                              FOURTH DIVISION
                                 BARNES, P. J.,
                            RAY, and MCMILLIAN, 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 8, 2015


In the Court of Appeals of Georgia
 A15A0610. POWELL v. THE STATE.

      BARNES, Presiding Judge.

      A jury acquitted Evelyn Powell of aggravated assault with a knife but

convicted her of family violence battery, family violence terroristic threats and two

counts of cruelty to children in the third degree for having committed aggravated

assault and battery in the presence of a minor. On appeal, she argues that the trial

court erred in allowing the State to introduce similar transaction evidence and that the

error was not harmless. For the reasons that follow, we affirm.

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

that the 13-year-old victim, her 16-year-old sister, and her 19-year-old sister and her

baby lived with their grandparents, Powell and her husband, along with other family

members. On the day of the incident that led to the charges against Powell, Powell

became angry when the victim would not give her letters addressed to other family

members. Powell followed the victim into her bedroom, grabbed her shirt, “jacked
[her] up,” and scratched her neck. The victim got loose and Powell started to walk

away, then turned and shoved the victim into a wall. One of the victim’s sisters heard

a “boom” and came out of her bathroom to find the victim sitting on the floor crying.

Powell went into the kitchen, grabbed a knife, and came toward the victim with it

while threatening to kill her. Another sister came out of her room and asked Powell

why she was chasing the victim with a knife, and Powell said, “I’m going to kill you,

bitch.”

      The victim and her sisters all testified that Powell had previously threatened

the victim with a knife whenever she became angry, which was often. Powell also

accused the victim and her sisters of having inappropriate relations with their

grandfather, Powell’s husband, when she was mad. Shortly before this incident,

Powell came up behind the victim while she was washing dishes and poked her in the

back and leg with a knife because she was angry about something, and the victim

went into her sister’s room to get away.

      A patrol officer responded to the call about a domestic dispute. The victim had

been crying, was shaking, and had “a huge knot on her forehead over her right eye.”

Powell said she pushed the victim because she refused to be disrespected, but denied

pushing her into a wall. She also denied threatening the victim with a knife,

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explaining to an investigator that she had been in her bedroom cutting up onions for

her soup and stood up holding the knife when she overheard someone talking about

her.

       Powell’s daughter testified that she called the police on a different occasion

because her mother was drunk and throwing things in the kitchen. The responding

officer testified that the kitchen was in disarray and the daughter said Powell had

pulled a knife on her. Powell would not talk to the officers and began disrobing so

they would leave the room. As the officers stood in the front room, the daughter told

them that if Powell came at her with a knife again, she was going “to do what I’ve got

to do,” and Powell came into the room and said, “Well, I’ll kill her.” Once the officers

decided to take Powell into custody, the daughter became very uncooperative, and at

trial she denied telling the officer that Powell had pulled a knife and threatened to kill

her.

       1. While Powell did not assert on appeal that the evidence was insufficient to

sustain her conviction, the evidence as outlined above was sufficient to authorize the

jury to find her guilty of family violence simple battery, terroristic threats, and cruelty

to children in the third degree. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61

LE2d 560) (1979); Holsey v. State, 316 Ga. App. 801, 803-804 (1) (729 SE2d 465)

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(2012); Simmons v. State, 285 Ga. App. 129, 130 (645 SE2d 622) (2007); Price v.

State, 281 Ga. App. 844, 845 (1) (637 SE2d 468) (2006).

      2. Powell contends that the trial court erred in allowing the State to introduce

the similar transaction evidence, arguing that the evidence was not probative of any

of the issues it was admitted to prove, and that any probative value was far

outweighed by its prejudicial effect.

