                             FOURTH DIVISION
                               DILLARD, C. J.,
                         DOYLE, P. J., and MERCIER, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 22, 2018




In the Court of Appeals of Georgia
 A18A1105. HOUSEWORTH v. THE STATE.                                           DO-037 C

      DOYLE, Presiding Judge.

      Santana R. Houseworth was charged with driving under the influence to the

extent it was less safe to drive (“DUI less-safe”),1 hit-and-run,2 and two counts of first

degree vehicular homicide (predicated on felony hit-and-run and DUI less-safe).3 A

jury acquitted her of vehicular homicide based on DUI less-safe (Count 1), and she

was convicted on the remaining three counts and sentenced to serve 15 years in

custody.4 Houseworth appeals, arguing that the evidence was insufficient to sustain

      1
          OCGA § 40-6-391 (a) (1).
      2
          OCGA § 40-6-270 (b).
      3
          OCGA §§ 40-6-393 (a) & (b).
      4
       Houseworth’s conviction for hit-and-run (Count 3) merged with vehicular
homicide based on hit-and-run (Count 2).
her conviction for vehicular homicide based on hit-and-run and that the trial court

erred by admitting evidence of her subsequent DUI arrest. For the reasons that follow,

we find the evidence sufficient, but reverse her convictions because the trial court

erred by admitting evidence of the subsequent act.

             On appeal from a criminal conviction, we view the evidence in the
      light most favorable to the verdict, and the defendant is no longer
      entitled to the presumption of innocence. We determine only whether
      the evidence authorized the jury to find the defendant guilty beyond a
      reasonable doubt, and in doing so we neither weigh that evidence nor
      judge the credibility of the witnesses.5


      So viewed, the record shows that on the night of April 3, 2015, Houseworth,

Bobby Gleaton, Jr. (her boyfriend), and several friends went to a nightclub in DeKalb

County, where the group ate food and drank alcohol. According to one witness,

Houseworth consumed “three or four shots and a couple [of] cups of blue MF[, an

alcoholic mixed drink].” The group was asked to leave the bar after one of

Houseworth’s friends got into a disagreement with another patron. Gleaton,



      5
        (Citations and punctuation omitted.) Dickson v. State, 339 Ga. App. 500, 501
(1) (793 SE2d 663) (2016), quoting Byrd v. State, 325 Ga. App. 24 (752 SE2d 84)
(2013), Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013).


                                          2
Houseworth, and Houseworth’s friend, Cierra St. Hubert-Upshaw, left in

Houseworth’s car – a white 2003 Honda Accord – with Gleaton driving, intending to

meet the others at Gleaton’s house.

      While en route, Gleaton and Houseworth argued. Gleaton stopped the car in an

office park located on a four-lane divided highway and got out, telling the women

that he would “get hi[m]self home.” The women exited the car and tried to convince

Gleaton to return to the car, but he refused. Gleaton called his friend, Deion Willams,

and asked him to pick him up at a condominium complex, which was located on the

same side of the highway as the office park where the group was parked and

connected to it with a sidewalk.

      When Houseworth and St. Hubert-Upshaw returned to the car, it had started to

rain. Houseworth, who was driving, turned eastbound on the highway shortly before

making a U-turn to go westbound towards an interstate highway. St. Hubert-Upshaw

estimated that Houseworth was going approximately 45 miles per hour, which was

the speed limit. As the car proceeded towards the interstate, the women saw

something in the road; according to St. Hubert-Upshaw, the women could not initially

determine what it was, asking each other if it was “like a deer or something.” St.

Hubert-Upshaw testified that as they got closer to the object, they realized it was

                                          3
Gleaton, and Houseworth swerved to avoid him, jerking the steering wheel to the left

and stopping the car in the median. St. Hubert-Upshaw, who was in the front

passenger seat, hit her head on the dashboard, and the windshield cracked.

