                               THIRD DIVISION
                              MCFADDEN, C. J.,
                          DOYLE, P. J., and HODGES, 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.
                     Please refer to the Supreme Court of Georgia Judicial
                     Emergency Order of March 14, 2020 for further
                     information at (https://www.gaappeals.us/rules).


                                                                        June 3, 2020




In the Court of Appeals of Georgia
 A20A0579. WESTBROOK v. THE STATE.                                             DO-022 C

      DOYLE, Presiding Judge.

      Following a jury trial, Silas Redgize Westbrook, Jr., was convicted of armed

robbery, violation of the Georgia Street Gang Terrorism and Prevention Act

(“GSGTPA”),1 and possession of a firearm during the commission of a felony. He

appeals from the denial of his motion for new trial, contending that the trial court

erred by admitting evidence of his prior guilty plea to armed robbery in 2000 under

OCGA § 24-4-404 (b). For the reasons that follow, we affirm.

      Construed in favor of the verdict,2 the evidence shows that on November 14,

2014, Tometrius King robbed a Brothers convenience store at approximately 8:00


      1
          OCGA § 16-15-1 et seq.
      2
          See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
a.m.3 As described by store employees, King entered the store, pointed a gun at one

of the employees, and demanded money, saying, “give it up, bitch.” The employee

gave him the money from the cash drawer, and King fled. As King ran out of the

store, another store worker grabbed a machete and chased King as he fled the scene.

King turned and shot at the worker, who immediately laid on the ground to avoid

being hit. A video surveillance system recorded the robbery and shooting, and it

captured a white sedan driving by at the time of the robbery.

      The same day, November 14, 2014, shortly after 8:30 a.m., the same man

robbed a nearby Mini Mart convenience store at gunpoint. Video cameras captured

the same white car, which had the make and model badges removed, tinted windows,

and distinctive tail lights and chrome rims. In both robberies, the car appeared to park

strategically in nearby locations to avoid detection and aid in quick departure.

      In the ensuing investigation, police were able to determine that the white car

used in both robberies was registered to Westbrook’s wife. Police set up a

surveillance operation at the location where the car was parked, and shortly thereafter,

Westbrook approached the vehicle. At this point, five days after the robberies,



      3
          King pleaded guilty to the crimes arising from the robbery.

                                           2
Westbrook was interviewed by police and agreed to talk after waiving his Miranda4

rights.

          In the interview, Westbrook first denied that he knew King, but then admitted

that he knew King as his nephew. On the morning of the robberies, he agreed to give

King a ride to a store, and after giving conflicting accounts, he admitted that he

agreed to give King a ride to a second location soon after hearing gunshots. Police

also interviewed King, who implicated Westbrook in the robberies, explaining that

Westbrook was recruiting him into the Gangster Disciples street gang. King said that

the robberies were a way of gaining membership and status in the organization.

          Based on these events, King and Westbrook were charged in a multi-count

indictment alleging, in relevant part, that Westbrook committed two counts of armed

robbery, one count of violating the GSGTPA, and two counts of possessing a firearm

during the commission of a felony. King ultimately pleaded guilty to the robberies,

and in exchange for a favorable sentencing request from the State, he testified against

Westbrook in a jury trial. The jury found Westbrook guilty of four of the counts,

acquitting him of one armed robbery (the Brothers store) and the corresponding

firearm count. After his motion for new trial was denied, Westbrook filed this appeal.

          4
              Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

                                             3
      Westbrook contends that the trial court abused its discretion by admitting

evidence under OCGA § 24-4-404 (b) that he pleaded guilty in 2000 to an armed

robbery that he committed in 1999 when he was 16.5 We disagree.

      Under OCGA § 24-4-404 (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.


