the declarant testifies
      at the trial or hearing, is subject to cross-examination concerning the
      statement, and the statement is admissible as a prior inconsistent
      statement or a prior consistent statement under Code Section 24-6-613
      or is otherwise admissible under this chapter.




      3
      OCGA § 24-6-613 (b); accord Brewner v. State, 302 Ga. 6, 16-17 (V) (804
SE2d 94) (2017); see also Ronald L. Carlson & Michael Scott Carlson, CARLSON
ON EVIDENCE p. 347 (6th ed. 2018).

                                          6
These evidentiary rules “retain Georgia’s former approach to a testifying witness’s

out-of-court statements.”4 Specifically, such statements are not hearsay, and, thus,

they “may be admitted for both impeachment purposes and as substantive evidence.”5

      In this matter, when asked about Chambers’s attack on her, S. P. testified that

she did not recall any of the events of the night in question, claiming that her drinking

and failure to take medications on the night in question contributed to her lack of

recall. Ultimately, she testified that Chambers had not been violent toward her. The

State then called the police officer who initially responded to the scene as a witness




      4
        McNair v. State, 330 Ga. App. 478, 482 (1) (a) (767 SE2d 290) (2014)
(punctuation omitted); accord Robbins v. State, 300 Ga. 387, 391 (2) (793 SE2d 62)
(2016); see also Ronald L. Carlson & Michael Scott Carlson, CARLSON ON
EVIDENCE p. 353 (6th ed. 2018) (noting that prior Georgia law similarly required
a demonstration of inconsistency when using a prior statement to contradict the
witness).
      5
        McNair, 330 Ga. App. at 482 (1) (a) (citation and punctuation omitted); see
Robbins, 300 Ga. at 391 (2) (holding that witness’s prior inconsistent statement could
be used as substantive evidence and for impeachment purposes); Gibbons v. State,
248 Ga. 858, 862 (286 SE2d 717) (1982) (“[A] prior inconsistent statement of a
witness who takes the stand and is subject to cross-examination is admissible as
substantive evidence, and is not limited in value only to impeachment purposes.”);
see also Ronald L. Carlson & Michael Scott Carlson, CARLSON ON EVIDENCE
p. 354 (6th ed. 2018) (noting that when the Georgia General Assembly enacted
OCGA § 24-6-613 (b) it made prior inconsistent statements substantive).

                                           7
and played a video of him questioning S. P., which was recorded by his body camera

and in which S. P. stated that Chambers punched and choked her.

      Chambers contends that the admission of the body camera video recording

failed to meet the requirements of OCGA § 24-6-613 (b), arguing that because S. P.

claimed that she could not recall the details of the night in question, she was not

actually subject to cross examination as the rule requires. But Georgia’s appellate

courts have held that “[t]he failure of a witness to remember making a statement may

provide the foundation for offering extrinsic evidence to prove that the statement was

made.”6 And here, the foundation was laid for admission of S. P.’s prior statements

to the responding officer when she gave testimony inconsistent with those statements,

was confronted with that fact, and claimed not to recall them. Accordingly, the trial

court did not err in admitting such statements.7

      6
        Brewner, 302 Ga. at 17 (V); see Hood v. State, 299 Ga. 95, 99 (2) (786 SE2d
648) (2016) (“The failure of a witness to remember making a statement, like the
witness’s flat denial of the statement, may provide the foundation for calling another
witness to prove that the statement was made.”); McNair, 330 Ga. App. at 482 (1) (a)
(holding that evidence of a witness’s claim at trial that he could not recall speaking
with the police laid the foundation for admission of the witness’s prior inconsistent
statement).
      7
        See Parks v. State, 302 Ga. 345, 348 n.3 (806 SE2d 529) (2017) (concluding
that given witness’s trial testimony that she could not recall what she said to detective
and stated her memory could not be refreshed upon being shown the statement she

                                           8
      2. Chambers also contends that the trial court erred in admitting evidence of his

prior conviction for family violence battery to show motive under OCGA § 24-4-404

(b). Again, we disagree.