      As soon as she regained control of the car, Houseworth drove a short distance

to the parking lot of a nearby restaurant. The women exited the car, and St. Hubert-

Upshaw noticed that the bumper on Houseworth’s car was hanging off, the

windshield was cracked, and there was a dent in the roof. Houseworth called

Gleaton’s parents and Williams, and she angrily told them that Bobby had “messed

up her car.” Gleaton’s parents and Williams met her in the restaurant parking lot,

where Houseworth told them that Gleaton had thrown something at her car or

punched it. Williams and Gleaton’s parents testified that Houseworth appeared to be

intoxicated, and they all observed the significant damage to her car.

      Meanwhile, between 1:45 and 2:30 a.m. that same night, Jessica Johnson

observed an object lying in the road on the highway, partially in the median. Johnson

applied her brakes and tried to swerve around the object, but she was unable to avoid

running over it. Johnson stopped her vehicle and immediately called 911 when she

realized she had run over a person, later identified as Gleaton. While she waited for

police to arrive, Johnson observed several other vehicles run over the body.

                                         4
      When an officer arrived on the scene, Gleaton was “in the roadway injured very

badly,” and he stopped breathing shortly thereafter. Emergency personnel arrived and

attempted to render aid, but they were unable to revive Gleaton. A detective arrived

shortly thereafter and observed track marks on the roadway, a black vehicle part later

identified as a part from the inner wheel well of a vehicle, and a broken piece of a

white bumper cover with a label indicating that it fit a 2003 to a 2006 Honda Accord.6

Although he was unable to conduct an accident reconstruction based on wet weather

conditions and the fact that Gleaton had been struck by multiple vehicles, the

detective later determined that the damage to Houseworth’s vehicle was consistent

with “a vehicle striking a pedestrian.”

      Meanwhile, Houseworth and St. Hubert-Upshaw left and went to Clayton State

College with friends to retrieve Houseworth’s phone. Houseworth returned to the

restaurant, and at 6:36 a.m. the following morning, she called 911 from the parking

lot and reported a single-vehicle accident with property damage. An officer, unaware

of Gleaton’s death, responded to the restaurant, and he observed that Houseworth’s

white 2003 Honda Accord was “very heavily damaged,” noting that the windshield

was caved in. Houseworth appeared to be “kind out of it,” her hair was in disarray,

      6
          There was no white Honda at the scene when police responded.

                                          5
and she wasn’t wearing much clothing. Houseworth told the officer that “she was

driving down the highway earlier in the middle of the night[,] and she struck

something. She wasn’t sure if it was a deer or whatever, an object in the road.”

      At 10:06 a.m., Houseworth sent Gleaton’s mother a text that said, “[T]here are

no words I can say for forgiveness, but on my own life I did not see this coming[,]

and I promise you I had no intentions. . . . I know sorry can’t fix anything but I’m

sorry. . . . I’m on begging knees, I swear it wasn’t intentional.”

      Houseworth was charged with two counts of first degree vehicular homicide,

hit-and-run, and DUI less-safe.

      At trial, the medical examiner testified that Gleaton suffered a number of

injuries, including lacerations, contusions, compound fractures in both legs, a linear

skull fracture, and blunt force injuries to his face. He further testified that

      [I]t would be my opinion that the head injuries [caused by the first
      vehicle striking Gleaton], in and of themselves are lethal, the skull
      fracture and the brain injuries to the brain itself. And it would be my
      opinion that that particular injury was, in my opinion, caused by an
      impact either against the first vehicle that struck him . . . and could have
      been caused either by an impact against part of the vehicle or, you know,
      the tertiary impact when he was thrown off that vehicle and onto the
      road and impacting his head then.


                                            6
According to the medical examiner, some of Gleaton’s injuries were sustained while

he was walking or standing upright, and those injuries incapacitated him, rendering

him immobile in the roadway, where he was struck by other vehicles that also left

injury patterns. On cross-examination, however, the medical examiner conceded that

it was possible that Gleaton was still standing after the first car struck him. The

medical examiner also testified that blood tests performed on Gleaton indicated the

presence of “a fairly high level” of marijuana, a “very small amount” of Xanax, a

“fairly high amount . . . high therapeutic or slightly above” level of

pseudoephedrine/ephedrine, and a low-to-therapeutic amount of Benadryl; another

doctor testified that Gleaton’s blood alcohol level was 0.109.

