                              SECOND DIVISION
                                MILLER, P. J.,
                           RICKMAN and REESE, 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


                                                                   October 25, 2019




In the Court of Appeals of Georgia
 A19A0814. ZACCHAEUS HOLT v. THE STATE.

      RICKMAN, Judge.

      Zacchaeus Holt was tried and convicted of armed robbery, aggravated battery,

and possession of a firearm during the commission of a felony. Following the denial

of his motion for new trial, Holt appeals. For the reasons that follow, we reverse.

      Construed in favor of the verdict, the evidence presented at trial shows that

Holt met the victim in September or October 2015 and explained that he had no place

to stay. At some point, the victim let Holt stay with him in an apartment that the

victim had moved into on September 25. During their first two weeks living together,

the victim and Holt sometimes used cocaine together.

      At the time of the robbery, the victim recently had a job that paid him $722

twice a month, he had about $700 cash in his possession, and he had told Holt that he
had recently been paid. On the morning in question, after the two men had been up

all night drinking and smoking crack cocaine, rendering the victim, in his own words,

“high, high, high, you know,” the victim gave Holt $100 to buy more drugs. The

victim’s additional cash was visible to Holt at that time. Holt left the apartment and

eventually returned empty handed or with an inadequate amount of drugs. When the

victim asked for his money back, Holt departed again but returned with a pistol and

demanded money from the victim. The victim refused, and Holt shot him twice in the

leg, which later had to be amputated. During the ensuing struggle, Holt pistol

whipped the victim on the head, further injuring him, then took the victim’s money.

Holt then fled, and the victim called for and received help from a neighbor.

      Holt, age 20 at the time of the incident, testified in his own defense that he was

looking for an apartment where the victim lived, that he received social security

disability payments, that the victim recently invited him to live there in exchange for

$150 a month, and that Holt had made a rent payment to the victim. Holt testified that

on the night of the incident, he was smoking marijuana and drinking beer while the

victim was smoking crack cocaine, that the victim asked him to buy some drugs and

gave him $100 to do so, that he purchased the drugs, and that the victim used them.

At approximately 7:22 a.m., Holt left to purchase a gun for $100 even though he

                                          2
already had a loaded handgun. When he returned, the victim asked Holt for $20 to

buy more drugs, but Holt refused. At that point the two men “got into [a] little

altercation,” and the victim, who was much bigger than Holt, attacked Holt, striking

him in the face. In response, Holt pulled his loaded weapon from his waistband and

fought back by striking the victim in the head, and, after the victim began to choke

Holt, by pointing the gun downward and shooting the victim in the leg. Holt then

panicked and fled. He denied trying to rob the victim.

      Following his conviction and the denial of his motion for new trial, Holt

appeals.

      1. On appeal, Holt contends the trial court committed plain error by allowing

the State to introduce good character evidence regarding the victim. In the alternative,

he contends his trial counsel was ineffective by failing to object to the same evidence.

The State counters that the evidence at issue was used to rebut specific inferences that

Holt raised on cross-examination of the victim.

      The State called the victim as its first witness and, during the direct

examination, the State asked the victim if he was an “angry drunk, or . . . angry high,”

which the victim denied. The State also asked the victim whether he had ever been

convicted of a violent offense, which he also denied. Holt did not object to this

                                           3
testimony. On cross-examination, Holt impeached the victim by getting the victim to

admit that he had multiple convictions for simple battery, that he had used aliases to

evade arrest, that he had used cocaine in his past, that he had spent perhaps ten years

in prison and was currently on parole.

      The State then called as a witness the victim’s boss at a nonprofit organization.

He testified that the organization employed convicted felons but only nonviolent

felons and that the victim had never been violent at work. The witness also testified,

however, that he had never fired the victim; that the victim never had to be

disciplined; and that the victim was a good worker, was “always happy to be there,”

and made friends with everyone. The State also called the victim’s employer’s human

resources director as a witness. She testified that the victim tested negative for drugs

when he was employed, that she had not received any complaints about the victim,

and that the victim was a “very good employee,” was “extremely reliable,” had a

“great attitude,” was “very dependable,” was “extremely respectful,” and was “very

professional.” Holt did not object to this testimony from these two witnesses.

      (a) Because Holt did not object to the State’s introduction of good character

evidence about the victim, we review the trial court’s decision for plain error. See

Cade v. State, _ Ga. App. _ (4) (832 SE2d 453) (2019) (appellate review of

                                           4
evidentiary rulings without objection “are conducted for plain error affecting the

[a]ppellant’s substantial rights under OCGA § 24-1-103 (d)”); see also Beach v. State,

_ Ga. App. _ (3) (b) (830 SE2d 565) (2019).

      To show plain error, [Holt] must point to an error that was not
      affirmatively waived, the error must have been clear and not open to
      reasonable dispute, the error must have affected his substantial rights,
      and the error must have seriously affected the fairness, integrity[,] or
      public reputation of judicial proceedings.


(Citation and punctuation omitted.) State v. Herrera-Bustamante, 304 Ga. 259, 264

(2) (b) (818 SE2d 552) (2018).

