                                SECOND DIVISION
                                 ANDREWS, P. J.,
                             MILLER and BRANCH, 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 26, 2015




In the Court of Appeals of Georgia
 A15A0136. OLDS v. THE STATE.

      MILLER, Judge.

      Following a jury trial, Vashon Olds was convicted of false imprisonment

(OCGA § 16-5-41 (a)) and battery (OCGA § 16-5-23.1 (a)).1 Olds appeals from the

judgment on his convictions, contending that the trial court abused its discretion in

admitting evidence of similar acts over Olds’s objections. For the reasons, that follow,

we affirm.

      Viewed in the light most favorable to Olds’s convictions,2 the evidence shows

that Olds was a close family friend of the victim, and they were briefly involved in



      1
        The jury acquitted Olds on additional charges of kidnaping and aggravated
assault with intent to rape.
      2
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
a romantic relationship. In February 2009, the victim moved to Albany to attend

college, and she contacted Olds about possibly living in his trailer. The victim and

Olds agreed that the victim and her son would move in with Olds, and the victim

would pay for half of the utilities. The victim and her son each had their own room

and they had their own bathroom that they shared. The victim told Olds that they

would not be resuming their prior romantic relationship, and Olds confirmed that he

understood.

      Shortly after the victim moved in, she and her boyfriend were sitting in a car

outside of her grandmother’s house when Olds pulled up behind their vehicle, got out

of his car, and told the victim’s boyfriend that she was “his lady.” Olds subsequently

apologized for his behavior, and the victim returned to his trailer.

      The next day, the victim told Olds that she was going out of town. She got into

her car, intending to leave, but then realized that she had forgotten her son’s jacket

in the trailer. The victim went inside the trailer and, as she walked into her bedroom,

Olds followed her. When the victim asked Olds what he was doing, he responded that

he was getting ready to take out the trash. The victim then walked down the hallway,

and Olds jumped her from behind, while holding a white tie in his hand. The victim

put her arms up to keep the tie away from her neck and avoid being choked.

                                          2
      The victim begged Olds to let her go, but he told her “you’re not going

anywhere,” and he pushed her onto a chair in his bedroom. Olds then tied up the

victim, picked her up and threw her on the bed. When the victim again begged him

to stop, Olds got on top of her and told her that if she cooperated and shut up, “it’ll

be over with.” Olds began to unbutton and unzip the victim’s pants. The victim

screamed and Olds put his hands over the victim’s nose and mouth so that she could

not breathe.

      Olds then duct taped the victim’s mouth. When she removed the tape, he told

her that if she screamed, he was going to kill her. Olds also told the victim that he was

going to kill himself because he was “not going back to prison.” When the victim

continued to plead with Olds, he turned her over and sat her up on the edge of the

bed. The victim continued to talk to Olds to calm him down, because she was afraid

that he would kill her.

      After about 30 minutes, Olds untied one of the victim’s ties, and picked up a

long blade from a tray beside his bed. The victim was afraid Olds was going to cut

her so she told him to stop and asked him for some water. At that point, the victim

received a phone call from her grandmother; Olds had a brief conversation with the



                                           3
victim’s grandmother; and after the phone call, the victim begged Olds to let her go.

Olds picked up the blade and began to cut the ties off the victim’s arms and stomach.

      Once free, the victim continued to talk to Olds, telling him that she forgave

him, and they could “work it out.” Eventually, the victim asked Olds to walk her to

the car, which he did, after she told him that she would return. The victim drove down

the street, flagged down a police officer about a minute later and told the officer what

had happened.

      At trial, the State presented evidence of extrinsic acts involving Olds’s ex-

girlfriend, T. H. T. H. testified that, in June 1999, Olds called her, told her she had

forgotten something at his house and said he would come over to return the item.

When Olds arrived, T. H. was in the kitchen cooking. Olds came up behind T. H. with

a knife, told T. H. that he was not leaving, said if he could not have her, then nobody

else would, and then cut T. H.’s chin. T. H. yelled for her kids to run out of the house

and struggled with Olds before running to a neighbor’s house.

      The State also presented evidence of extrinsic acts involving K. B., who

testified that, in August 2012, Olds drove her to Walmart to buy a part for her

mother’s car, which he was repairing. After buying the part, Olds and K. B. headed

back to her house when Olds suddenly took a detour, saying that he needed to go to

                                           4
home to grab a missing part. When they arrived at Olds’s home, he told K. B. that she

could not stay in his car, so she followed him up to his room. After looking around,

Olds told K. B. that he could not find the missing part, so K. B. turned towards the

door to leave. Olds grabbed K. B. from behind and threw her onto the bed. Olds then

forcibly held K. B. down, pulled down her shorts and underwear and placed his

tongue on her vagina.

      K. B. told Olds to stop and tried to push him away, but he refused to stop and

he then tried to insert his penis into her vagina. When K. B. grabbed Olds’s penis and

scratched his leg and back, Olds got off of her. After Olds drove K. B. home, she told

her mother what had happened, and her mother immediately called the police.

      In his sole enumeration of error, Olds contends that the trial court erred in

admitting evidence of extrinsic acts over his objection. We disagree.