      The State filed a motion to present similar transaction evidence that Powell

pled guilty in 1999 to simple assault for throwing a ceramic plate of hot spaghetti at

her husband, and Powell filed a motion in limine to keep out any evidence regarding

an altercation between Powell and the victim two days before the one that resulted in

the charges being tried. After a hearing on the motions, the trial court issued an order

granting the State’s motion and denying Powell’s, finding the evidence admissible to

show intent, lack of mistake, and motive. Powell’s husband declined to testify,

relying on marital privilege and the State did not present evidence regarding the 1999

simple assault. It did introduce evidence that Powell poked the victim with a knife a

few days before the July 2010 incident for which she was on trial and that she had

threatened her daughter with a knife and been arrested for it in March 2013.



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      Because Powell’s trial was held after January 1, 2013, Georgia’s new Evidence

Code governs this contention. OCGA § 24-4-404 (b) of the new 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
      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. …


Moreover, under OCGA § 24-4-403, “[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.”

      Evidence of other crimes and acts is admissible if it meets three criteria: “(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.” Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015).

We will affirm a trial court’s decision to admit evidence under OCGA § 24-4-404

absent “a clear abuse of discretion.” Id.




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      a. Powell argues that there was no probative value in the evidence of other acts

because it was not relevant to show her intent, lack of mistake, or motive. With regard

to intent, the State must always prove the intent of a defendant who pleads not guilty.

“[A]bsent affirmative steps by the defendant to remove intent as an issue,” if the state

of mind required for both the charged offenses and the other act are the same, [the

other act is relevant] and the first prong is met. Bradshaw, 296 Ga. at 656-657 (3).

Further, Powell told the investigator that she just stood up with the knife in her hand

while cutting onions, which would suggest a lack of intent that the State was entitled

to rebut. Here, the charged offenses of battery and terroristic threats and the other acts

“involve the same mental state and appellant did not take steps to remove intent as

an issue, evidence of the [prior acts] was relevant to establish [her] intent. Id. at 657.

And as the evidence was admissible to prove intent, we need not consider whether it

was also admissible for other reasons.

      b. Under the revised code, “[r]elevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,” and Powell

argues that even if the other acts evidence here was relevant, it should have been

excluded as too prejudicial. She contends that because the other acts were exactly the

same crime she was accused of here — threatening to kill someone with a knife —

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evidence about them was only probative of a propensity for doing that exact thing.

Therefore, she concludes, the risk was great that the jury would judge her on her

character for threatening family members with knives instead of on her actions in this

case, and the trial court abused its discretion in allowing the evidence.

      Our Supreme Court has quoted with approval cases from the United States

Court of Appeals for the Eleventh Circuit holding that a trial court’s discretion to

exclude evidence of other acts because of undue prejudice “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.) Bradshaw, 296

Ga. at 658. Balancing the prejudicial effect against the probative value “lies within

the discretion of the [trial] court and calls for a common sense assessment of all the

circumstances surrounding the extrinsic offense, including prosecutorial need, overall

similarity between the extrinsic act and the charged offense, as well as temporal

remoteness.” (Citation and punctuation omitted.) Bradshaw, 296 Ga. at 657-658 (3).

      Further, the trial court gave the jury limiting instructions before Powell’s

daughter testified about the March 2013 incident, charging the jury that to prove that

Powell committed the charged offenses, the State was required to show intent, to

negate or disprove mistake, and was allowed to show motive. The court further

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instructed the jury that it was “permitted to consider the evidence only insofar as it

may relate to those issues and not for any other purpose. You may not infer from such

evidence that the defendant is of a character that will commit such crimes.” In its final

instructions to the jury, the court gave a lengthy charge on the limited use for which

the jury could consider the evidence of other acts.

          Here, “[t]he similarity between the two crimes and the facts relating thereto

make the former [act] highly probative of the defendant’s intent,” and “the risk of

undue prejudice to [Powell] was reduced by the court’s limiting instruction.” U.S. v.

Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). Given the circumstances, we cannot

say that the trial court abused its discretion in finding that the probative value of the

similar transaction evidence was not substantially outweighed by its prejudicial

effect.

          Judgment affirmed. Ray and McMillian, JJ., concur.




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