In the Supreme Court of Georgia



                                                 Decided: June 2, 2014


                       S14A0218. DESIRE v. THE STATE.


       THOMPSON, Chief Justice.

       Appellant Andre Desire was convicted of felony murder and theft by

taking in connection with the strangulation death of Amado Diaz-Avila.1 His

motion for new trial was denied, and he appeals, asserting that the trial court

erred by permitting the State to present evidence of his drug use and prior thefts.

Finding no error, we affirm.


       1
          The crimes occurred on January 15, 2010. Appellant was indicted by a Candler
County grand jury on March 23, 2011, on charges of murder, felony murder, aggravated
assault, theft by taking, and two counts of possession of a knife during the commission of a
crime. After a jury trial on September 6-7, 2011, appellant was found guilty of felony
murder, aggravated assault, and theft by taking. He was sentenced on September 16, 2011,
to life imprisonment without the possibility of parole for his felony murder conviction, a
twenty-year consecutive term of imprisonment for his aggravated assault conviction, and a
consecutive ten-year term of imprisonment for his conviction for theft by taking. His motion
for new trial was filed on September 16, 2011. An amended motion for new trial, filed on
March 1, 2013, was denied in an August 12, 2013, order in which the trial court also
determined the charge of aggravated assault should have merged into the felony murder
conviction. Appellant was re-sentenced on August 9, 2013, nunc pro tunc to September 14,
2011, to life in prison without the possibility of parole and a consecutive ten-year term of
imprisonment. A notice of appeal was filed on August 16, 2013. The appeal was docketed
in this Court for the January 2014 term and submitted for decision on the briefs.
      1. Viewed in the light most favorable to the jury’s verdict, the evidence

showed that on the afternoon of the crimes, appellant and Joe Medina went in

Medina’s red Jeep to the victim’s apartment building, where they attempted to

sell a stereo speaker by aggressively knocking on doors and approaching people

who were standing outside. The victim, who had been paid that day and had

several hundred dollars cash in his possession, agreed to purchase the speaker

for $20. Appellant and the victim left to retrieve the speaker and upon their

return, appellant placed the speaker in the victim’s apartment. Later that night,

appellant returned to the victim’s apartment and after a confrontation, he fatally

strangled, beat, and stabbed the victim. Appellant then left in the victim’s gray

Honda.

      When the victim failed to show up for work the next week, his co-

workers, who were checking on him, discovered his body in a back room

partially hidden under a chair and next to a bloodied brick. His pockets had

been pulled out and he had no money on his person. Both the brick and a knife

discovered outside the victim’s door contained the victim’s blood. Expert

testimony established that the cause of death was asphyxiation by strangulation

with multiple blunt and sharp force injuries.

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      A witness who saw appellant carry the speaker into the victim’s apartment

earlier in the day testified that he saw Medina’s red Jeep return to the victim’s

apartment that evening. Several neighbors testified that at 10:30 or 11:00 p.m.

they heard people fighting in the victim’s apartment, followed by what was

described as hammering noises or someone hanging pictures. They then heard

the victim’s vehicle leave. Appellant was seen by a witness a few days after the

crimes with a Honda similar in color to the victim’s car.

      During questioning by police, appellant first admitted selling the victim

the speaker but denied going into the victim’s apartment. He later admitted

going into the kitchen area only, and finally admitted going into the back

bedroom and sitting on the bed. While being questioned again the following

day, an investigator noticed what appeared to be blood stains on appellant’s

pants. Appellant’s clothing was seized, and the blood on his pants was

determined to match the victim’s DNA.

      We conclude the evidence was sufficient to enable the jury to find

appellant guilty of the crimes for which he was convicted beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

      2. During trial, appellant’s sister, Lawanda Wilson, testified that appellant

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had been living with her prior to the date of the crimes, but that she asked him

to leave because of his drug use and because he had stolen a sound system from

her vehicle.2 Appellant then moved his belongings to the home of his other

sister, Wendy Wilson, who testified that appellant had a problem with crack

cocaine and had stolen an X-Box from her children. Appellant contends this

testimony was irrelevant and improper character evidence that should not have

been admitted into evidence. We disagree.

      Whether to admit evidence is a matter resting in the sound discretion of

the trial court, and evidence that is relevant and material to an issue in a case is

not rendered inadmissible by the fact that it incidentally places the defendant’s

character in issue. Price v. State, 269 Ga. 373, 374 (2) (497 SE2d 797) (1998).

The State’s theory at trial was that appellant, desperate to get money to buy

drugs, attacked the victim in order to steal money from him. In addition to the

challenged testimony, the State’s theory of appellant’s motive is supported by

evidence introduced showing that on the day of the crimes appellant, who was

acting as if he was under the influence of drugs or alcohol, was asking people


      2
        Appellant admitted to police that he used crack cocaine but denied that he had a
“bad” addiction.

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for money and knocking on doors, including the victim’s door, trying to sell a

stereo speaker. There was also evidence that after the crimes, appellant went to

a friend’s house seeking to purchase drugs. “Although motive is not an essential

element in proving the crimes charged, the State is entitled to present evidence

to establish that there was a motive, and evidence [of appellant’s extensive drug

use and need to obtain money for drugs] is relevant to prove that he had a

motive for committing the crimes.” Brady v. State, 270 Ga. 574, 578-579 (513

SE2d 199) (1999), citing Johnson v. State, 260 Ga. 457, 458 (2) (396 SE2d 888)

(1990). See Thornton v. State, 292 Ga. 87, 88-89 (3) (734 SE2d 393) (2012)

(evidence of defendant’s prior drug use and illegal activities properly admitted

to show motive to rob home where he believed money would be found);

Holcomb v. State, 268 Ga. 100, 104 (4) (485 SE2d 192) (1997) (evidence of

defendant’s involvement in prior drug dealings admissible to prove motive for

crimes). Accordingly, we find no abuse of discretion in the trial court’s decision

to allow the challenged testimony in support of the State’s theory of motive in

this case.

      Judgment affirmed. All the Justices concur.



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