      At the conclusion of the trial, the jury acquitted Houseworth of vehicular

homicide based on the predicate offense of DUI and found her guilty of the remaining

three counts. This appeal followed.

      1. Houseworth argues that the evidence is insufficient to sustain her conviction

for vehicular homicide predicated on hit-and-run because Gleaton’s conduct was the

superseding, proximate cause of the accident that caused his death. We disagree.

      (a) OCGA § 40-6-393 (b) provides: [a]ny person who, without malice

aforethought, causes the death of another person through the violation of . . .

                                          7
subsection (b) of Code Section 40-6-270 [felony hit-and-run] commits the offense of

homicide by vehicle in the first degree.”

      Count 2 charged that Houseworth violated OCGA § 40-6-393 (b) by:

      while driving a motor vehicle . . . without malice aforethought, cause[d]
      an accident which caused the death of Bobby Lee Gleaton, Jr., a human
      being, through a violation of OCGA § 40-6-270 (b), [h]it and [r]un, in
      that she struck [Gleaton] with the aforementioned motor vehicle, and did
      knowingly fail to immediately stop her vehicle at the scene of the
      accident and return to the scene of the accident and render reasonable
      assistance to said victim. . . .


      The trial court charged the jury that the State bore the burden of proving,

beyond a reasonable doubt, that Houseworth was “guilty of the offenses charged” and

that “[n]o person shall be convicted of any crime unless or until each element of the

crime as charged is proven beyond a reasonable doubt. The burden of proof rests

upon the State to prove every material allegation of the indictment and every essential

element of the crime charged beyond a reasonable doubt.” The court also properly

charged the jury as to the elements of vehicular homicide based on the predicate act

of hit-and-run, and it gave the jury the following pattern jury charge on leaving the

scene/hit-and-run, which charge addressed causation:



                                            8
      It is unlawful for any person to knowingly fail to stop and comply with
      the requirements previously stated where the accident is the proximate
      cause of death or serious bodily injury. Proximate cause is that which in
      the natural and continuous sequence unbroken by other causes produces
      an event and without which the event would not have occurred.
      Proximate cause is that which is the nearest in the order of responsible
      causes as distinguished from remote and that which stands last in
      causation, not necessarily in time or place but in causal relation.7


“[I]n cases of conflicting evidence over causation, the question is one for the jury to

resolve.”8

      Here, the testimony about Houseworth’s alcohol consumption before the

accident and her appearance and actions soon after the accident, coupled with the

evidence of the damage to her, debris left at the scene, and St. Hubert-Upshaw’s

testimony about Houseworth’s unsuccessful attempt to avoid striking Gleaton by

swerving, entitled the jury to conclude that Houseworth caused the accident, while

driving under the influence of alcohol to the extent that it was less safe, striking

Gleaton with her car, and leaving the scene without rendering aid, which resulted in



      7
       See Suggested Pattern Jury Instructions Vol. II: Criminal Cases (4th ed.), §
2.86.22.
      8
          Michael v. State, 335 Ga. App. 579, 584 (1) (782 SE2d 479) (2016).

                                          9
Gleaton’s serious injury and death. The jury also could reasonably infer from her text

to Gleaton’s mother the morning after the accident that Houseworth was conscious

of her own guilt.9

      (b) Houseworth also contends that the circumstantial evidence of causation

failed to exclude all reasonable hypotheses of her guilt.10 This

      argument is without merit because the reasonable hypothesis rule applies
      only in the narrow context where all of the evidence against the accused
      was circumstantial. Here, there was direct evidence in the form of
      eyewitness testimony[, including St. Hubert-Upshaw, Gleaton’s parents,
      and Williams,] and [Houseworth’s statements in her text to Gleaton’s
      mother]. The reasonable hypothesis rule therefore has no application in
      this case.11


      (c) Finally, contrary to Houseworth’s argument on appeal, the fact that the jury

acquitted her of vehicular homicide predicated on DUI less-safe does not mean that

the State had to use conduct independent of DUI to prove that she caused the

accident. An acquittal on one charge does not affect the sufficiency of the evidence




      9
          Id. at 585 (1).
      10
           See OCGA § 24-14-6.
      11
           (Citations omitted.) Michael, 335 Ga. App. at 585 (1).