      OCGA § 24-4-404 (b) 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. . . .8


And the Supreme Court of Georgia has adopted a three-part test by which we evaluate

the admissibility of so-called “other acts” evidence: “(1) the evidence must be



made, witness’s prior inconsistent statement in which she claimed defendant admitted
to murder was admissible) Brewner, 302 Ga. at 17 (V) (holding that video recordings
of detective’s interview with defendant’s girlfriend were admissible as extrinsic
evidence of girlfriend’s prior statements that were inconsistent with trial testimony,
in which girlfriend claimed defendant’s involvement in home invasion plot was
limited to introducing perpetrators and claimed not to recall telling detective
otherwise); McNair, 330 Ga. App. at 482 (1) (a) (holding that witness’s trial
testimony that he could not recall speaking to officers about his car being rented to
defendant’s accomplice provided the foundation for the admission of the witness’s
prior inconsistent statements to officers regarding the car used in armed robbery).
      8
     See also Smart v. State, 299 Ga. 414, 417 (2) (788 SE2d 442) (2016) (quoting
OCGA § 24-4-404 (b)); Ronald L. Carlson & Michael Scott Carlson, CARLSON ON
EVIDENCE p. 137 (6th ed. 2018)

                                           9
relevant to an issue other than defendant’s character; (2) the probative value must not

be substantially outweighed by its undue prejudice; [and] (3) the government must

offer sufficient proof so that the jury could find that defendant committed the act.”9

As to the first factor, relevant evidence is “evidence having 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.”10 As to the second

factor, even if Rule 404 (b) evidence is relevant, we must still decide whether “the



      9
         Smart, 299 Ga. at 417 (2) (punctuation omitted) (quoting United States v.
Ellisor, 522 F3d 1255, 1267 (II) (A) (11th Cir. 2008)); accord McWilliams v. State,
304 Ga. 502, 509 (3) (820 SE2d 33) (2018); see State v. Jones, 297 Ga. 156, 158-59
(1) (773 SE2d 170) (2015) (holding that under Rule 404 (b) the State must make a
showing that: (1) evidence of extrinsic, or other, acts is relevant to an issue other than
a defendant’s character, (2) the probative value of the other acts evidence is not
substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the
requirements of Rule 403; and (3) there is sufficient proof so that the jury could find
that the defendant committed the act in question); see also Ronald L. Carlson &
Michael Scott Carlson, CARLSON ON EVIDENCE p. 163 (6th ed. 2018) (citing
three-part test for admission of Rule 404 (b) evidence).
      10
         OCGA § 24-4-401; accord Smart, 299 Ga. at 418 (2) (a); see Jones, 297 Ga.
at 162-63 (2) (noting that evidence is relevant if the State articulates a clear
hypothesis showing that the evidence offered has any tendency to prove or disprove
the existence of any consequential fact independent of the use forbidden by Rule 404
(b)); see also Ronald L. Carlson & Michael Scott Carlson, CARLSON ON
EVIDENCE p. 162 (6th ed. 2018) (noting that Georgia courts have embraced the
philosophical interpretation of the federal courts in finding that the relevance standard
under Rule 404 (b) is a forgiving one).

                                           10
probative value of the other acts evidence is substantially outweighed by its unfair

prejudice, i.e., the evidence must satisfy the requirements of Rule 403.”11 Importantly,

application of the Rule 403 balancing test is “a matter committed principally to the

discretion of the trial courts,” but as we have explained before, “the exclusion of

evidence under Rule 403 is an extraordinary remedy which should be used only

sparingly.”12 Indeed, this Court reviews the admission of Rule 404 (b) evidence for

“a clear abuse of discretion,” a deferential review requiring us to make “a common

sense assessment of all the circumstances surrounding the extrinsic offense, including




      11
         Smart, 299 Ga. at 418 (2) (b) (punctuation omitted); accord State v. Jones,
297 Ga. 156, 159 (2) (773 SE2d 170) (2015); see also OCGA § 24-4-403 (“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.”); Ronald L. Carlson & Michael Scott Carlson, CARLSON ON
EVIDENCE 96 (5th ed. 2016) (“Under Rule 403, the term ‘unfair prejudice’ speaks
to the capacity of some concededly relevant evidence to lure the factfinder into
declaring guilt on a ground different from proof specific to the offense charged. The
prejudice referenced in Rule 403 addresses prejudice to the integrity of the trial
process, not prejudice to a particular party or witness.” (footnote omitted)).
      12
         Smart, 299 Ga. at 418 (2) (b) (punctuation omitted); Dimauro v. State, 341
Ga. App. 710, 713 (1) (801 SE2d 558) (2017); Morris v. State, 340 Ga. App. 295, 306
(4) (797 SE2d 207) (2017).