      First, given that the State initially introduced the good character evidence on

direct examination of the victim during its case in chief, we find no affirmative

waiver1 by Holt regarding the introduction of this evidence.2



      1
         “For purposes of plain error review, an affirmative waiver requires the
intentional relinquishment or abandonment of a known right, and the mere failure to
object does not constitute such an affirmative waiver because it is more appropriately
described as a forfeiture.” (Citation and punctuation omitted.) State v. Parks, 350 Ga.
App. 799, 810 (1) (830 SE2d 284) (2019).
      2
        The State’s suggestion that the defense opened the door as to the victim’s
character during opening statement is without merit. “[W]hat is said by the attorneys
in opening statements is not evidence.” Zackery v. State, 286 Ga. 399, 402 (3) (688
SE2d 354) (2010).

                                          5
      The admissibility of evidence of a victim’s character is governed by OCGA §§

24-4-404 and 24-4-405. See Revere v. State, 302 Ga. 44, 47 (2) (a) (805 SE2d 69)

(2017). Under these rules, “the State may only introduce evidence of a victim’s good

character to rebut evidence of a pertinent character trait of the victim after the

defendant has first introduced such evidence at trial.” (Emphasis supplied.) Id.

Furthermore, “[i]t is error for a trial court to admit evidence of a victim’s good

character in anticipation of the defendant introducing contrary evidence at trial.”

Mondragon v. State, 304 Ga. 843, 844-845 (2) (823 SE2d 276) (2019).

      Here, the State introduced evidence of two types of good character traits of the

victim without Holt having opened the door to such testimony. First, on direct

examination of the victim by the State, the victim testified that he did not get angry

under the influence of alcohol or drugs and that he had not been convicted of a

violent offense. Second, the State elicited from two witnesses numerous references

to the victim being a good worker, a “very good employee,” “extremely reliable,”

“very dependable,” “extremely respectful,” “very professional,” and having a “great

attitude,” without Holt having opened the door to any character evidence whatsoever

about what type of employee the victim was. This was clear error not subject to

dispute. See Revere, 302 Ga. at 47-49 (2) (a) (evidence of victim’s good character

                                          6
introduced during State’s case-in-chief before defendant offered any testimony or

evidence on the topic violated Rule 404 (a) (2) and, therefore, “was simply

inadmissible evidence of [victim’s] good character”).

      We turn to whether the error affected Holt’s substantial rights or seriously

affected the fairness, integrity, or public reputation of the proceedings. If the

improper evidence included only the victim’s character for violence, we would not

find the requisite harm. At trial, Holt admitted hitting and shooting the victim, and,

as he had planned prior to trial,3 he asserted self-defense. His assertion of self-defense

involved attacking the victim’s character regarding violence and asserting that the

victim was the aggressor. Holt foreshadowed this tactic during opening statement,

when his counsel argued that the victim’s story was one of “[a]ddiction, fear, and self-

preservation.” Thus, “because [Holt] always intended to (and eventually did)

introduce evidence that [the victim] w[as] the first aggressor[ ], any error in admitting

evidence of [the victim’s] good character [as it related to violence] was solely an error

of sequencing.” Mondragon, 304 Ga. at 845 (2). And, it is therefore highly probable




      3
        Holt requested a jury charge on self-defense, which the court gave, his voir
dire questions included one on self defense, and he argued self-defense in closing.

                                            7
that such a sequencing error did not contribute to the verdict and, accordingly, it does

not amount to plain error. See Id.

       That leaves the evidence regarding the victim’s good character as an employee.

Pretermitting whether the improper introduction of this evidence standing alone

affected Holt’s substantial rights or seriously affected the fairness, integrity, or public

reputation of judicial proceedings, we reverse Holt’s conviction on the ground

addressed in Division 2.

       (b) With regard to ineffective assistance of counsel,4 Holt’s counsel’s failure

to object to the State’s initial introduction of evidence of the victim’s good character

constitutes deficient performance. See Revere, 302 Ga. at 49 (2) (a). But again




       4
              To prevail on a claim of ineffective assistance of this type,
              a defendant must show both that her trial counsel’s
              performance was deficient and that, absent that deficient
              performance, a reasonable probability exists that the
              proceeding’s outcome would have been different. If a
              defendant fails to satisfy one part of this test, then this
              Court is not required to consider the other.


(Citations omitted.) Martin v. State, _ Ga. _ (3) (Case No. S19A0489, decided
September 9, 2019).

                                            8
pretermitting whether this failure standing alone meets the test for harm in a claim for

ineffective assistance, we turn to Division 2.

      2. Holt contends that the trial court erred by allowing evidence of Holt’s bad

character over his objection, which is subject to appellate review for abuse of

discretion. Smith v. State, _ Ga. _ (2) (c) (Case No. S19A0936, decided Oct. 7, 2019).

      At trial, the State introduced evidence of an unsent text message on Holt’s cell

phone, dated eight days before the robbery, that was construed at trial as an attempt

to defraud an apartment complex. The message stated the following:

      Okay look. Dis da move. Ima get a two bedroom. Me u tyesha johnny.
      It’s gone take to[o] long time to get apt in [the victim’s apartment
      complex]. I’m just gone try Venetian. Just gotta buy check stubs.
      Tomorrow tell Johnny have the whip. Y’all two coming with me to pick
      that up. First thing first, WE are going shopping. . . .


