                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, 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


                                                                      March 9, 2020




In the Court of Appeals of Georgia
 A19A2358. THE STATE v. WATSON.                                               DO-080 C

      DOYLE, Presiding Judge.

      Patrick Watson was indicted for armed robbery, hijacking a motor vehicle,

robbery by sudden snatching, kidnapping, theft by receiving stolen property, fleeing

and attempting to elude a police officer, and obstruction of an officer. Prior to trial,

the State moved to admit evidence of other acts under OCGA § 24-4-404 (b), which

motion the trial court denied. The State now appeals, arguing that the trial court

improperly applied OCGA §§ 24-4-404 (b) and 24-4-403 to exclude extrinsic

evidence of other acts for the purposes of showing motive, intent, and knowledge.1

For the reasons that follow, we affirm.


      1
        The State followed the procedures to appeal this order as outlined in OCGA
§ 5-7-1 (a) (5) (A).
      The record shows that Watson, LaMarcus Jackson (“LaMarcus”), Xavier

Jackson (“Xavier”), a minor individual, and Marquis Barnes were indicted for

numerous offenses stemming from a 2016 incident in which the men allegedly stole

a Jeep occupied at the time by the owner’s 8-month old infant, who was strapped into

a car seat in the back of the vehicle while the men attempted to escape police. Prior

to stealing the Jeep, the State alleged that Watson, LaMarcus, Barnes, and the two

other individuals attempted to steal a Mercedes but Watson was unable to start the

vehicle after taking the owner’s keys from her at gunpoint. The men drove in their

previously stolen sedan from that scene to the gas station, where Watson is alleged

to have entered the Jeep through the passenger’s side while the owner pumped gas.

Watson drove away in the Jeep with the infant in the car and was followed by the

other individuals in the sedan. A police chase of both vehicles ensued, and after the

vehicles eventually crashed, the co-conspirators fled on foot. Police immediately

apprehended LaMarcus and Barnes, Xavier was identified through belongings in a

vehicle and arrested one month later, and the minor was arrested one month later

based on co-conspirator statements.

      Approximately two years later, Xavier agreed to cooperate with police and

identified Watson as the remaining unapprehended co-conspirator and identified him

                                         2
as the driver of the Jeep; Xavier agreed to plead guilty and testify against LaMarcus,

Barnes, and Watson. After Watson was apprehended, police obtained a warrant and

took DNA and hair samples from him to try and match the hair discovered at the

scene in the area where the driver would have been in the Jeep when it crashed.

Investigators were able to visually compare the hair samples to the hair found at the

scene, but an attempted DNA match was not conclusive.

      Prior to trial, the State moved to introduce evidence of prior acts committed by

Watson, including three instances of him stealing or being found in possession of

stolen vehicles and personal property.

                                      2012 Act

      In 2013, Watson entered a guilty plea based on incidents occurring in 2012 in

which Watson snatched keys off a coffee shop table, stole the victim’s unattended

vehicle from the parking lot, and fled from police when he was spotted in the vehicle

the next day. Watson also was charged in the same indictment for four sudden

snatching thefts of personal electronics.

                                      2014 Act

      The second extrinsic act the State sought to introduce was evidence that in late

2014, Watson snuck into a vehicle in a repair shop parking lot while the owner of the

                                            3
vehicle was talking with her father and another individual. The father and the other

individual got into their cars and chased Watson, who ultimately crashed the stolen

vehicle and fled on foot. Police responded to the area of the crash and located Watson

after a search of the area; Watson pleaded guilty in 2015 to the charges arising

therefrom.

                                      2016 Act

      Finally, the State sought to introduce evidence from an extrinsic act in 2016

during which police stopped a vehicle driven by Watson, discovered a handgun in

plain view, prompting officers to attempt to detain Watson, who refused to comply

with instructions, leading to the use of non-lethal force to arrest him. Watson pleaded

guilty in 2017 to possession of a firearm and obstruction.