                                          10
as to another charge, even if the conviction is a compound offense, and the acquittal

was for a predicate offense.12

      In light of the abolition of the inconsistent verdict rule in criminal cases,
      the issue is not whether an acquittal on one charge would logically
      necessitate acquittal on another charge on which the jury convicted the
      defendant; rather the sole question is whether the evidence viewed in
      favor of the conviction was sufficient to support the guilty verdict.13


      Given the evidence in this case, the jury was authorized to conclude that

Houseworth was guilty of first-degree vehicular homicide predicated on hit-and-run.

      2. Houseworth also contends that the trial court erred by admitting evidence of

her subsequent, unresolved DUI less-safe arrest, arguing that it was irrelevant, lacked

probative value, and was unfairly prejudicial.

      Prior to trial, the State filed a notice of intent to present evidence of

Houseworth’s May 21, 2016 arrest for DUI less-safe, seeking to introduce it to show

“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or



      12
           See Tanksley v. State, 281 Ga. App. 61, 62 (1) (635 SE2d 353) (2006).
      13
         (Punctuation omitted.) Id., quoting Kimble v. State, 236 Ga. App. 391, 395
(1) (512 SE2d 306) (1999). See also Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d
216) (1986) (abolishing the inconsistent verdict rule in criminal cases), citing United
States v. Powell, 469 U. S. 57, 67 (105 SC 471, 83 LE2d 461) (1984).

                                           11
absence of mistake or accident. . . .” The trial court heard evidence and oral argument

from the parties on the fourth day of trial.14 The State advised that it sought to

introduce the evidence to show Houseworth’s “intent to drive under the influence of

alcohol” and to show that her actions were not an accident; Houseworth objected,

arguing that the subsequent acts were neither relevant nor probative, and they were

unfairly prejudicial.

      After considering the proffer and the arguments of counsel, the trial court

admitted the evidence “for the purpose of demonstrating intent.” The court did not

elaborate on its ruling, failing to indicate whether it had weighed the prejudicial

impact against the probative value of the evidence. The court did instruct the jury

immediately before its admission that the evidence was to be considered “for the sole

issue or limited purpose of showing intent.” And during its final instructions to the

jury, the trial court charged:

      Before you may consider — before you may consider of the subsequent
      DUI alleged committed — allegedly committed by the defendant for the
      limited purpose of showing intent, you must first determine whether it


      14
        According to the State’s appellate brief, in an order dated August 23, 2017,
the court granted the State’s motion to introduce the evidence of Houseworth’s
subsequent DUI. As the State points out, however, that order was not included in the
record on appeal.

                                          12
      is more likely than not that the accused committed the subsequent DUI.
      If so, you must then determine whether the subsequent DUI shares any
      light on the issue of intent for the crimes charged in the indictment in
      this trial. Remember to keep in mind the limited use and prohibited use
      of this evidence.


      Following the trial court’s ruling admitting the evidence, the State presented

testimony from a police officer who responded to a single-car accident in Atlanta at

3:30 a.m. on May 21, 2016. The officer observed Houseworth’s Honda Accord, which

had struck an unoccupied, abandoned house, resulting in damage to the house and

extensive damage to the car. Houseworth — the driver — and her passenger initially

walked away from the scene, but paramedics stopped Houseworth and transported her

to the hospital, where she was interviewed by another officer. Houseworth, who was

wearing a neck brace, admitted that she had been drinking at the U-Bar – the same bar

she and Gleaton visited the night of his death – before driving and losing control of

her car. After noticing an odor of alcohol and observing Houseworth’s glossy, glassy

eyes, the officer arrested her. Houseworth refused to submit to a State-administered

chemical test, and she was charged with DUI less-safe.

      OCGA § 24-4-404 (b) (“Rule 404 (b)”) provides in relevant part:




                                         13
      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. . . .


