                              THIRD DIVISION
                             ELLINGTON, P. J.,
                         ANDREWS and RICKMAN, 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


                                                                   February 14, 2018




In the Court of Appeals of Georgia
 A17A1753. THE STATE v. BATTLE.

      ANDREWS, Judge.

      Alexander Darelle Battle was indicted for fourteen criminal offenses arising out

of a June 20, 2015 armed robbery.1 Prior to the trial of those offenses, the state filed

this direct appeal pursuant to OCGA § 5-7-1 (a) (5) from the trial court’s order

excluding evidence the state sought to have admitted at trial showing that Battle

committed crimes, wrongs, or acts other than the charged offenses. For the following

reasons, we (1) vacate the trial court’s order in part and remand, and (2) dismiss the

appeal in part.

      1
        The indictment charged Battle with one count of armed robbery; three counts
of aggravated assault; three counts of unlawful use or possession of a sawed-off
shotgun; five counts of possession of a firearm during the commission of a felony;
one count of second degree burglary; and one count of wearing a mask to conceal his
identity.
      1. We first address the state’s right to bring a direct appeal pursuant to OCGA

§ 5-7-1 (a) (5). Under OCGA § 5-7-1 (a) (5), the state is authorized in a criminal case

to file a direct appeal from the trial court’s

      order, decision, or judgment excluding any other evidence to be used by
      the state at trial on any motion filed by the state 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.

(emphasis supplied).

Read in context with OCGA § 5-7-1 (a) (4), the “other evidence” referred to in

OCGA § 5-7-1 (a) (5) “is most naturally and reasonably understood to authorize

appeals from orders excluding evidence other than the evidence with which OCGA

§ 5-7-1 (a) (4) is concerned.” State v. Andrade, 298 Ga. 464, 466 (782 SE2d 665)

(2016). Under OCGA § 5-7-1 (a) (4), the state is authorized to file a direct appeal

from the trial court’s order, decision, or judgment

      suppressing or excluding evidence illegally seized or excluding the
      results of any test for alcohol or drugs in the case of motions made and
      ruled upon prior to the impaneling of a jury or the defendant being put
      in jeopardy, whichever occurs first.

                                            2
“Accordingly, one cannot properly determine that an appeal from an order excluding

evidence must be brought pursuant to OCGA § 5-7-1 (a) (5) without first ascertaining

that it could not be brought under OCGA § 5-7-1 (a) (4).” Andrade, 298 Ga. at 466.

      The record shows that, pursuant to OCGA § 24-4-404 (b), the state filed a

notice in advance of trial informing the defense of the general nature of evidence the

State intended to introduce at trial showing “other crimes, wrongs or acts” committed

by Battle: to wit, armed robbery, aggravated assault with intent to rob, and possession

of a firearm during the commission of a crime, all occurring on or about June 25,

2015, five days after the charged offenses.2

Under OCGA § 24-4-404 (b),

      [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.

Evidence of other crimes, wrongs, or acts relevant under OCGA § 24-4-404 (b) may,

nevertheless, be excluded by the court


      2
         OCGA § 24-4-404 (b) further provides that: “The prosecution in a criminal
proceeding shall provide reasonable notice to the defense in advance of trial, unless
pretrial notice is excused by the court upon good cause shown, of the general nature
of any such evidence it intends to introduce at trial.”

                                           3
       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.

OCGA § 24-4-403. To determine the admissibility of other acts evidence under

OCGA §§ 24-4-404 (b) and 24-4-403, the trial court exercises its discretion under a

three-part test:

       [I]n order to be admissible, the State must make a showing that: (1)
       evidence of extrinsic, or other, acts is relevant to an issue other than a
       defendant’s character, see [OCGA § 24-4-404 (b)]; (2) the probative
       value of the other acts evidence is not substantially outweighed by its
       unfair prejudice, i.e., the evidence must satisfy the requirements of
       [OCGA § 24-4-403]; and (3) there is sufficient proof so that the jury
       could find that the defendant committed the act in question.

State v. Jones, 297 Ga. 156, 158-159 (773 SE2d 170) (2015). Because a pre-trial

appeal from an order excluding evidence sought to be admitted pursuant to OCGA

§ 24-4-404 (b) could not be brought pursuant to the provisions of OCGA § 5-7-1 (a)

(4), it follows that any such appeal must be brought pursuant to OCGA § 5-7-1 (a)

(5). See Andrade, 298 Ga. at 466.

