                                 FIRST DIVISION
                                ELLINGTON, P. J.,
                           PHIPPS, P. J. and BRANCH, 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.
                                  http://www.gaappeals.us/rules


                                                                      February 3, 2016




In the Court of Appeals of Georgia
 A13A1940. JONES v. THE STATE.

      PHIPPS, Presiding Judge.

      In State v. Jones,1 the Supreme Court of Georgia reversed this court’s decision

in Jones v. State,2 in which this court reversed under OCGA § 24-4-404 (b) of the

new Evidence Code the trial court’s decision to admit in Michael Jones’s trial for

driving under the influence of alcohol (“DUI”) (less safe and per se), evidence of a

prior conviction for DUI (less safe). The Supreme Court upheld the trial court’s

decision to admit the evidence on the basis that it was relevant to show Jones’s intent

in the charged offenses.3 Therefore, we vacate our earlier opinion and adopt the


      1
          297 Ga. 156, 159 (2) (773 SE2d 170) (2015) (“Jones II”).
      2
          326 Ga. App. 658 (757 SE2d 261) (2014) (“Jones I”).
      3
          Jones II, supra at 162 (2).
opinion of the Supreme Court as our own. The Supreme Court also remanded the case

to this court for consideration of whether the trial court erred in its evaluation of the

admissibility of the prior conviction evidence under OCGA § 24-4-403. Accordingly,

we render the following opinion regarding the admissibility of the evidence under

OCGA § 24-4-403.

      Pursuant to OCGA § 24-4-403: “Relevant 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.” The Supreme Court

has stated that

      [u]nfortunately, there is no mechanical solution for this balancing test.
      Instead, a trial court must undertake in each case a considered evaluation
      of the proffered justification for the admission of such evidence and
      make an independent determination of whether the probative value of
      the evidence “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.”4




      4
          Id. at 163 (3) (citations omitted).

                                                2
The Eleventh Circuit has held that under Rule 403, the federal counterpart of OCGA

§ 24-4-403, the determination of whether the probative value of extrinsic acts

evidence outweighs its prejudicial effect “lies within the discretion of the [trial] court

and calls for a common sense assessment of all the circumstances surrounding the

extrinsic [act], including prosecutorial need, overall similarity between the extrinsic

act and the charged offense, as well as temporal remoteness.”5 Furthermore, the

Eleventh Circuit has determined that application of Rule 403 “is an extraordinary

remedy which should be used only sparingly since it permits the trial court to exclude

concededly probative evidence.”6 “A trial court’s decision to admit other acts

evidence will be overturned only where there is a clear abuse of discretion.”7

      In this case, the trial court heard argument regarding whether the probative

value of the prior conviction evidence substantially outweighed its prejudicial effect,

undertook a considered evaluation of the proffered justification for the admission of



      5
       United States v. Perez, 443 F3d 772, 780 (II) (11th Cir. 2006) (citation and
punctuation omitted). See Bradshaw v. State, 296 Ga. 650, 657-658 (3) (769 SE2d
892) (2015).
      6
         United States v. Merrill, 513 F3d 1293, 1301 (II) (B) (11th Cir. 2008)
(citation and punctuation omitted). See Bradshaw, supra at 658 (3).
      7
          Jones II, supra at 159 (1) (citations omitted).

                                            3
such evidence, and made an independent determination that the probative value of the

evidence substantially outweighed its prejudicial effect. The trial court noted that: (1)

the circumstances surrounding the prior conviction were similar to the circumstances

involving the charged offenses and, likewise, involved a charge for DUI (less safe);

and (2) the charged offenses allegedly occurred five to six years after the extrinsic

offense, when Jones would have had “[k]nowledge of the fact that he was less safe

because he was [less safe] before.” Moreover, the record demonstrates the state’s

need to introduce the prior conviction evidence because, as the Supreme Court

explained, “[a] genuine issue regarding whether Jones was voluntarily driving while

under the influence of alcohol was raised by [his] defense,”8 and the prior conviction

evidence “had a tendency to make the existence of his general intent to drive under

the influence more probable and would authorize a jury to logically infer that Jones

was voluntarily driving while under the influence.”9 Given these circumstances, we

cannot say that the trial court abused its discretion in finding that the probative value




      8
          Id. at 161 (2).
      9
          Id. at 163 (2) (citation omitted).

                                               4
of evidence of Jones’s prior conviction was not substantially outweighed by its

prejudicial effect.10

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




       10
         See generally Perez, supra at 779-780 (II) (by his theory of defense, the
defendant made his knowledge and intent a focal point of the case, plainly making the
evidence of his prior conviction admissible for non-propensity purposes; the district
court did not abuse its discretion when it determined the probative value of the
defendant’s prior conviction, which involved a similar act as the charged offenses and
took place less than two years before the instant offense, outweighed its prejudicial
effect); Watford v. State, 332 Ga. App. 499, 505 (773 SE2d 452) (2015).

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