                                          11
prosecutorial need, overall similarity between the extrinsic act and the charged

offense, as well as temporal remoteness.”13

       Here, before jury selection, the State argued for the admission of Chambers’s

2003 conviction of family violence battery against his then-girlfriend, and the trial

court ruled that the evidence was admissible to show motive. And just prior to the

introduction of the evidence, the trial court provided the jury with a limiting

instruction, explaining that the State was offering evidence of Chambers’s other acts

to prove motive and that the jury was permitted “to consider [the] evidence only

insofar as it may relate to the issue of motive and not for any other purpose.”

Immediately thereafter, the police officer who responded to the 2003 incident

recounted Chambers’s admission that he struck his girlfriend and his own observation

of the girlfriend’s injuries.




       13
         Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016) (punctuation
omitted); accord Morris, 340 Ga. App. at 306-07 (4); Graham v. State, 337 Ga. App.
664, 669 (2) (788 SE2d 555) (2016); see CARLSON, supra note 7, p. 130
(“Evaluating the balance between probativity and prejudice under Rule 403 calls for
a commonsense assessment of all the circumstances surrounding the other act,
including [the] proponent’s need for the [Rule 404 (b)] evidence, the overall
similarity between the extrinsic evidence and the offense at issue, and the temporal
proximity of the two.”).

                                         12
      On appeal, Chambers contends that the trial court erred in admitting evidence

of his 2003 family violence battery conviction, arguing that the State failed to show

a common motive between that prior conduct and the charges relating to his attack

upon S. P. This argument is a nonstarter.

      As the Supreme Court of Georgia has explained, “[m]otive has been defined

as the reason that nudges the will and prods the mind to indulge the criminal intent.”14

And while motive is not an element of any of the charged offenses, the testimony of

the police officer who responded to the 2003 family violence battery incident was

relevant to help the jury understand why Chambers used violence against S. P.

Indeed, the officer explained that Chambers admitted to the battery of his former

girlfriend but claimed he did so after she confronted him about a child-care issue and

allegedly struck him with the handle of a pair of scissors. Thus, the officer’s

testimony revealed that the impetus behind the violence was control, or more

specifically, reasserting control after being challenged by his girlfriend. Relatedly, the

State’s expert testified that many domestic-violence situations involve the male

partner trying to maintain power or control over his female partner. And as the State


      14
        Smart, 299 Ga. at 418 (2) (a) (punctuation omitted); accord Harris v. State,
338 Ga. App. 778, 781 (792 SE2d 409) (2016).

                                           13
summarized in closing argument, Chambers used violence to assert his control over

S. P. when she confronted him about his drug use. Given these circumstances, the

police officer’s testimony was relevant to the State demonstrating motive, i.e., that

Chambers used violence to assert control when his authority was questioned.15

      Chambers further argues that the evidence of his 2003 family violence battery

was inadmissible because the trial court failed to weigh its prejudicial impact against


      15
          See Smart, 299 Ga. at 418 (2) (a) (holding that testimony of sister of
defendant’s ex-wife regarding prior acts of domestic violence committed by
defendant against ex-wife, in murder prosecution premised on beating death of
defendant’s current wife, was admissible under Rule 404 (b) as such testimony was
relevant to addressing motive, namely that defendant used violence to control victim);
Olds v. State, 340 Ga. App. 401, 404-05 (1) (b) (797 SE2d 661) (2017) (finding that
other acts evidence was admissible under Rule 404 (b) to show motive when both
prior acts and attack for which defendant was being tried showed that defendant
committed violent sexual assault when told by victims they would not resume a
romantic relationship); Harris, 338 Ga. App. at 412-13 (concluding that other acts
evidence of defendant’s prior convictions for family violence battery was relevant to
show motive under Rule 404 (b) in prosecution for family violence battery because
other acts evidence showed defendant’s willingness to use violence against female
victims whom he knew in an attempt to intimidate when they did not accede to his
demands as he did against the victim in his current case). Cf. Brooks v. State, 298 Ga.
722, 726-27 (2) (783 SE2d 895) (2016) (holding that evidence of prior murder was
not admissible to show motive under Rule 404 (b) because prior murder of law
enforcement officer during a prison break was not logically relevant to the murder of
a security guard during a theft); Amey v. State, 331 Ga. App. 244, 250-51 (1) (b) (770
SE2d 321) (2015) (holding that defendant’s prior robbery was not admissible to show
impecuniousness as motive for current robbery as State failed to show that defendant
had a specific need for money at the time of the prior robbery).

