                               FIFTH DIVISION
                                PHIPPS, P. J.,
                         DILLARD and PETERSON, 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 21, 2016




In the Court of Appeals of Georgia
 A16A0242. AMEY v. THE STATE.

      PHIPPS, Presiding Judge.

      In connection with a drive-by shooting, Terrell Amey was convicted of

aggravated assault and cruelty to children. In this appeal, Amey contends that the trial

court erred by admitting into evidence a certain letter. We affirm.

      At the jury trial, the state’s witnesses testified to the following. During the late

night of April 14, 2012, Amey was the front seat passenger of an SUV being driven

by his adult male cousin. Seated behind the driver was an adult male, who was a close

friend of both Amey and the driver. Seated behind Amey was the driver’s one-year

old son.

      The driver received a phone call, and the caller’s voice was heard through the

SUV’s speakers. The caller, who was an adult male cousin of Amey and the driver,
exclaimed that “some boys was trying to jump” on him at a particular Pilot gas

station. The immediate reactions by the men in the SUV, as detailed at trial by both

the driver and the backseat passenger, led to the shooting underlying this case.

      The driver testified, “We all agreed to go down there and see what was going

on.” When they arrived at the Pilot gas station, the caller was with another relative

of the driver. The caller began pointing to a Dodge Charger that was exiting the

parking lot. The driver of the SUV inferred from such gesturing that, leaving the

scene in that vehicle, “must have been the guys that was trying to mess with them or

jump on them.” The driver quickly made a U-turn and pursued the Charger. As the

driver testified, “[W]hen I went up the road [Amey] told [the backseat passenger] to

pass the gun to [him]. When [the backseat passenger] passed the gun [Amey] rolled

down the window and he told me to pull up beside [the Charger].” The road, as the

driver described at trial, had only two lanes – each for traveling in the opposite

direction of the other. The driver recounted what happened when he next steered the

SUV into the lane designated for traveling in the opposite direction: “I pulled up

beside [the Charger,] and he fired shots.” The prosecutor asked for clarification: “And

who was the shooter that night?” The driver answered, “Terrell Amey.”




                                          2
      The backseat passenger gave a similar account at trial. Upon receiving the call,

they “proceeded to go to the Pilot.” Once there, they saw the “Charger leaving the

scene,” so they “proceeded to go behind them.” Amey asked for his (the backseat

passenger’s) handgun, which the backseat passenger typically kept on his waistband.

The backseat passenger handed his gun to Amey. Amey lowered his window and

extended his arm outside the SUV. When the SUV and the Charger were aligned,

“[h]e . . . started shooting.” The prosecutor asked for clarification, “Who shot that

gun?” The backseat passenger answered, “Terrell Amey.”

      The driver and the backseat passenger were co-indicted with Amey on charges

of: (i) aggravated assault upon the driver of the Charger; and (ii) cruelty to children,

for committing the aggravated assault in the presence of the driver’s minor son. As

the driver and backseat passenger acknowledged while on the stand, both had entered

negotiated guilty pleas in exchange for their testimony at Amey’s trial, and were then

residing in prison.

      Also at trial, the man who had been driving the Charger at the time it was fired

upon took the stand. He described leaving the Pilot, being chased by the SUV, then

being fired upon from the SUV’s passenger-side window. And a police officer who




                                           3
had investigated the criminal incident testified that several bullets had penetrated the

rear quarter panel of the Charger and its trunk.

       The state also presented evidence of the letter in question. To introduce that

letter, the state called to the stand an assistant district attorney who had been

temporarily assigned to the case (“the former ADA”). From that witness, the state

elicited testimony that, during the trial preparation period, Amey’s lawyer provided

to him an envelope with a letter inside. The envelope was hand-addressed to “Terrell

Amey”; the sender, the envelope showed, was Amey’s cousin who had been the

driver of the SUV during the drive-by. The letter inside was also handwritten. It

stated, in pertinent part,

       Rell, It hurt me to go along with that lie [the backseat passenger] told
       when he said yu shot at that car. I’m sorry. I just went along with it
       because I thought u had left the courtroom and I knew by me taking a
       plea that I was going to meet up with him in jail. And I didn’t want to
       have to fight him about him saying I told on him. He knew he shot out
       that back window. Yu was in the passenger seat. Yu was still sleep until
       the shot went off. But if yu have to go to trial yu know I’m not gone
       come and lie for him this time. . . . “E” a real dummy. . . . Love ya, Dip




                                           4
“E,” as the prosecutor had elicited from the back-seat passenger, was the back-seat

passenger’s nickname. And “Dip,” as the prosecutor had elicited from the driver, was

the driver’s nickname.