      At the hearing on various pre-trial motions, the State requested that the trial

court admit the prior acts evidence for proof of motive, intent, knowledge, absence

of mistake or accident, and to rebut any material assertion presented by Watson. The

court questioned the State as to how it was supposed to rule on use of the evidence

for rebuttal to arguments not yet presented by Watson, and the State conceded that “if

it’s not going to be raised, I understand the Court’s concern in admitting it for those

purposes, and I think it can just be reserved until such time it becomes relevant or

                                          4
necessary. If it’s never raised, then I agree, I don’t think it would be for the purpose

of disproving anything that’s not raised.” The State also conceded that the extrinsic

acts were not sufficiently similar to be admitted in order to show identity. The State

insisted, however, that the court should admit the evidence on the basis of its

relevance to Watson’s motive, intent, or knowledge.

      The State first argued that it needed the extrinsic evidence of the other acts to

prove motive, which it contended was “the sheer joy and thrill of “ stealing vehicles

and fleeing from authorities, rather than simple desire to possess the stolen items. The

State next argued that the extrinsic evidence was relevant to Watson’s intent, which

he had put into issue by pleading not guilty to the charges. The State maintained that

Watson’s intent was the same in the extrinsic acts as compared to the instant charges

because they involved similar crimes of sudden snatching thefts, stealing vehicles,

and fleeing from police in high speed chases, and they showed his willingness to

possess firearms during other crimes. Finally, the State argued that the extrinsic

evidence was relevant to show common knowledge among the defendants that they

were participating in the conspiracy to steal the vehicles (or attempt to do so). The

State argued its need for the extrinsic act evidence was high because its case against

Watson rested only on the visual hair analysis and co-conspirator statements. The

                                           5
State had subpoenaed approximately 80 witnesses total if necessary to prove the

extrinsic acts it wished to submit against Watson and Barnes.2

      The trial court denied the State’s motion, finding that because Watson’s

defense rested on his claim that he was not involved in the crimes at all, rather than

a mere presence defense, the extrinsic evidence was prejudicial and should not be

admitted. The trial court explained that the extrinsic evidence was not sufficiently

probative to the issue of motive, which was apparent based on the nature of the

charges, intent was not a heavily contested issue and would also be apparent based

on the nature of the charges, and the incidents did not involve the type of specialized

knowledge such that the probative value of the extrinsic evidence overcame its

prejudicial effect of entering into the record propensity or bad character evidence

against Watson.

      1. As an initial matter, Watson contends that the State’s appeal should be

dismissed because it was taken for the purposes of delay and because the evidence

excluded by the trial court did not constitute substantial proof of a material fact in the

proceeding.


      2
       The trial court also granted in part and denied in part the State’s motion to
admit evidence of other acts against Barnes, but that order is not before this Court.

                                            6
      Pursuant to OCGA § 5-7-1 (a) (5), the State is allowed to appeal

      from an order, decision, or judgment excluding any other evidence to be
      used by the [S]tate at trial on any motion filed by the [S]tate or
      defendant at least 30 days prior to trial and ruled on prior to the
      impaneling of a jury or the defendant being put in jeopardy, whichever
      occurs first, if: (A) Notwithstanding the provisions of Code Section
      5-6-38, the notice of appeal filed pursuant to this paragraph is filed
      within two days of such order, decision, or judgment; and (B) The
      prosecuting attorney certifies to the trial court that such appeal is not
      taken for purpose of delay and that the evidence is a substantial proof of
      a material fact in the proceeding.


      Watson contends that the State’s appeal does not meet the criteria for appealing

under this Code section because the appeal was taken for purposes of delay, and

because the extrinsic evidence excluded by the trial court does not meet the definition

of evidence of substantial proof of a material fact. In addition to the fact that Watson

failed to file a cross-appeal, we disagree with his substantive argument.

      Prior to 2013, the State did not have the right to appeal pre-trial evidentiary

decisions,3 but since the Code was amended at that time, this Court has recognized

that such rulings are appealable by the State under OCGA § 5-7-1 (a) (5).4 To the

      3
          See State v. Lynch, 286 Ga. 98, 102 (2) (686 SE2d 244) (2009).
      4
          See State v. Battle, 344 Ga. App. 565, 567-569 (1) & (2) (812 SE2d 1) (2018).