       As set forth above, the state’s right to appeal under OCGA § 5-7-1 (a) (5) is

from an “order, decision, or judgment excluding any other evidence to be used by the

state at trial on any motion filed by the state or defendant at least 30 days prior to trial


                                             4
and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy,

whichever occurs first. . .” (emphasis supplied).3 This provides a right to appeal from

an order excluding evidence on a written pre-trial motion filed by the state or the

defendant. There is no evidence in the record that the state filed any pre-trial motion

seeking an order on the admissibility of evidence pursuant to OCGA § 24-4-404 (b).

Rather, as set forth above, the state filed the pre-trial notice required by OCGA § 24-

4-404 (b) notifying the defense that the state would seek at trial to introduce other

crimes, wrongs, or acts independent of or extrinsic to the charged offenses. Prior to

the adoption of OCGA § 24-4-404 (b) in the new Evidence Code, a pre-trial hearing

to address the admissibility of this evidence was required under former Uniform

Superior Court Rule 31.3. Everhart v. State, 337 Ga. App. 348, 351-352 (786 SE2d

866 (2016). But OCGA § 24-4-404 (b), which contains no provision for a mandatory

pre-trial hearing, eliminated the former requirement for a pre-trial hearing. Id.

Nevertheless, the record shows that a pre-trial hearing was scheduled, and that, at

some point during the hearing, the trial court considered the state’s notice as a motion

      3
         It is undisputed that the trial court’s ruling occurred prior to impaneling of a
jury or the defendant being put in jeopardy. Moreover, the state’s appeal from the
court’s order denying the motion was brought within two days of the order and with
the prosecuting attorney’s certification to the trial court as required by OCGA § 5-7-1
(a) (5) (A) and (B).

                                           5
filed by the state at least 30 days prior to trial seeking a pre-trial ruling on the

admissibility of evidence under OCGA § 24-4-404 (b). Although the trial court was

not required to treat the notice as a motion filed under OCGA § 5-7-1 (a) (5), we find

under these circumstances that the state complied with the provisions of the statute

requiring that any appeal be taken from an order on a motion filed by the state or the

defendant.

       After the hearing, the trial court entered an order which denied the state’s

motion brought pursuant to OCGA § 24-4-404 (b), and also ruled against the state’s

contention, asserted for the first time at the hearing, that the evidence of other crimes,

wrongs, or acts was admissible because it was “intrinsic” to or “intertwined” with the

charged offenses. Admissibility of evidence under OCGA § 24-4-404 (b) deals with

other crimes, wrongs, or acts “extrinsic” to the charged offense. Jones, 297 Ga. at 158

n.1.

       [OCGA § 24-4-404 (b)] only relates to ‘other’ crimes, wrongs, or acts
       that are ‘independent’ of or ‘extrinsic’ to the charged offense. If the
       other crime, wrong, or act is ‘intrinsic’ to the charged offense or
       ‘inextricably intertwined’ with it, it is admissible under [OCGA § 24-4-
       401]. Such evidence was called part of the res gestae of the offense
       under the [rules in effect prior the new Evidence Code adopted in 2013].




                                            6
Paul Milich, Courtroom Handbook On Georgia Evidence, I8, Independent Crimes or

Acts (2017 ed.), April 2017 update, available at Westlaw GAHANDEVIDI8. The trial

court addressed the state’s intrinsic evidence argument and ruled that the alleged

others acts evidence was not admissible on this basis because the other acts were not

intrinsic to the charged offenses. To the extent the state appealed pursuant to OCGA

§ 5-7-1 (a) (5) from the court’s ruling excluding intrinsic evidence, we dismiss the

appeal. The state’s pre-trial notice, considered by the trial court as a motion seeking

admission of other acts evidence, was brought pursuant to OCGA § 24-4-404 (b) and

related only to other crimes, wrongs, or acts independent of or extrinsic to the charged

offenses. The state filed no pre-trial motion seeking admission of other acts evidence

on the basis that they were intrinsic to or inextricably intertwined with the charged

offenses. Under OCGA § 5-7-1 (a) (5), the state was authorized to appeal from the

trial court’s “order, decision, or judgment excluding any other evidence to be used by

the state at trial on any motion filed by the state or defendant at least 30 days prior

to trial . . .” (Emphasis supplied). Because no pre-trial motion was filed raising this

evidentiary issue, the state was not authorized under OCGA § 5-7-1 (a) (5) to file a

direct appeal from the trial court’s ruling in response to the state’s oral argument on

the issue.

                                           7
      2. The state contends the trial court erred by entering a pre-trial order excluding

other crimes, wrongs, or acts the state sought to admit at trial pursuant to OCGA §

24-4-404 (b).