To admit evidence of other acts,

      [t]he trial court must find that: (1) the other acts evidence is relevant to
      an issue other than the defendant’s character, (2) the probative value is
      not substantially outweighed by undue prejudice under OCGA § 24-4-
      403 (“Rule 403”), and (3) there is sufficient proof that a jury could find
      by a preponderance of the evidence that the defendant committed the
      acts.15


      Relevant evidence admissible under Rule 404 (b) may be excluded under Rule

403 “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.”16 “This

balancing test is committed principally to the discretion of the trial courts[,] and



      15
       (Punctuation omitted.) State v. Atkins, ___ Ga. ___, ____ (2) (Case No.
S18A0770, decided Sept. 10, 2018), quoting Jones v. State, 301 Ga. 544, 545 (802
SE2d 234) (2017) (“Jones IV”).
      16
           OCGA § 24-4-403.

                                          14
exclusion of evidence under the test is an extraordinary remedy which should be used

only sparingly.”17

      Here, the State sought to admit the evidence to show Houseworth’s “intent to

drive under the influence of alcohol” and to show that her actions were not an

accident, and the trial court admitted the evidence “for the purpose of demonstrating

intent.”

               Rule 404 (b) explicitly recognizes the relevance of other acts
      evidence offered for a permissible purpose and, at the same time,
      prohibits the admission of such evidence when it is offered solely for the
      impermissible purpose of showing a defendant’s bad character or
      propensity to commit a crime. Rule 404 (b), therefore, is, on its face, an
      evidentiary rule of inclusion which contains a non-exhaustive list of
      purposes other than bad character for which other acts evidence is
      deemed relevant and may be properly offered into evidence.18




      17
        (Punctuation omitted.) Jones IV, 301 Ga. at 546 (1), quoting Olds v. State,
299 Ga. 65, 70 (2) (786 SE2d 633) (2016).
      18
           State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d 170) (2015) (“Jones II”).

                                          15
      Intent is a proper purpose for introducing evidence of similar acts.19 And the

Supreme Court of Georgia held in Jones II that DUI less-safe is a general intent

crime, and the State therefore

      had the burden of proving beyond a reasonable doubt [the defendant’s]
      intent . . . to drive . . . under the influence of alcohol . . . to the extent
      [s]he was a less safe driver. Intent, therefore, was a material issue in the
      State’s prosecution[,] and because the same state of mind was required
      for committing the prior act and the charged crimes, i.e., the general
      intent to drive while under the influence of alcohol, evidence of [the
      defendant’s ] prior [DUI] conviction was relevant under Rule 404 (b) to
      show [the defendant’s] intent [with regard to the charged crime].20


      Neverthless, even assuming that Houseworth’s subsequent arrest for DUI was

relevant to show intent, the record does not demonstrate that the evidence of her

subsequent DUI arrest was properly admitted.

      The Supreme Court of Georgia has explained that:

      the probative value of evidence derives in large part from the extent to
      which the evidence tends to make the existence of a fact more or less
      probable. Generally speaking, the greater the tendency to make the
      existence of a fact more or less probable, the greater the probative value.


      19
           See OCGA § 24-4-404 (b).
      20
           (Punctuation and citation omitted.) Jones II, 297 Ga. at 160-161 (2).

                                           16
      And 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. Probative value also 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. The stronger the
      other proof, the less the marginal value of the evidence in question. And
      probative value depends as well upon the need for the evidence. When
      the fact for which the evidence is offered is undisputed or not reasonably
      susceptible of dispute, the less the probative value of the evidence.21


      When conducting the Rule 403 balancing test,

      [a]n appellate court will examine whether the trial court properly
      considered all the circumstances surrounding the extrinsic act evidence,
      including the similarities between the charged act and the extrinsic act,
      the remoteness in time between the charged act and the extrinsic act, and
      the prosecution’s need for the extrinsic act evidence.22


      Here, the temporal span of thirteen months “is not too remote for the probative

value of the extrinsic act to be impacted in a significant way.”23 Therefore, a


      21
           (Citation and emphasis omitted.) Olds, 299 Ga. at 75-76 (2).
      22
         Jones IV, 301 Ga. at 548 (2), citing United States v. Perez, 443 F3d 772, 780
(II) (11th Cir. 2006); Bradshaw v. State, 296 Ga. 650, 657-658 (3) (769 SE2d 892)
(2015).
      23
           Jones IV, 301 Ga. at 548 (2).