      The party offering evidence under OCGA § 24-4-404 (b) must show
      three things: (1) the evidence is relevant to an issue in the case other
      than the defendant’s character; (2) the probative value of the evidence
      is not substantially outweighed by its undue prejudice; and (3) there is
      sufficient proof for a jury to find by a preponderance of the evidence
      that the defendant committed the other act.6




      5
        The State provided the appropriate pre-trial notice of its intention to introduce
the evidence. See OCGA § 24-4-404 (b) (“The prosecution in a criminal proceeding
shall provide reasonable notice to the defense in advance of trial. . . .”).
      6
          Kirby v. State, 304 Ga. 472, 479 (4) (819 SE2d 468) (2018).

                                           4
“A trial court’s decision to admit other acts evidence under OCGA § 24-4-404 (b)

will be overturned [on direct appeal] only where this is a clear abuse of discretion.”7

      Here, the State offered the 404 (b) evidence at issue via testimony from an

officer who investigated and arrested Westbrook for the 1999 robbery and through

a certified copy of his conviction pursuant to a guilty plea. This evidence showed that

in the 1999 offense, Westbrook stole money at gunpoint from a convenience store.

He also stole the store security video tape, but he was observed by witnesses who

were able to identify him, leading to his arrest. He acted alone.

      1. Relevance to an issue other than character. For evidentiary purposes, OCGA

§ 24-4-401 defines relevance as “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.” Notably, the relevance definition

only requires “any tendency” to make a fact more probable or less probable, so the

standard is a liberal one.8




      7
          Green v. State, 352 Ga. App. 284, 291 (2) (e) (834 SE2d 378) (2019).
      8
        See State v. Jones, 297 Ga. 156, 159 n. 2 (773 SE2d 170) (2015) (“Regardless
of how one views the language of Rule 401 [defining relevance], . . . it is clear that
the relevance standard codified therein is a liberal one.”).

                                          5
      The State offered the evidence initially to prove “[a]bsence of mistake or

accident, intent, knowledge, motive, preparation[,] and plan, as well as opportunity,”

later focusing its argument on intent and absence of mistake. The evidence showed

that Westbrook’s involvement was limited to recruiting King to do the robberies,

supplying him with a firearm, and acting as a driver — he did not personally enter the

stores and steal the money. Based on this, Westbrook argued that King acted of his

own accord and that Westbrook was both ignorant of King’s plan and intent to rob

the stores when he gave King a ride in his vehicle, and Westbrook testified that he

was intimidated by the fact that King had a gun: “you can fight a man, but you can’t

beat a bullet.” Therefore, Westbrook’s motive and intent in giving King a ride were

squarely at issue in the trial, and the earlier armed robbery required a comparable

intent to rob that Westbrook was accused of having in this case.9 Therefore, the State

met its burden to show a permissible purpose for admitting the 2000 conviction other

than Westbrook’s character.10




      9
        See United States v. Lockhart, 731 Fed. Appx. 842, 845 (I) (B) (Case No. 17-
11800,11th Cir. 2018) (unpublished) (“a ‘mere presence’ defense puts knowledge and
intent at issue”).
      10
           See Sloan v. State, 351 Ga. App. 199, 209 (2) (e) (i) (830 SE2d 571) (2019).

                                            6
      2. Probative value is not substantially outweighed by undue prejudice.

Weighing the relative probative value and undue prejudice

      must be done on a case-by-case basis and requires a common sense
      assessment of all the circumstances surrounding the extrinsic act and the
      charged offense. In considering the probative value of evidence offered
      to prove intent, [relevant] circumstances include the prosecutorial need
      for the extrinsic evidence, the overall similarity between the extrinsic act
      and the charged offense, and the temporal remoteness of the other act.11


      As noted above, there was no evidence that Westbrook himself was the gunman

or robber; rather, the evidence showed that Westbrook’s involvement was peripheral,

even if he was a party to the second robbery as the getaway driver.12 Showing

Westbrook’s actual participation, rather than mere presence, was crucial to the State.13




      11
           (Citation and punctuation omitted.) Kirby, 304 Ga. at 481 (4) (a).
      12
           As noted above, the jury acquitted Westbrook of participation in the first
robbery.
      13
         Cf. State v. Watson, __Ga. App. __ (2) (Case No. A19A2358, decided Mar.
9, 2020) (holding that the trial court did not abuse its discretion in excluding the
extrinsic evidence because the defendant was directly involved and the case hinged
on identity, not intent: “the State’s need to have more evidence to prove motive,
intent, and knowledge [becomes] very low because those issues are obvious to a fact
finder after the identity of the perpetrator is determined”).

