                              FOURTH DIVISION
                              ELLINGTON, P. J.,
                           BRANCH and MERCIER, 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 21, 2016




In the Court of Appeals of Georgia
 A16A0871. THE STATE v. SPRIGGS.

      BRANCH, Judge.

      After Andre Spriggs was charged with the armed robbery of a convenience

store clerk whom he shot in the head, a trial court granted Spriggs’ motion to suppress

two undated “selfie” cell phone videos in which he talked about making money by

various means, including armed robbery. The State argues that the grant was

erroneous because the videos were relevant and probative evidence of Spriggs’ intent

and motive in the armed robbery. We disagree and therefore affirm.

      We review a decision to admit or exclude evidence under OCGA §§ 24-4-403

and 24-4-404 (b) only for a “clear abuse of discretion.” Bradshaw v. State, 296 Ga.

650, 656 (3) (769 SE2d 892) (2015) (citation omitted). See also State v. Jones, 297

Ga. 156, 164 (3) (773 SE2d 170) (2015) (the exclusion of evidence under the
balancing test of Rule 403 “is an extraordinary remedy which should be used only

sparingly since it permits the trial court to exclude concededly probative evidence”)

(citation and punctuation omitted).

      At the hearing on the motion to suppress at issue, the State proffered evidence

that on September 4, 2014, Spriggs’ sister Amanda opened the door to the secured

cashier area of the convenience store where she was working, admitting Spriggs, who

entered and demanded that the man also working there get on his knees. Spriggs then

shot the man in the head, grabbed cash from behind the counter, and ran out the door.

Amanda called 911, providing the dispatcher with a false description of the shooter

in order to deflect attention from herself and her brother. Text messages between the

two showed that they had planned and executed the robbery together.

      Spriggs and his sister were arrested and charged with attempted murder, armed

robbery, aggravated assault, aggravated battery, and possession of a firearm during

the commission of a felony. The State filed a notice of its intention to introduce two

videos from Spriggs’s cell phone, which was seized in the wake of his arrest, on the

ground that the videos were relevant to show Spriggs’s intent, knowledge, plan,

motive, opportunity, and preparation as authorized by OCGA § 24-4-404 (b).

Although Spriggs told police that he “never had no gun in [his] possession, period,”

                                          2
both videos, which are not included in the appellate record, apparently show him

holding a handgun. The parties agree that in the first video, Spriggs says to the

camera, “I sit back and think, man, of the ways I can make money. Shit. Nine to five,

selling dope, or just straight robbing n******.” In the second, Spriggs says, “Yea

man, I’m an ATB azz, n***** man. Affiliated with the trap boy[,]1 man. N***** try

me, man, they know what’s happening, man. We stay strapped like a foo foo and I

don’t give a f***. I’ll blow your f***ing head off, you hear me. Straight like that.”

      After a hearing at which the trial court viewed the two videos, the court noted

that the State had failed to provide any evidence “as to when or under what

circumstances” Spriggs had made the videos or that “the videos were linked to the

indicted incident in any way.” Accordingly, the trial court held that the State failed

to show that the videos “would prove anything other than [Spriggs]’ propensity to rob

or injure others.” Finally, the trial court held that any probative value the videos may

have had “would be substantially outweighed by its undue prejudice” to Spriggs. The




      1
        “Trap boy” is slang for drug dealer. See http://www.urbandictionary.com
/define.php?term=trap+boy, accessed April 19, 2016.

                                           3
State brought this appeal under OCGA § 5-7-1 (a) (5).2 On appeal, the State concedes

that the videos are not linked to the armed robbery and thus are not intrinsic to that

crime.3 Rather, the State asserts that the trial court erred when it excluded the videos

as extrinsic evidence under OCGA § 24-4-403 and 404 (b) because they were relevant

and probative as to Spriggs’s intent and motive to commit the armed robbery at issue.

See Baughns, 335 Ga. App. at 602 (1).