                                            7
extent that Watson contends that this appeal does not meet the requirement of OCGA

5-7-1 (a) (5) (B) in that the exclusion of the extrinsic evidence did not affect

substantial proof of a material fact, we disagree. The extrinsic evidence was offered

to assist the State in proving motive, intent, and knowledge, which are material issues

in the case. Therefore, the State was authorized to appeal. As for the argument that

the State pursued the appeal for purposes of delay because Watson had a motion for

speedy trial pending, we decline to hold that the mere existence of such a motion

prohibits the State from exercising its right to appeal under OCGA § 5-7-1 (a) (5).

      2. The State argues that the trial court abused its discretion by excluding the

extrinsic evidence of Watson’s other acts for the purposes of showing intent, motive,

and knowledge because the acts were relevant to those issues, were similar to the

charges, and occurred close in time.

      We review a trial court’s decision to exclude other acts evidence for a clear

abuse of discretion.5 This Court construes “the evidentiary record in the light most

favorable to the factual findings and judgment of the trial court.”6



      5
          See State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d 170) (2015).
      6
          (Punctuation omitted.) State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248)
(2015).

                                          8
      OCGA § 24-4-404 (b) provides that “[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.” In Bradshaw v. State,7 the Georgia

Supreme Court applied the federal test for admission of extrinsic evidence under the

federal rule identical to OCGA § 24-4-404 (b), explaining that in order to determine

admissibility of extrinsic other acts evidence “(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; [and] (3) the government must offer

sufficient proof so that the jury could find that defendant committed the act.”8

Relevant evidence is evidence that “ha[s] 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.”9 The Court has explained that




      7
          296 Ga. 650, 657 (3) (769 SE2d 892) (2015).
      8
          (Punctuation omitted.) Id. at 656 (3).
      9
          OCGA § 24-4-401.

                                            9
      [e]ven relevant evidence offered for a proper purpose under [OCGA §
      24-4-404 (b)] may be excluded under OCGA § 24-4-403 . . . 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.10


      The major function of OCGA § 24-4-403 is to ‘exclude matter of scant
      or cumulative probative force, dragged in by its heels for the sake of its
      prejudicial effect,’ and exclusion of evidence under the statute is ‘an
      extraordinary remedy which should be used only sparingly.’ Factors to
      be considered in determining the probative value of other act evidence
      . . . include its overall similarity to the charged crime, its temporal
      remoteness, and the prosecutorial need for it. 11


      “Motive has been defined as the reason that nudges the will and prods the mind

to indulge the criminal intent.”12 With regard to intent, the Georgia Supreme Court

has held that


      10
           (Punctuation omitted.) Jones, 297 Ga. at 158 (1).
      11
        (Punctuation omitted.) Jackson v. State, 306 Ga. 69, 77 (2) (b) (ii) (829 SE2d
142) (2019), quoting Hood v. State, 299 Ga. 95, 102-103 (786 SE2d 648) (2016).
      12
        (Punctuation omitted.) Bradshaw, 296 Ga. at 657 (3), citing United States v.
Banks, 514 F3d 959, 976 (9th Cir. 2008) (holding that evidence of the defendant’s
prior aggravated assault of the victim who had insulted him was admissible to show
motive for his attempted murder of another individual who had insulted him).

                                          10
      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 Rule 404 (b) evidence absent
      affirmative steps by the defendant to remove intent as an issue. [If] 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, [if] the state of mind required for
      the charged and extrinsic offenses is the same, the first prong of the Rule
      404 (b) test is satisfied.13


      The State argues that the trial court abused its discretion by denying its motion

to admit the extrinsic evidence, specifically that the trial court abused its discretion

by (1) finding the evidence was not relevant to prove motive, intent, or knowledge,

(2) failing to find that the evidence was not temporally remote or factually similar to

the instant charges, (3) finding that prosecutorial need was low, and (4) conflating the

issue of intent with the issue of identity.