                                           17
determination of the admissibility of the similar act focuses on the similarities

between the two events and the State’s need for the subsequent DUI arrest to

demonstrate intent.

      While both events involved DUI after Houseworth consumed alcohol at the

same bar, they are not identical. In May 2016, Houseworth drove her car from the bar

and struck a building, and there is no evidence that the collision resulted from

anything other than her diminished capacity. In the charged crime, she drove her car

after Gleaton refused to drive anymore, and she struck him when he later entered the

roadway — in a location other than where she left him and had no reason to expect

him to be — in the rain. Accordingly, the “similarities” between the two crimes are

a relatively neutral factor in the balancing test.

      More importantly, the probative value of her subsequent DUI arrest is minimal.

      [W]hether the charged crime is one of general intent is one of the
      factors, an important one, the trial court may consider when assessing
      the prosecutorial need for the extrinsic act evidence in question.
      Logically, if the State’s threshold to prove intent as an element of a
      crime is relatively low, as it likely is when the charged crime is one of
      general intent, then the probative value of the extrinsic act evidence
      would necessarily be minimal.24

      24
           Id.

                                           18
      At trial, Houseworth’s attorney specifically conceded during opening and

closing arguments that Houseworth consumed alcohol before she drove. Such a

concession, notwithstanding her failure to admit that she was under the influence to

the extent that she was less-safe, diminishes the probative value of her subsequent

DUI arrest.25 “This is because probative value depends upon the need for the

evidence. When the fact for which the evidence is offered is undisputed or not

reasonably susceptible of dispute, the less the probative value of the evidence.”26

Given Houseworth’s concession during argument, coupled with the undisputed

evidence that she had consumed alcohol at the bar before the accident and the fact

that DUI less-safe is a general intent crime, “the probative value of the [subsequent]

DUI [arrest] to show intent . . . was very low.”27




      25
        See, e.g., Brown v. State, 303 Ga. 158, 161-162 (2) (810 SE2d 145) (2018)
(holding that the defendant’s prior commission of assault on another person had
“extremely low” probative value at his trial for murder and related offenses because
he admitted the intent to injure by asserting self-defense).
      26
           (Punctuation omitted.) Id. at 162 (2), quoting Olds, 299 Ga. at 76 (2).
      27
           Jones IV, 301 Ga. at 549 (2).

                                           19
      Having determined the extremely low probative value of Houseworth’s

subsequent DUI arrest, we must now weigh that against the danger of unfair

prejudice.28 As the Supreme Court of Georgia has explained,

      one of the dangers inherent in the admission of extrinsic offense
      evidence is that the jury may convict the defendant not for the offense
      charged but for the extrinsic offense, because the jury may feel that the
      defendant should be punished for that activity even if [she] is not guilty
      of the offense charged. Indeed, the major function of Rule 403 is to
      exclude matters of scant or cumulative probative force, dragged in by
      the heels for the sake of its prejudicial effect.29


And “[a]nytime a prior crime is admitted into evidence, there is a prejudicial effect.

Here, because the probative value of [Houseworth’s subsequent] DUI [arrest] was

minimal given all the attendant circumstances, the danger of interjecting unfair

prejudice was a greater risk.”30 This danger is evidenced by “the manner in which the

      28
           See Brown, 303 Ga. at 162 (2), citing Olds, 299 Ga. at 70 (2).
      29
          (Citation and punctuation omitted.) Brown, 303 Ga. at 162 (2), quoting Hood
v. State, 299 Ga. 95, 103 (4) (786 SE2d 648) (2016), United States v. Beechum, 582
F2d 898, 914 (III) (c) (5th Cir. 1978). In Bonner v. City of Prichard, 661 F2d 1206,
1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all Fifth
Circuit decisions prior to September 30, 1981.
      30
        (Citations and footnote omitted; emphasis in original.) Jones IV, 301 Ga. at
549-550 (2), citing United States v. Sterling, 738 F3d 228, 238-239 (III) (B) (11th
Cir. 2013) & United States v. Johnson, 27 F3d 1186, 1193 (II) (B) (6th Cir. 1994).