      Under the three-part test adopted by our Supreme Court in Bradshaw and

Jones, when the State seeks admission of “extrinsic” or “other acts” evidence, it must

show that the proffered evidence

      (1) . . . is relevant to an issue other than a defendant’s character, see
      Rule 404 (b); (2) the probative value of the other acts evidence is not

      2
          OCGA § 5-7-1 (a) (5) authorizes appeals from “an order, decision, or
judgment excluding any . . . evidence,” other than evidence suppressed as the result
of an illegal seizure (see OCGA § 5-7-1 (a) (4)). See State v. Andrade, 298 Ga. 464,
466-467 (782 SE2d 665) (2016).
      3
        Compare Baughns v. State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016)
(“‘evidence is intrinsic to the charged offense, and thus does not fall within Rule 404
(b)’s ambit, if it (1) arose out of the same transaction or series of transactions as the
charged offense; (2) is necessary to complete the story of the crime; or (3) is
inextricably intertwined with the evidence regarding the charged offense’”) (quoting
United States v. Nowak, 370 Fed. Appx. 39, 41 (I) (11th Cir. 2010)); see also United
States v. Troya, 733 F3d 1125, 1131-1132 (II) (A) (11th Cir. 2013) (unlike Rule 404
(b) evidence, relevant “direct” evidence is always admissible unless it falls under a
rule of exclusion, including Federal Rule of Evidence 403).

                                           4
      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.


Jones, 297 Ga. at 158-159 (1) (citations omitted; emphasis supplied), citing

Bradshaw, supra.

      As an initial matter, it is undisputed that Spriggs made the videos at issue here.

The third part of the above test for the admission of relevant evidence under Rules

403 and 404 (b) is thus satisfied. Turning to the first and second parts of the same

test, then, we consider whether (1) the videos were “relevant to an issue other than

[Spriggs’s] character” and (2) even if so, the trial court abused its discretion in

excluding them as unfairly prejudicial under Rule 403.

      1. OCGA § 24-4-404 provides that, with the exception of character evidence

admissible under subsections (a) (1), (2), and (3),4


      4
          See OCGA § 24-4-404 (a):

              Evidence of a person’s character or a trait of character shall not
      be admissible for the purpose of proving action in conformity therewith
      on a particular occasion, except for:
              (1) Evidence of a pertinent trait of character offered by an accused
      or by the prosecution to rebut the same; or if evidence of a trait of
      character of the alleged victim of the crime is offered by an accused and
      admitted under paragraph (2) of this subsection, evidence of the same
      trait of character of the accused offered by the prosecution;

                                           5
             (b) [e]vidence 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.


(Emphasis supplied.) Rule 404 (b) 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.”

Jones, 297 Ga. at 159 (2) (citation omitted).

      To satisfy the first prong of the test for admission of extrinsic acts, the State

had to show that the evidence of the extrinsic acts was “relevant to an issue other than

[Spriggs’s] character.” Jones, 297 Ga. at 158-159 (1); see also Olds v. State, 299 Ga.

65, 75 (2) (786 SE2d 633) (2016) (“Evidence is relevant if it has ‘any tendency’ to

prove or disprove a fact”) (quoting OCGA § 24-4-401) (emphasis in original).



             (2) Subject to the limitations imposed by Code Section 24-4-412,
      evidence of a pertinent trait of character of the alleged victim of the
      crime offered by an accused or by the prosecution to rebut the same; or
      evidence of a character trait of peacefulness of the alleged victim offered
      by the prosecution in a homicide case to rebut evidence that the alleged
      victim was the first aggressor; or
             (3) Evidence of the character of a witness, as provided in Code
      Sections 24-6-607, 24-6-608, and 24-6-609.

                                           6
Although the State argued below that the videos were relevant to show opportunity

and preparation, the State has not renewed these arguments on appeal. We therefore

consider whether the videos were relevant, even as extrinsic evidence, to prove

Spriggs’s intent or motive to commit the armed robbery under Rule 404 (b).

      Our Supreme Court has recently clarified that

      evidence that an accused committed an intentional act generally is
      relevant to show — the evidence, in other words, has some tendency to
      make more or less probable — that the same defendant committed a
      similar act with the same sort of intent, especially when the acts were
      committed close in time and in similar circumstances. See generally 2
      Weinstein’s Federal Evidence § 404.22 (1) (a) (“The requisite intent
      may be inferred from the fact that, after being involved in a number of
      similar incidents, the defendant must have had a mental state that is
      inconsistent with innocence.”)[.]