      When the pre-trial hearing commenced, the trial court informed the prosecutor

that the court did not have a “404 (b)” motion and asked if one had been filed. The

prosecutor informed the court that, although the court’s calendar referred to a “404

(b) motion,” there was no such motion and that the state’s position was that the other

crimes, wrongs, or acts evidence was admissible because “it’s intrinsic evidence in

the case so that is not subject to a 404 (b) analysis.” Without any written motion filed,

or any prior notice given to the defense, the trial court allowed the prosecutor to

proceed on an oral motion for the admissibility of intrinsic evidence.

      At that point, the prosecutor made a proffer in support of the state’s oral

intrinsic evidence motion by stating “in her place” the evidence that the state

expected to introduce at the trial, as follows: The evidence was expected to show that

the charged offenses arose from an armed robbery at a Domino’s Pizza restaurant by

two masked men, one of whom was carrying a sawed-off shotgun. The prosecutor

stated that, the state “believe[s] that Mr. Battle was carrying and possessed [the

shotgun.],” and that the shotgun had silver duct tape wrapped around the stock.

                                           8
According to the prosecutor, other evidence was expected to show the following

unindicted acts: Five days after the charged offenses, two masked men committed an

armed robbery at a residence. One of the men was carrying a sawed-off shotgun

matching the description of the shotgun used by the masked robbers in the charged

offenses. One of the victims at the residence was expected to testify that, even though

the robbers were wearing masks, the victim, who knew Battle from school,

recognized Battle as one of the robbers by his eyes, his voice, and his physical build.

Evidence was expected to show that a search of Battle’s residence pursuant to warrant

produced a matching shotgun found in a shed behind the residence. The state

presented no witnesses in support of the proffer, and the defense made no objection

to the prosecutor’s statement “in her place” as the means to establish the proffer in

support of the state’s intrinsic evidence motion.

      After the prosecutor concluded the proffer and made supporting argument, the

trial court responded that evidence showing that a matching shotgun was found at

Battle’s residence was admissible, but that evidence showing Battle subsequently

committed another crime was not admissible as intrinsic evidence. The trial court also

informed the prosecutor that, to the extent the state might seek at trial to show

pursuant to OCGA § 24-4-404 (b) that Battle committed another crime with the

                                          9
shotgun, the state would be required to file a pre-trial notice pursuant to 404 (b). The

prosecutor then told the court that “I believe there is [a 404 (b) notice]. I wanted to

go ahead and proceed since the Court had sounded the case; I didn’t realize you

didn’t have it.” According to the prosecutor, she “thought that maybe I didn’t have

one here because I believe it to be intrinsic.” At that point, the prosecutor provided

the trial court with a copy of a pre-trial notice pursuant to OCGA § 24-4-404 (b)

which the record showed was filed and served about three months prior to the

hearing.

      At the prosecutor’s request, the trial court then allowed the state to present

argument to the court that other crimes, wrongs, or acts evidence was also admissible

pursuant to OCGA § 24-4-404 (b) for purposes of opportunity, preparation, plan,

motive, and intent. After the prosecutor concluded her argument, the trial court gave

defense counsel the opportunity to present evidence or argument in response. The

trial court subsequently entered an order ruling that the proffered other acts evidence:

(1) was not admissible as evidence intrinsic to the charged offenses; and (2) was not

admissible as extrinsic evidence under OCGA § 24-4-404 (b) because “the State

offered no evidence, other than the State’s self-serving declaration of what the State

expected the other acts evidence to be, from which the Court could sufficiently

                                          10
identify the masked perpetrator as being the Defendant for purposes of § 404 (b)

analysis.”4

       The trial court’s pre-trial ruling that other acts evidence was not admissible at

trial as extrinsic evidence pursuant to OCGA § 24-4-404 (b) was based on the court’s

conclusion that the state’s proffer of evidence was not sufficient to establish a prima

facie case from which the court, as the trier of fact, could conclude that Battle

committed the other act in question. Jones, 297 Ga. at 158-159. The prosecutor

proffered evidence by stating “in her place” the testimony she expected the victim of

the other armed robbery to give at trial identifying Battle as one of the robbers. The

trial court found this proffer insufficient on the basis that it was merely a “self-serving

declaration” of testimonial evidence the state expected to produce at trial. But the

prosecutor’s “in her place” proffer of expected evidence was not merely a self-serving

declaration. “Attorneys are officers of the court and a statement to the court in their

       4
        In effect, the state sought by motion in limine to obtain a pre-trial ruling on
the admissibility of other acts evidence. See Whitehead v. State, 287 Ga. 242, 247
(695 SE2d 255) (2010). In considering a pre-trial motion in limine on this issue, the
trial court may defer any ruling until trial, issue a conditional ruling, or make a
definitive ruling admitting or excluding evidence. State v. Johnston, 249 Ga. 413, 415
(291 SE2d 543) (1982); Anthony v. State, 298 Ga. 827, 831-832 (785 SE2d 277)
(2016); OCGA § 24-1-103 (a); see Paul S. Milich, Courtroom Handbook on Georgia
Evidence, M5, Motions in Limine, April 2017 Update, available at Westlaw
GAHANDEVIDM5.