      Because this case was tried after January 1, 2013, Georgia’s new Evidence

Code applies. See Ga. L. 2011, Act. 52, § 101; Bradshaw v. State, 296 Ga. 650, 655

(3) (769 SE2d 892) (2015). OCGA § 24-4-404 (b) of the new Evidence Code

provides:

      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


                                          5
      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.


Accordingly, in determining the admissibility of evidence of extrinsic crimes and acts

under OCGA § 24-4-404 (b), we apply a three-part test adopted from the Eleventh

Circuit, which provides:

      (1) the evidence must be relevant to an issue other than defendant’s
      character; (2) the probative value must not be substantially outweighed
      by its undue prejudice; (3) the government must offer sufficient proof
      so that the jury could find that defendant committed the act.3


(Citation omitted.) Bradshaw, supra, at 296 Ga. at 656 (3).

      Under OCGA § 24-4-403, which mirrors Federal Rule of Evidence 403,

      [r]elevant 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.




      3
        With regard to the third prong of this test, “[extrinsic] acts evidence may be
admitted if the [trial] court concludes that the evidence is sufficient for the jury to
find by a preponderance of the evidence that the other act was committed.” (Citation
omitted.) Bradshaw, supra, 296 Ga. at 656 (3), n.4.

                                           6
See id. at 655 (3). We review the trial court’s decision to admit evidence under

OCGA § 24-4-404 (b) for a clear abuse of discretion. Id. at 656 (3).

      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

Olds’s character. At trial, the trial court admitted evidence of Olds’s extrinsic acts to

show his intent, identity, motive and opportunity and to disprove mistake or accident.

With regard to intent, Olds argues that his intent was not at issue because the issue

was whether the crimes in this case actually happened.4 Contrary to Olds’s

contention,

      [a] defendant who enters a not-guilty plea makes intent a material issue
      which imposes a substantial burden on the government to prove intent,
      which it may prove by qualifying [extrinsic] evidence absent affirmative
      steps by the defendant to remove intent as an issue. Where the extrinsic
      offense is offered to prove intent, its relevance is determined by
      comparing the defendant’s state of mind in perpetrating both the
      extrinsic and charged offenses. Thus, where the state of mind required
      for the charged and extrinsic offenses is the same, the first prong of the
      [extrinsic evidence] test is satisfied.




      4
       At trial, Olds argued that the victim lied about the crimes after he told her that
she needed to find somewhere else to live.

                                           7
(Citations and punctuation omitted.) United States v. Edouard, 485 F3d 1324, 1345

(II) (C) (1) (11th Cir. 2007).

      In this case, the charged offenses included aggravated assault. By pleading not

guilty, Olds made his intent a material issue, and he took no affirmative steps before

trial to indicate that the State was relieved from proving intent. See Edouard, 485 F3d

at 1345 (II) (C) (1). With regard to Olds’s state of mind, the charged offense of

aggravated assault and both of the extrinsic acts are very similar since all three

offenses involve violent assaults on female acquaintances whom Olds attacked from

behind. Clearly, all three offenses involved the same state of mind – Olds’s intent to

harm women he knew by attacking them from behind. Therefore, the evidence of

Olds’s extrinsic acts was plainly relevant to the issue of intent, and the first prong was

satisfied.5 See United State v. Zapata, 139 F3d 1355, 1358 (11th Cir. 1998).

      With regard to the second prong, we are satisfied that the trial court did not

clearly abuse its discretion in determining that the probative value of evidence of the

extrinsic acts was not substantially outweighed by its prejudicial effect. Similarity

between the charged offense and the extrinsic acts is one factor that may be

      5
       Since we determine that evidence of the extrinsic acts was admissible to prove
Olds’s intent, we need not address his additional arguments that evidence of those
acts was not relevant to show plan or motive.

                                            8
considered in determining probative value. See Edouard, supra, 139 F3d at 1345 (II)

(C) (1); Bradshaw, supra, 296 Ga. at 657 (3). As set forth above, the charged offense

of aggravated assault and the two extrinsic acts were very similar since all three acts

involved Olds’s violent attacks on women her knew from behind. Moreover, any

unfair prejudice caused by admitting evidence of the extrinsic acts was mitigated by

the trial court’s detailed limiting instructions to the jury. See Edouard, supra, 139 F3d

at 1346 (II) (C) (1); Zapata, supra, 139 F3d at 1358.

      Finally, we conclude that the third prong is satisfied. T. H. testified that Olds

attacked her from behind in 1999, K. B. testified that Olds attacked her from behind

in 2012, and Olds presented no evidence to rebut their testimony. Given T. H. and K.

B.’s detailed and unrebutted testimony about those attacks, a jury could have found

by a preponderance of the evidence that Olds’s committed the extrinsic acts. See

Edouard, supra, 139 F3d at 1345 (II) (C) (1). Accordingly, we conclude that the trial

court did not clearly abuse its discretion by admitting evidence of the extrinsic acts,

and we affirm Olds’s convictions.

      Judgment affirmed. Andrews, P. J., and Branch, J., concur.




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