       When the prosecutor had the driver on the stand, however, the prosecutor

questioned the driver about whether he had written to family members since his

incarceration, and more specifically, whether he could identify the envelope and letter

described above. The driver responded that he had written to his family, including

one letter to Amey. The driver identified the hand-addressed envelope as the one in

which he had mailed his letter to Amey. But when shown the letter (recited, in part,

above), the driver claimed that it was not the letter that he had placed inside that

envelope. As the driver explained, “I didn’t write that letter. . . . I sent him a letter but

it wasn’t saying nothing what that says.”

       Amey complains on appeal, “[T]he only practical purpose for the admission of

the letter was to infer [sic] that it was written by the defendant in an attempt to




                                             5
mislead the state.”1 Contending that the trial court erred by admitting the letter in

evidence,2 Amey advances the following arguments.

      1. First, Amey argues that the letter was inadmissible for lack of authentication.

He cites OCGA § 24-9-901 (a),3 which provides: “The requirement of authentication

or identification as a condition precedent to admissibility shall be satisfied by

evidence sufficient to support a finding that the matter in question is what its

proponent claims.”

      Prior to opening statements, the trial court conducted a hearing on the

admissibility of the letter. Amey’s lawyer made clear that the defense would not be

seeking to present the letter to the jury and further sought a ruling disallowing the

state from using the letter, positing that the state would not be able to authenticate it.

      The prosecutor responded,”[The former ADA] could be called to testify he

received this [letter] from the Defense.” The prosecutor further apprised the court

      1
          (Emphasis supplied.)
      2
       Alexis v. State, 313 Ga. App. 283, 286 (2) (721 SE2d 205) (2011) (“Whether
to admit evidence is a matter resting in the trial court’s sound discretion.”) (citation
and punctuation omitted).
      3
        This case was tried after January 1, 2013, which was the effective date of
Georgia’s new Evidence Code, including OCGA § 24-9-901 (“Requirement of
authentication or identification”). See generally Moore v. State, 295 Ga. 709, 713 (3),
n. 2 (763 SE2d 670) (2014).

                                            6
that, during trial preparation, the state asked the driver about the letter and the driver

denied writing it. Positing that the letter was nevertheless admissible, the prosecutor

explained,

      The letter is not being offered as to prove the truth of the matter asserted
      in that, quite the contrary. That it is in fact not true, that there was a
      falsity made in this case that was attempted to be perpetrated on the
      State. It was offered by the Defense as something that this co-defendant
      [driver] had written, which he apparently has not.4


After hearing additional argument from both sides, the Court overruled the defense

objection, and the state introduced the letter (and the envelope) as set forth above.

      Maintaining that the letter was inadmissible for lack of authentication, Amey

points out that the state adduced no witness who saw the letter being written,

presented no testimony by a handwriting expert or a witness familiar with the

handwriting, and introduced no other writing with which the jury could compare the

letter. Amey concedes in his brief that “he was, at one point, in custody of [the

letter],” but he recites language in McCombs v. State5 that “‘[i]t would . . . be a very




      4
          (Emphasis supplied.)
      5
          109 Ga. 496 (34 SE 1021) (1900).

                                            7
unsafe rule to hold that the possession and ownership of a . . . document may

authorize an inference that the owner . . . did write the matter contained in it.’”6

      We agree with the state that it sufficiently authenticated the letter pursuant to

OCGA § 24-9-901 (b), which allows for authentication based upon its “[a]ppearance,

contents, substance, internal patterns, or other distinctive characteristics, taken in

conjunction with circumstances.”7 As the state concedes (and as the record

demonstrates), “the letter was offered to show that [Amey] fabricated [a document]

in an attempt to deceive the [s]tate and avoid punishment.” Hence, the state had the

burden of presenting “sufficient evidence to make out a prima facie case that the

proffered evidence is what it purports to be. Once that prima facie case is established,

the evidence is admitted and the ultimate question of authenticity is decided by the

jury.”8



      6
          Id. at 499 (1), quoting Van Sickle v. People, 29 Mich. 61, 65 (1874).
      7
       OCGA § 24-9-901 (b) (4). Accord State v. Smith, 246 Ga. 129, 130 (269 SE2d
21) (1980) (recognizing that “possession, together with other circumstances, may
meet the burden” of establishing authenticity of a document) (citation and
punctuation omitted).
      8
       Brown v. State, 332 Ga. App. 635, 639 (2) (774 SE2d 708) (2015) (citations
and punctuation omitted) (addressing authenticity requirements under OCGA § 24-9-
901).

                                           8
      Here, the contents and substance of the letter demonstrated that its author knew

details of the drive-by shooting, including the occupants of the SUV and their seating

arrangement. The author of the letter was familiar with the driver’s and backseat

passenger’s nicknames: “Dip” and “E.” The letter was written by someone who knew

that Amey’s traveling companions/co-indictees had pled guilty to the charges and

agreed to testify against him – a fact of which Amey would have been aware through

discussions with his attorney. The version of events set forth in the letter – that Amey

had been asleep until the gun was discharged – was consistent with a conclusion that

Amey was not guilty, even as a party to the crimes. Moreover, the letter contained

purported admissions that the driver had perjured himself by falsely testifying that

Amey was the shooter; but nothing in the record shows what the driver might have

gained from thereby admitting perjury. Amey, on the other hand, stood to gain

support for a defense that might have exonerated him of all charges. As Amey

concedes, the letter had been in his possession. And his lawyer subsequently gave it

to the former ADA. Furthermore, although the letter was purportedly signed by the

driver, the driver disclaimed writing it.