                                           20
prosecutor actually used the extrinsic act evidence at trial.”31 During closing

argument, although the State maintained that the evidence of Houseworth’s

subsequent DUI arrest was important because it “goes to intent,” the prosecutor went

on to explain that “[i]t shows you that she consumed alcohol and intends to drive. .

. .” This statement impermissibly implies course of conduct and propensity, not intent.

Neither course of conduct nor propensity are listed as proper purposes to admit Rule

404 (b) evidence32; in fact, “Rule 404 (b) prohibits the admission of [similar act]

evidence when it is offered solely for the impermissible purpose of showing a

defendant’s bad character or propensity to commit a crime.”33

      Therefore, instead of going to the issue of intent, the admission of

Houseworth’s subsequent DUI arrest “creat[ed] the potential that the jury would

render a decision predicated on [her propensity to drink and drive] in addition to the

stigma already associated with a [similar criminal act].”34Accordingly, we conclude


      31
           Jones IV, 301 Ga. at 550 (2).
      32
          The new Evidence Code specifically omitted course of conduct as a
permissible purpose for other acts evidence. See Thompson v. State, 302 Ga. 533, 538
(III) (A) (807 SE2d 899) (2017).
      33
           (Punctuation and emphasis omitted.) Jones II, 297 Ga. at 159 (2).
      34
           Jones IV, 301 Ga. at 550 (2).

                                           21
that the trial court abused its discretion by admitting evidence of Houseworth’s

subsequent DUI arrest “because the probative value of the evidence was substantially

outweighed by the danger of unfair prejudice.”35

      (b) Having concluded that the admission of the similar act evidence was

erroneous,

      we must review the record de novo to determine whether the trial court’s
      error was harmless. The test for determining nonconstitutional harmless
      error is whether it is highly probable that the error did not contribute to
      the verdict. In doing so, we weigh the evidence as we would expect
      reasonable jurors to have done so, as opposed to assuming that they took
      the most pro-guilt possible view of every bit of evidence in the case.36


      So viewed, the evidence of Houseworth’s guilt for vehicular homicide, while

sufficient to support her conviction, was not overwhelming. Again, the State had to

prove that Houseworth, without malice aforethought, caused the accident which

caused Gleaton’s death, through a violation of the hit-and-run statute.37 The evidence

at trial showed that Gleaton stopped and exited Houseworth’s car on one side of the



      35
           Id.
      36
           (Citations and punctuation omitted.) Brown, 303 Ga. at 164 (2).
      37
           See OCGA 40-6-393 (b).

                                          22
four-lane divided highway, and then, in the dark and rain, crossed the highway and

the median and was in the road on the other side of the highway — where

Houseworth had no reason to expect him to be — when Houseworth’s vehicle made

contact with him. Under these circumstances, there was not overwhelming evidence

that Houseworth caused the accident. Thus, “we cannot say that it is highly probable

that the error did not contribute to the verdict. Accordingly, we must reverse

[Houseworth’s] convictions.”38 We note, however, that because there was sufficient

evidence to sustain the jury’s guilty verdict, “double jeopardy therefore would not bar

a retrial in this instance.”39

       Judgment reversed. Dillard, C. J., and Mercier, J., concur.




       38
            Brown, 303 Ga. at 165 (2)
       39
         Thompson, 302 Ga. at 545 (V). Compare Jones IV, 301 Ga. at 550-551 (3)
(holding that error in admitting Rule 404 (b) evidence was harmless and did not
require reversal of conviction for DUI per se in light of evidence that the defendant’s
blood alcohol concentration was substantially in excess of the legal limit).

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