                                          14
its probative value. But this argument is belied by the record. In fact, at the

conclusion of the argument regarding the admissibility of the 2003 conviction, the

trial court explicitly stated that the probative value of the evidence was not

substantially outweighed by its prejudicial effect. And based on our review, the trial

court did not err in so finding.

      To determine whether relevant evidence is more probative than prejudicial, our

Supreme Court has explained that, generally speaking, “the greater the tendency to

make the existence of a fact more or less probable, the greater the probative value.”16

And it is worth reiterating that “the exclusion of evidence under Rule 403 is an

extraordinary remedy which should be used only sparingly.”17 Importantly, the major

function of Rule 403 is to “exclude matter of scant or cumulative probative force,

dragged in by the heels for the sake of its prejudicial effect.”18 Furthermore, the extent

to which evidence tends to make the existence of a fact more or less probable

      depends significantly on the quality of the evidence and the strength of
      its logical connection to the fact for which it is offered; how much it

      16
        Harris, 338 Ga. App. at 782 (punctuation omitted) (quoting Olds v. State,
299 Ga. 65, 75 (2) (786 SE2d 633) (2016)).
      17
           Smart, 299 Ga. at 418 (2) (b) (punctuation omitted).
      18
           Id. (punctuation omitted).

                                           15
      adds . . . to the other proof available to establish the fact for which it is
      offered; and the need for the evidence.19


      Here, photographs of S. P. following the attack left no doubt that she suffered

injuries; and in her initial statements to the 911 dispatcher and the first responding

police officer, she claimed Chambers perpetrated the attack. But these statements

were at least somewhat called into question by S. P.’s recantation in her affidavit, in

which she claimed that she falsely accused Chambers, and her lack of recall on the

witness stand. Thus, the prior-acts evidence showing that Chambers resorted to

violence to assert control over his female partners was needed by the State to counter

S. P.’s reluctance to testify against Chambers. Indeed, such evidence added

significantly to the other evidence submitted to show that Chambers, in fact, struck

and choked S. P.20 And while the evidence was certainly prejudicial, as almost all



      19
        Harris, 338 Ga. App. at 782 (punctuation omitted) (quoting Olds, 299 Ga.
at 75-76 (2)).
      20
          See Olds, 340 Ga. App. at 405-06 (2) (holding that prior acts evidence
showing that defendant had committed violent acts against women with whom he had
been romantically involved helped establish proof of guilt in case in which there was
little evidence other than victim’s testimony); Harris, 338 Ga. App. at 783
(concluding that prior acts evidence that defendant had engaged in violence towards
other women who refused to accede to his advances added to proof used to establish
he hit victim after she similarly refused).

                                           16
evidence presented by the State against a criminal defendant will be, we agree with

the trial court that “on balance any such prejudice did not substantially outweigh the

probative value of the evidence in this case.”21 Accordingly, the trial court did not

abuse its discretion in admitting Chambers’s 2003 family violence battery conviction

into evidence.

      For all these reasons, we affirm Chambers’s convictions.

      Judgment affirmed. Gobeil and Hodges, JJ., concur.




      21
         Harris, 338 Ga. App. at 783 (punctuation omitted); see Smart, 299 Ga. at 419
(2) (b) (holding that “given the relevance of the evidence to the question of motive,
we cannot say that any prejudice it might have caused outweighed its significant
probative value”).

                                         17