      In light of these circumstances, the state carried its burden of presenting

sufficient evidence to make out a prima facie case that the letter was authored by


                                            9
Amey.9 Because the trial court thus did not err by rejecting Amey’s authentication

objection, this evidentiary challenge provides no basis for disturbing the judgment of

conviction.

      2. Alternatively, Amey argues that the letter should have been excluded under

OCGA § 24-4-403, which states: “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.” According to Amey, “The letter here



      9
         See Smith, supra (holding that a document found in defendant’s possession
and purportedly written by defendant’s accomplice was sufficiently authenticated as
written by the accomplice, given the document’s content and references to
“circumstances [that] were peculiarly within the knowledge” of the accomplice);
Armstrong v. State, 249 Ga. App. 772, 775 (3) (549 SE2d 545) (2001) (explaining
that trial court did not err by overruling authentication objection to unsigned notes
that were addressed to, and received by, defendant’s accomplice, where there was
circumstantial evidence that the defendant had penned the notes, including: the notes
accomplice received threatened him if he “snitched,” and the only person against
whom the accomplice had agreed to testify was the defendant); Weathers v. State, 198
Ga. App. 871-872 (3) (403 SE2d 449) (1991) (explaining that the state made a prima
facie showing of authenticity that the defendant’s alleged accomplice had authored
a letter to the District Attorney that offered to testify against defendant if his
sentences were shortened, because despite the alleged accomplice’s subsequent denial
of authoring the letter, the letter bore the alleged accomplice’s correct name and
address, the contents of the letter “indicated that its author had first-hand detailed
knowledge of how the crime had been committed,” and the alleged accomplice “had
a peculiar interest” in penning the letter).

                                         10
offered scant probative value and any such value was substantially outweighed by the

prejudicial effect its admittance undoubtedly had on the jury. In this case it would

have been impossible for a jury person, after the admittance of such a letter, to judge

this case fairly.”

       Pretermitting whether Amey waived this issue by failing to raise it before the

trial court,10 we find the argument without merit.

       [T]he plain meaning of OCGA § 24-4-403’s text makes clear that the
       trial court may only exclude relevant evidence when its probative value
       is “substantially outweighed” by one of the designated concerns. Indeed,
       the Eleventh Circuit has described Rule 403 as “an extraordinary remedy
       which the … court[s] should invoke sparingly, and the balance should
       be struck in favor of admissibility.” Obviously, the reason for such
       caution is that relevant evidence in a criminal trial is “inherently
       prejudicial.”11


       10
          Compare OCGA § 24-1-103 (a) (1) (“Error shall not be predicated upon a
ruling which admits . . . evidence unless a substantial right of the party is affected and
. . . a timely objection or motion to strike appears of record, stating the specific
ground of objection, if the specific ground was not apparent from the context.”), with
OCGA § 24-1-103 (d) (“Nothing in this Code section shall preclude a court from
taking notice of plain errors affecting substantial rights although such errors were not
brought to the attention of the court.”).
       11
        Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014) (“OCGA
§ 24-4-403 . . . tracks Federal Rule of Evidence 403.”) (footnotes omitted). “Given
the similarity between Georgia’s new evidence code and the Federal Rules of
Evidence it is proper that we give consideration and great weight to constructions

                                           11
      The letter was introduced as evidence of Amey’s guilty consciousness relating

to the shooting incident. “Evidence of [Amey’s] consciousness of guilt was certainly

relevant at his trial.”12 Our review of the record convinces us that the letter was not

rendered inadmissible for reason that its relevance was “substantially outweighed”

by any “danger of unfair prejudice.”13 Consequently, this evidentiary challenge

provides no basis for disturbing the judgment of conviction.

      Judgment affirmed. Dillard and Peterson, JJ., concur.




placed on the Federal Rules by the federal courts.” Id. at 879 (1), n. 14 (citation and
punctuation omitted).
      12
           Bostic v. State, 294 Ga. 845, 849 (2) (757 SE2d 59) (2014) (citation omitted).
      13
          OCGA § 24-4-403; see Bostic, supra at 848-849 (2) (rejecting argument that
evidence of defendant’s statements made while awaiting trial – that he “would ‘win
his case,’ because ‘his people [would] put the guy that ID’d him at the scene of the
crime . . . to sleep,’ which would mean that the State would ‘not be able to go to the
grand jury and indict him and he will walk free’” – was inadmissible as unfairly
prejudicial, where such evidence was relevant to show defendant’s “consciousness
of guilt”); Williams, supra.

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