      13
       (Punctuation omitted.) Bradshaw, 296 Ga. at 650, quoting, United States v.
Edouard, 485 F3d 1324, 1345 (11th Cir. 2007)

                                              11
      The State argues that the trial court conflated intent with identity,14 but this case

actually turns on identity, for which the State admitted at the hearing that the extrinsic

evidence was not sufficiently similar to be admitted to show identity. Watson, who

was not discovered at the scene, contends he was not involved; the alleged co-

conspirators, who were discovered at the scene or by their property recovered from

      14
               Evidence offered to prove identity must satisfy a
             particularly stringent analysis. When extrinsic offense
             evidence is introduced to prove identity, the likeness of the
             offenses is the crucial consideration. The physical
             similarity must be such that it marks the offenses as the
             handiwork of the accused. In other words, the evidence
             must demonstrate a modus operandi. The extrinsic act must
             be a signature crime, and the defendant must have used a
             modus operandi that is uniquely his. The signature trait
             requirement is imposed to ensure that the government is
             not relying on an inference based on mere character—that
             a defendant has a propensity for criminal behavior.
             Evidence cannot be used to prove identity simply because
             the defendant has at other times committed the same
             commonplace variety of criminal act.


(Punctuation omitted.) Brooks v. State, 298 Ga. 722, 725 (2) (783 SE2d 895) (2016),
quoting United States v. Phaknikone, 605 F3d 1099, 1108 (11th Cir. 2010). The State
conceded at the hearing that the extrinsic evidence did not meet the standard to be
admitted in order to show identity because the crimes were not sufficiently specific.

                                           12
the scene, made statements indicating Watson was the main perpetrator. Simply put,

admission of the evidence would create the risk that the jury would convict Watson

based on his propensity for theft and bad character, and the presentation of evidence

of the extrinsic acts could create a risk that a jury would seek to punish Watson for

the other conduct, even if it did not find the State met its burden to establish that he

was involved in the instant crimes.15

      We agree that the trial court conflated some of the language of the 404 (b)

evidence analysis.16 For instance, the 2012 and 2014 Acts were partially relevant to

the motive, intent, and knowledge of the instant crimes,17 and the trial court failed to

engage in an analysis of the temporal remoteness or similarity of the charges to the

instant crimes. Nevertheless, we conclude that, ultimately, it did not abuse its




      15
       See Jackson, 306 Ga. at 78 (2) (b) (ii). See also Kirby v. State, 304 Ga. 472,
485-486 (4) (a) (ii) (819 SE2d 468) (2018); Brown v. State, 303 Ga. 158, 161-162 (2)
(810 SE2d 145) (2018); Parks v. State, 300 Ga. 303, 307 (2) (794 SE2d 623) (2016).
      16
         See State v. Atkins, 304 Ga. 413, 422 (2) (c) (819 SE2d 28) (2018) (“Even
where a trial court makes an error of law, we may still affirm if we can conclude that,
had the trial court applied the correct legal analysis, it would have no discretion to
reach a different judgment.”).
      17
           The State has not shown that the 2016 Act was relevant in this case.

                                          13
discretion in denying the State’s motion to admit the extrinsic evidence to show

motive, intent, or knowledge.18

      The trial court was aware of the proper standard and applied it. It is clear from

reading the order as a whole that the trial court understood and found that while some

of the extrinsic acts in this case were relevant in the technical sense, the factual

scenario of this case renders the State’s need to have more evidence to prove motive,

intent, and knowledge very low because those issues are obvious to a fact finder after

the identity of the perpetrator is determined.19 The trial court did not abuse its

discretion by finding that based on the factual scenario, the State’s admission that the

evidence is not admissible to show identity, and the defense Watson is presenting, the

undue prejudice substantially outweighs the minimal probative value of the evidence

as to the issues of intent, knowledge, and motive.20



      18
           See Brooks, 298 Ga. at 726 (2).
      19
         Compare with Jones, 297 Ga. at 160-162 (2) (explaining that it was not an
abuse of discretion for a trial court to admit extrinsic evidence of prior convictions
for driving under the influence even though specific intent was not required in a case
against an individual claiming his head trauma made him appear intoxicated).
      20
        See generally Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261)
(2014) (“Nevertheless, it is a fundamental principle that ‘harm as well as error must
be shown for reversal . . . .’”).

                                             14
      The trial court specifically reserved ruling on whether the extrinsic evidence

could be admitted for other reasons in the event that, for instance, Watson concedes

he was there but argues he was merely present. But based on the facts presented at the

hearing and the record, and the arguments made by the State and Watson, we discern

no abuse of discretion by the trial court in excluding the extrinsic evidence.

      Judgment affirmed. Coomer and Markle, JJ., concur.




                                         15