Olds, 299 Ga. at 72 (2) (citations omitted; emphasis supplied.) As the Eleventh

Circuit has noted, “if the extrinsic acts require the same intent as the charged offenses

and if these acts are proximate in time to the charged offenses, then the extrinsic act




                                           7
is highly probative.” United States v. Church, 955 F2d 688, 702 (IV) (A) (11th Cir.

1992) (citation and punctuation omitted; emphasis supplied).5

      In order to prove that Spriggs committed armed robbery, the State would have

to show that Spriggs had “the intent to commit theft and did so with an offensive

weapon or any device having the appearance of such weapon.” Worthy v. State, 237

Ga. App. 565, 567 (2) (515 SE2d 869) (1999), citing OCGA § 16-8-41 (a) (defining

armed robbery) (citation and punctuation omitted). Thus the State might have

obtained admission of the videos at issue if it had shown that Spriggs’s extrinsic act

of making the videos was “a similar act with the same sort of intent” as that of

committing armed robbery. Olds, 299 Ga. at 72 (2) (citation omitted). The State has

not shown, however, that Spriggs’s act of making the videos amounted to any

criminal act, let alone that it required the same or similar intent as the charged offense

of armed robbery. The acts of making the videos and of committing the armed


      5
        “Many provisions of the new Evidence Code were borrowed from the Federal
Rules of Evidence, and when we consider the meaning of these provisions, we look
to decisions of the federal appellate courts construing and applying the Federal Rules,
especially the decisions of the United States Supreme Court and the Eleventh Circuit.
[Cit.] Rule 404(b) is one such provision, see State v. Jones, 297 Ga. 156, 158(1) (773
SE2d 170) (2015), and so, when we have considered the meaning of Rule 404 (b), we
consistently have looked for guidance in the decisions of the federal appellate courts
construing and applying [that Rule].” Olds, 299 Ga. at 69 (2) (citations omitted).

                                            8
robbery are thus not “similar acts” for purposes of Rule 403 because they do not share

“the same sort of intent.” Olds, 299 Ga. at 72 (2) (citations omitted). There is no

evidence here, for example, that any of the statements made in the videos, even if

threatening, identified or were communicated to any prospective victim such that they

could have amounted to a terroristic threat. See, e.g., Sidner v. State, 304 Ga. App.

373, 375-376 (1) (696 SE2d 398) (2010) (reversing conviction for terroristic threats

when there was no evidence that the defendant’s threat was communicated to any

victim). Further, and as the trial court noted, moreover, the State has provided no

evidence that the two acts of making the video and committing the armed robbery

were “committed close in time and in similar circumstances.” Olds, 299 Ga. at 72 (2).

       A recent decision from the Eleventh Circuit provides us with an instructive

scenario as to when a videotape of an extrinsic act would be admissible as probative

and not unduly prejudicial under Rule 404 (b), and confirms our conclusion that the

videos before us do not present such a scenario. In United States v. Hodges, 616 Fed.

Appx. 961 (11th Cir. 2015), “[t]wo witnesses with knowledge testified as to the

contents and the circumstances of discovery” of videos and photographs “taken from

a computer or external hard drive” showing the defendant “sitting beside what

appear[ed] to be marijuana and a digital scale” and also showing “marijuana

                                          9
displayed alongside cash, digital scale, and guns[.]” Id. at 966-967 (3) (C). The

Eleventh Circuit held that the videos and photographs were relevant to Hodges’s

“intent to distribute the marijuana found in the house” as well as his “intent to

exercise control over the guns found outside” the house, and thus to the charged

offenses of possession of marijuana with intent to distribute and possession of

firearms in furtherance of drug trafficking. Id. at 967 (3) (C). A jury could reasonably

conclude that the acts portrayed on the videos in Hodges were committed with the

same criminal intent as those charged, with the result that the videos portraying such

acts would be admissible extrinsic evidence under Rule 404 (b). Here, as we have

noted, Spriggs’s making of the videos was not a criminal act, with the result that the

State has failed to show that the making of the videos and the armed robbery were

either “similar acts with the same sort of intent.” Olds, 299 Ga. at 72 (2).

