FINAL COPY
294 Ga. 673

                        S13A1524. REEVES v. THE STATE.

       BENHAM, Justice.

       Appellant Robert Lee Reeves, Jr., was sentenced to life imprisonment

upon the jury’s verdict finding him guilty of felony murder predicated upon

aggravated assault.1 The trial court denied appellant’s motion for new trial

brought on the ground of insufficiency of the evidence and on the ground that

evidence of a prior attempted rape for which he was previously convicted was

improperly admitted as a similar transaction. For the reasons set forth below,

we affirm.

       Viewed in the light most favorable to the verdict, the evidence showed the

       1
          The crime occurred on or about July 28, 2009, and the Bibb County grand jury returned
an indictment on May 4, 2010, charging appellant with malice murder and felony murder
(aggravated assault by strangulation with his hand or another unknown object). Appellant was
tried December 7 and 8, 2010, and the jury found him guilty of felony murder. The trial court
also found appellant guilty of violating conditions of his probation for four other felony
convictions, revoked his probation for these convictions, and sentenced appellant to life in prison
to be served concurrently with the probation revocations. On December 9, 2010, appellant filed
a motion for new trial which was later amended. After a hearing, the trial court denied
appellant’s motion for new trial by order filed October 3, 2012. Appellant filed a timely notice
of appeal on November 1, 2012, and the case was docketed in this Court to the September 2013
term for a decision to be made on the briefs.
body of victim Crystal Morgan was discovered along a wooded path in Macon

on the morning of July 29, 2009. The investigating officer testified that

evidence at the crime scene showed there had been a struggle. The autopsy

noted superficial lacerations in the anal area and inside the vagina that appeared

to have occurred at or near the time of death. The victim had injuries around her

neck and petechial pinpoint hemorrhages in the eyes which were consistent with

strangulation. Although markings on the victim’s body were more consistent

with strangulation from some type of ligature, the medical examiner could not

rule out manual strangulation. The victim’s underpants were down to her knees

and dirt was discovered on the victim’s hands, face and sandals. Male DNA

taken from the victim’s body was placed in a sexual assault kit and was later

matched to the appellant’s DNA recorded in a database and also to DNA from

a buccal swab taken from appellant by police investigators. No other male DNA

was found in the samples taken from the victim’s body. The State also

presented similar transaction evidence discussed further in Division 2.

      1. We reject appellant’s assertion that the conviction should be reversed

because the evidence was legally insufficient to support it. Although appellant

presented no evidence to support it, appellant’s attorney argued to the jury the

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theory that appellant, in the days immediately prior to the victim’s murder, had

consensual sexual relations with the victim but that some other person, who had

possibly used a condom, had committed the acts that ended in the victim’s death.

He pointed to the evidence that a condom wrapper was found at the scene of the

crime close to the victim’s body. Appellant argues on appeal that, because the

prosecution failed to rebut this hypothesis by providing evidence of the victim’s

movements in the days immediately leading up to the estimated time of death

and failed to establish he and the victim were strangers, it would have been

irrational for any juror to dismiss the theory that his DNA was present as the

result of consensual sex and that someone else had committed the crime

charged. He asserts this hypothesis created a reasonable doubt based upon

common sense and reason that defeats the requirement of OCGA § 24-4-6: “To

warrant a conviction on circumstantial evidence, the proved facts shall not only

be consistent with the hypothesis of guilt, but shall exclude every other

reasonable hypotheses save that of the guilt of the accused.”2

      “Whether the evidence excludes every other reasonable hypothesis is

ordinarily a question for the jury, whose finding shall not be disturbed unless the

      2
          This evidentiary rule is now found at OCGA § 24-14-6.

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verdict of guilt is unsupportable as a matter of law.” Owens v. State, 286 Ga.

821, 825 (1) (693 SE2d 490) (2010). Further,

      circumstantial evidence must exclude only reasonable inferences
      and hypotheses and it is not necessary that such evidence be devoid
      of every inference or hypothesis except that of the defendant’s guilt.
      The question of whether there was a reasonable hypothesis
      favorable to the accused is a question for the jury. If a jury is
      authorized to find that the evidence, circumstantial though it may
      be, is sufficient to exclude every reasonable hypothesis save that of
      guilt, the verdict of the jury will not be disturbed by the appellate
      court unless the verdict is insupportable as a matter of law.


(Citations and punctuation omitted.) White v. State, 263 Ga. 94, 97 (1) (428

SE2d 789) (1993). The record reflects the jury was properly charged that, in

order to convict on circumstantial evidence, “the facts must not only be

consistent with the theory of guilt, but must exclude every other reasonable

theory other than the guilt of the accused.” It is apparent from the verdict that

the jury in this case found the state had excluded all reasonable hypotheses

except that of guilt. “After reviewing the evidence in a light most favorable to

the prosecution, we find that the evidence is sufficient to have authorized the

jury to find that the state excluded all reasonable hypotheses except that of the

defendant’s guilt, and to have authorized any rational trier of fact to find the


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defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307

(99 SC 2781, 61 LE2d 560) (1979).” Roper v. State, 263 Ga. 201, 202 (1) (429

SE2d 668) (1993) (overruling on other grounds recognized in Clark v. State,

271 Ga. 6 (5) (515 SE2d 155) (1999)).

      2. We also reject appellant’s assertion that the conviction should be

reversed because evidence of a prior offense was improperly admitted because

the two transactions were not sufficiently similar.