                                            11
place is prima facie true and needs no further verification unless the same is required

by the court or the opposite party.” Anthony v. State, 298 Ga. 827, 830 (785 SE2d

277) (2016) (citations and punctuation omitted; emphasis in original). Nothing in the

record shows that the trial court required any further verification. “‘Where counsel

makes statements in [his or her] place, they may be received without verification

unless the same is required by the opposing party at the time.’” Rank v. Rank, 287 Ga.

147, 149 (695 SE2d 13) (2010) (quoting Caldwell v. McWilliams, 65 Ga. 100, 101

(1880)); In re Singleton, 323 Ga. App. 396, 406 (744 SE2d 912) (2013) (attorney’s

“in his place” proffer to the court at hearing taken to be prima facie true unless

opposing counsel requires verification at the time the proffer is made). Accordingly,

in the absence of a timely objection when the evidentiary proffer was made to the trial

court, the prosecutor’s “in her place” proffer during the hearing “will be treated on

appeal as the equivalent of evidence.” Rank v. Rank, 287 Ga. 147, 149 (695 SE2d 13)

(2010). Conversely, a timely objection when the proffer is made insisting that the

state prove the admissibility of other acts under OCGA § 24-4-404 (b) with

traditional evidence, would establish that “the statements-in-place by [the prosecutor]

were not a proper substitute for [traditional] evidence at the hearing” and would

require further verification. Anthony, 298 Ga. at 830.

                                          12
      For the above reasons, we conclude that the trial court erred by finding that the

prosecutor’s “in her place” proffer in support of the state’s OCGA § 24-4-404 (b)

motion provided insufficient proof that Battle committed the other acts solely on the

basis that the proffer was a self-serving declaration. Nevertheless, we find under the

circumstances that the trial court’s ruling on the state’s 404 (b) motion must be

vacated and the case remanded for reconsideration of the 404 (b) motion. First, the

trial court’s erroneous conclusion that the proffer was a self-serving declaration, and

thus insufficient to show Battle committed the other act, precluded the court from

reaching the remaining merits of the state’s 404 (b) motion. Second, the procedure

followed by the state in presenting the 404 (b) motion at the hearing had the effect of

depriving defense counsel of a fair opportunity to make a timely objection to the

prosecutor’s use of the “in her place” proffer when it was made in support of the 404

(b) motion. As set forth above, when the hearing commenced, the prosecutor

represented to the court that the state’s only contention was that the other acts

evidence was admissible as evidence “intrinsic” to the charged offenses, and that

there was no motion and no issue with respect to admissibility of other acts

“extrinsic” evidence pursuant to OCGA § 24-4-404 (b). With the hearing in this

posture, the prosecutor made a proffer by stating “in her place” the evidence the state

                                          13
expected to show in support of its motion for admission of the intrinsic evidence.

Defense counsel made no objection to the prosecutor’s proffer made for this purpose.

Only after the state made the proffer and gave supporting argument did the prosecutor

finally inform the trial court that the state also intended to use the proffer to support

an additional motion for the admission of the other acts pursuant to OCGA § 24-4-

404 (b) as “extrinsic” to the charged offenses. The trial court sanctioned this unusual

procedure by allowing the state to proceed with argument in support of the 404 (b)

motion. Since the proffer had already been made, the procedure had the effect of

depriving defense counsel of an opportunity to timely object to this use of the proffer

when it was made. Accordingly, the trial court’s ruling on the state’s 404 (b) motion

is vacated. On remand, the trial court is directed: (1) to give defense counsel an

opportunity to object to the prosecutor’s proffer in support of the 404 (b) motion and

to require verification by use of traditional evidence at the hearing, and (2) to

reconsider the merits of the state’s 404 (b) motion in accordance with this opinion.

      Judgment vacated in part and case remanded. Appeal dismissed in part.

Ellington, P. J., and Rickman, J., concur.




                                           14