      The result is the same as to the State’s argument that the videos were

admissible as extrinsic evidence to show motive in the armed robbery. As an example,

the Eleventh Circuit has ruled that prior drug convictions are not only “highly

probative of intent” as to charged drug and firearm offenses, but also “probative of

[the defendant’s] knowledge of the drug trade [as showing] his motive to possess a

gun.” United States v. Johnson, 348 Fed. Appx. 468, 469 (11th Cir. 2009); see also

                                          10
Bradshaw, 296 Ga. at 657 (evidence of a prior murder was relevant to motive

“because it demonstrated [defendant’s] willingness to use violence when he or

someone close to him is cheated in a drug deal”) (citation omitted). By contrast,

Spriggs’s act of making videotapes containing vague threats and showing him in

possession of a gun does not demonstrate motive, as these acts were not in themselves

criminal. Further, the fact that Spriggs possessed a gun in the armed robbery he

allegedly committed “do[es] nothing to distinguish [Spriggs] from most other robbers

or to prove a specific motive for this crime.” Milich, Georgia Rules of Evidence,

2015-2016 ed., § 11.13, pp. 317-318, n. 6. Instead, such facts show only a mere

propensity to commit armed robbery, and are thus inadmissible. Id.

      2. Even if we assume that the videos were relevant to prove intent or motive

to commit the armed robbery, the second part of the test for admission of extrinsic

evidence provides that a trial court may exclude “[r]elevant evidence . . . 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.” OCGA § 24-4-403.

“Even when a trial court determines that all three prongs of the test for admissibility

under OCGA § 24-4-404 (b) are satisfied, the trial court may still exclude the

                                          11
evidence pursuant to OCGA § 24-4-403” as long as that exclusion is not an abuse of

discretion. State v. Brown, 333 Ga. App. 643, 653 (3) (777 SE2d 27) (2015). Here

too, our Supreme Court has given us recent guidance to the effect that “the greater the

tendency to make the existence of a fact more or less probable, the greater the

probative value.” Olds, 299 Ga. at 75 (2).

             [T]he 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. See Milich, Georgia Rules of Evidence § 6.1 (2015)
      (“Probative value refers to the strength of the connection between the
      evidence and what it is offered to prove.”). 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.


Id. at 75-76 (2) (footnotes omitted; emphasis supplied).

      The videos at issue here have not been included in the appellate record, with

the result that notwithstanding the parties’ agreement as to their verbal content, we

must defer to the trial court’s determination that taken as a whole, their prejudicial

effect substantially outweighed their probative value. See State v. Reid, 313 Ga. App.

633, 634-635 (722 SE2d 364) (2012) (where trial court’s judgment was based not

                                          12
only on a video absent from the appellate record, but also on an assessment of

credibility, the appellate court was required to defer to the trial court’s ruling and did

affirm that ruling). As we have already noted, moreover, the State failed to introduce

any evidence as to the time when the videos were made, and the videos themselves

make no reference to any specific victim, such that they have only a tenuous “logical

connection” to Spriggs’s intent to commit the specific armed robbery at issue and thus

little or no probative value as extrinsic evidence. Olds, 299 Ga. at 76 (2); compare

Church, 955 F3d at 702 (IV) (A) (if an extrinsic act “require[s] the same intent as the

charged offenses and is proximate in time to the charged offenses, then the extrinsic

act is highly probative”). Finally, the videos at issue here included statements as to

Spriggs’s involvement in drug dealing, an illegal activity which had no relevance to

the charged crime of armed robbery, but references to which would have been highly

prejudicial. See United States v. Loughry, 660 F3d 965, 972-975 (II) (A) (4), (B) (7th

Cir. 2011) (trial court abused its discretion in admitting child pornography videos, the

probative value of which was substantially outweighed by the danger of unfair

prejudice as to the adult pornography charges at issue such that a new trial was

required). This record thus supports the trial court’s discretionary determination that



                                           13
any probative value the videos might have had was substantially outweighed by their

unduly prejudicial effect.

        For these reasons, we affirm the court’s exclusion of the videos under OCGA

§§ 24-4-403 and 24-4-404 (b). See State v. Dowdell, 335 Ga. App. 773, 781 (783

SE2d 138) (2016) (Peterson, J., concurring specially) (because “the record contains

some support for the trial court’s conclusion that the proffered other-acts evidence

would be of limited probative value,” the appellate court could not “set that

conclusion aside while applying an abuse of discretion standard” to the decision to

exclude that evidence).

        Judgment affirmed. Mercier, J., concurs. Ellington, P. J., concurs in judgment

only.




                                          14