      Based on a guilty plea to criminal attempt to commit rape, entered by

appellant on October 28, 1998, the state filed a notice of intent to introduce

evidence of a similar transaction. After a hearing as required by Uniform

Superior Court Rule 31.3, the trial court allowed the evidence to be introduced

to show the appellant’s course of conduct and bent of mind, after a limiting

instruction was given to the jury. Before evidence of a similar transaction may

be introduced, the state must make three affirmative showings: (1) it must

identify a proper purpose for admitting the transaction; (2) show that the

accused committed the independent offense; and (3) show a sufficient similarity

between the independent offense and the crime charged so that proof of the

former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409

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SE2d 649) (1991). Here, the second element is undisputed as appellant pleaded

guilty to the 1998 attempted rape. With respect to the first element, the state

filed a notice of intent to produce evidence of a similar transaction for the

purpose of showing course of conduct, intent, modus operandi, scheme, and bent

of mind, all of which were appropriate purposes under Georgia law at the time

of appellant’s trial.3 The issue in this case is whether sufficient similarity exists

between the two transactions. The trial court conducted the necessary hearing

and, taking into consideration the challenges raised by appellant, it entered an

order finding the evidence admissible because the prior transaction was

sufficiently similar to the crime charged so that proof of the former tended to

prove the latter. The trial court further found the relevance of the similar

transaction evidence outweighed the “inherent prejudice it creates.” Before the

victim of the 1998 attempted rape testified at trial, the court gave appropriate

limiting instructions regarding the purpose for which the jury could consider her


       3
           Appellant was tried in 2010 under Georgia’s old Evidence Code, under which courts
routinely admitted similar transaction evidence for purposes such as bent of mind or course of
conduct. See Matthews v. State, 294 Ga. 50, 52 (3) (a) (751 SE2d 78) (2013). Georgia’s new
Evidence Code, which applies to trials conducted after January 1, 2013, see Ga. L. 2011, p. 99, §
101, allows admission of “evidence of other crimes, wrongs, or acts” for purposes “including, but
not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.” OCGA § 24-4-404 (b).

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testimony.

      The victim of the earlier crime testified appellant followed her when he

saw her walking alone toward a store in the same area of Macon where the

victim’s body was discovered, and that he grabbed her around the neck, pulled

her to the ground, pushed her face to the grass, tried to pull her shorts down,

and, after choking her with his hands, put his fingers inside her, but she escaped.

The victim’s testimony established the following similarities between the two

acts: the two victims were both approximately the same age at the time they

were attacked; although the transcript does not establish the previous victim’s

race, the trial court noted in its order that both victims were young African-

American women; both victims were choked or strangled; in both instances, the

victim’s clothing was torn and her pants or underpants were pulled down; in

both instances, the victim’s face was pressed into the ground and the victim was

sexually assaulted; although they occurred at different locations, each attack

occurred in the summer on a path through a wooded empty lot and the lots were

within blocks of each other; the 1998 attack occurred at night while the victim

was walking alone and the crime at issue in this case apparently occurred at

night or in the pre-dawn hours also while the victim was walking alone.

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      In Reed v. State, 291 Ga. 10 (727 SE2d 112) (2012), this Court clarified

the standard by which an appellate court reviews the trial court’s ruling to admit

evidence of similar transactions in a criminal case. Evidentiary rulings are

reviewed under an abuse of discretion standard, which, we noted in Reed, is

different from and not as deferential as the clearly erroneous/any evidence

standard of review. Id. at 13. The trial court’s factual findings, however, are

accepted on appellate review unless clearly erroneous where the purpose of the

finding, as in the case of a ruling on the admission of similar transaction

evidence, is the application of a mandatory test. Id. at 14. Accordingly, we will

not disturb the findings on the issue of similarity or connection of similar

transaction evidence unless the finding is clearly erroneous. Id.

      Appellant relies upon certain differences in the evidence between the two

crimes, but the proper focus in a similar transaction case is on the similarities

between the two transactions and not the differences. See Hinton v. State, 280

Ga. 811, 818 (6) (631 SE2d 365) (2006). We note that “[w]hile some aspects

of the earlier crime differed from the one for which [appellant] was on trial, the

similarities are striking.” Ellis v. State, 282 Ga. App. 17, 24 (3) (c) (637 SE2d

729) (2006). Appellant also asserts the lapse in time between the two incidents

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was too great for the similar transaction evidence to be admissible. Lapse of

time between the similar transaction and the crime at issue “generally goes to the

weight and credibility of the evidence, not to its admissibility.” (Citation and

punctuation omitted.) Wheeler v. State, 290 Ga. 817, 818 (2) (725 SE2d 580)

(2012).     Further, “[t]he exception to the general rule that evidence of

independent crimes is inadmissible has been most liberally extended in the area

of sexual offenses.” Johnson v. State, 242 Ga. 649, 653 (3) (250 SE2d 394)

(1978).4 Just as in the Reed case, here the trial court’s factual findings regarding

similarity of the two transactions are not clearly erroneous. Thus, we find the

trial court did not abuse its discretion in admitting the challenged evidence.

       Judgment affirmed. All the Justices concur.




       4
         Although appellant was not charged in this case with a sexual offense, the evidence shows
the aggravated assault upon which the felony murder conviction was predicated involved a sexual
assault.

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                           Decided March 3, 2014.
      Murder. Bibb Superior Court. Before Judge Christian, Senior Judge.
      David J. Walker, for appellant.
      K. David Cooke, Jr., District Attorney, Nancy S. Malcor, Dorothy V. Hull,
Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Rochelle W. Gordon, Assistant Attorney General, for
appellee.




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