                                           7
Therefore, the State’s need for the evidence was not merely a pretextual disguise

masking its prejudicial effect:14

      The classic situations calling for admissibility of independent crimes or
      acts to prove intent are when the defendant admits a certain involvement
      in the criminal incident but maintains he was duped or forced to go
      along and thus lacked the necessary criminal intent or the defendant
      admits the charged conduct but claims he did not intend to act
      criminally.15


      Although robbing a convenience store at gunpoint is not tantamount to rocket

science, familiarity with the commission and planning of the offense certainly renders

one less naive about the perpetrator’s conduct and demeanor leading up to one. For

example, after King committed the first robbery and shot at the clerk, Westbrook

proclaimed ignorance about King’s conduct and intent when he drove King to a

second location to commit the second robbery. The evidence that Westbrook had

prior experience with armed robbery, including the shrewdness to steal the store

surveillance tape in 1999, is highly probative of his intent as he drove King to the

      14
         See generally Williams v. State, 328 Ga. App. 876, 879-880 (1) (763 SE2d
261) (2014) (The “primary function of [the probative/prejudicial balancing test] is to
exclude evidence of scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect.”) (punctuation omitted).
      15
           Sloan, 351 Ga. App. at 209 (2) (e) (i).

                                            8
second location and parked strategically nearby to afford a discreet getaway. The

prior robbery shared many of the same traits, including the type of establishment and

the type of weapon, and there was little in the execution of the acts that distinguished

them from each other, aside from the fact that Westbrook apparently acted alone in

the 1999 robbery. That Westbrook in this case acted as the wheelman instead of the

gunman does not alter the intent shared by both cases, i.e., to rob the store of its cash.

The lack of recency of the 1999 robbery is attenuated by the fact that Westbrook was

incarcerated for at least 10 of the intervening 17 years.16

      With respect to the undue prejudicial effect, the character of the prior offense

was the same as the armed robbery in this case, so there was no chance of improperly

impugning Westbrook’s character with an unrelated offense.17 Further, “when the

evidence of the [2000 conviction] was presented, the jury learned that [Westbrook]

had already admitted his guilt and been convicted and served a prison sentence for

his [earlier] conduct, making it less likely that the jury would want to punish



      16
         See Kirby, 304 Ga. at 484 (4) (a) (i) (“[T]he prior crime need not be very
recent, especially where a substantial portion of the gap in time occurred while the
defendant was incarcerated.”).
      17
        See generally id. (noting that a prior crime of an entirely different character
is more prejudicial).

                                            9
[Westbrook] for this past conduct rather than the charged crimes.”18 Finally, there was

independent, properly admitted evidence that Westbrook was a gang member seeking

to recruit others by committing crimes, so evidence that Westbrook had committed

another crime was not highly prejudicial, given this record. Accordingly, the trial

court was within its discretion to find that the probative value was not substantially

outweighed by undue prejudicial effect.

      3. Proof that Westbrook committed the extrinsic acts. Westbrook does not

challenge the existence of his prior conviction, which was proved by a certified copy

and testimony from the arresting officer. Thus, the State met this element of the Rule

404 (b) analysis.

      In sum, based on the record before us, including the State’s need to prove the

intent and purpose of Westbrook’s conduct in light of his defense claiming mere

presence at the scene, we discern no basis for reversal.

      Judgment affirmed. McFadden, C. J., and Hodges, J., concur.




      18
           Id. at 485 (4) (a) (i).

                                          10