(Emphasis supplied.) Holt objected to the evidence on the grounds that the whole

message was not relevant and that the emphasized sentence amounted to improper

character evidence in that it suggested that Holt would use fraud to apply for an

apartment. The court allowed the evidence on the ground that it corroborated that

Holt was looking for an apartment.




                                           9
      In general, “[e]vidence of a person’s character or a trait of character shall not

be admissible for the purpose of proving action in conformity therewith on a

particular occasion[.]” OCGA § 24-4-404 (a). Similarly, “[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.” OCGA § 24-4-404 (b). Further, even when

such evidence is admissible, OCGA § 24-4-405 (a) limits character evidence to

“testimony as to reputation or . . . testimony in the form of an opinion[,]” unless the

“accused testifies to his or her own character” or the “character or a trait of character

of a person is an essential element of a charge, claim, or defense.” Here, Holt did not

testify as to his own character; the character trait was not an essential element of a

charge, claim, or defense; and the text introduced a specific bad act, possible fraud,

which is not allowed. See Timmons v. State, 302 Ga. 464, 469 (2) (a) (807 SE2d 363)

(2017).

      Further, the trial court erred by holding that the evidence was intrinsic to the

alleged crimes. “Evidence is intrinsic to the charged offense . . . if it (1) arose out of

the same transaction or series of transactions as the charged offense; (2) is necessary

to complete the story of the crime; or (3) is inextricably intertwined with the evidence

regarding the charged offense.” (Citations and punctuation omitted.) Baughns v.

                                           10
State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016); see also Clark v. State, _

Ga. _ (4) (829 SE2d 306) (2019). But the fact that Holt may have attempted to

defraud an apartment complex a week earlier does not arise out of the same

transaction as his robbery of the victim, nor is it necessary to complete the story of

the crime or inextricably intertwined with the evidence of the crime. And the check-

stub information could have been redacted from the text message before it was

introduced into evidence.

      But “even where an abuse of discretion is shown, there are no grounds for

reversal if the error did not affect a ‘substantial right,’ and thus harm, the defendant.”

Venturino v. State, _ Ga. _ (2) (830 SE2d 110) (2019); see also OCGA § 24-1-103 (a)

(“Error shall not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected. . . .”). To make that determination,

“we review the record de novo and weigh the evidence as we would expect

reasonable jurors to have done so, and we assess whether it is highly probable that the

error did not contribute to the verdict.” (Citation and punctuation omitted.) Venturino,

_ Ga. _ (2).




                                           11
      The record shows that the State strongly attacked Holt’s character in its

closing, in large part by arguing that Holt had to “buy a paystub to apply to an

apartment complex”:

      [M]uch ha[s] been made as to whether we can trust [the victim] or not,
      okay. Let’s focus your attention for a second to Zacchaeus Holt. Why do
      we crucify him under the alter of credibility? Here’s a 21-year old on
      social security who’s got to buy a paystub to apply to an apartment
      complex. He goes in and out of a 55-year old dude’s house getting him
      drugs and has two cell phones. Not only that, he’s got to buy more guns,
      gun, gun, gun. I’ve already got one that’s all locked and unloaded. But
      you know what, at 3:30 [a.m.] I decided to buy me another. What a time
      to go shopping. What about him do y’all find so credible?


      In addition, the case presented to the jury amounted to a credibility contest.

Holt and the victim testified to much of the same basic circumstances, with the

material variations being who started the altercation that led to the shooting, whether

the victim had any cash, and whether Holt took it. The physical evidence somewhat

supported the victim’s story that Holt dragged him around the apartment after the

shooting, leaving multiple bloodstains. But the neighbor testified that the shooting

followed, rather than preceded, the argument between the two men. Further, the

victim admitted that he stayed up all night smoking crack cocaine and was “high,


                                          12
high, high” at the time of the incident and “kind of out of his mind.” The victim also

admitted that he had used an alias; that he had a past cocaine habit, which he had

apparently recently resumed; that he had ceased going to work very recently; and that

he had not paid his October rent bill on time. The victim also contradicted himself on

several elements of the encounter, including on how much money was in his pocket.

Finally, Holt was only 5’6” and 105 lbs, at the time, and the victim was about 5’ 11”

and 190-200 lbs, suggesting that the victim could have attempted to overpower Holt.

      In sum, we cannot conclude that it is highly probable that the error did not

contribute to the verdict. See, e.g., Harris v. State, 251 Ga. App. 879, 880 (3) (555

SE2d 485) (2001) (error not harmless during trial for drug possession, where State

improperly introduced evidence that defendant had recently been in court on charges

of “aggravated robbery”); Emilio v. State, 263 Ga. App. 604, 605 (1) (588 SE2d 797)

(2003) (where the only evidence linking defendant to drugs, other than accomplice

testimony, was his proximity to where drugs were found, the evidence was not

overwhelming, and, therefore, there was a reasonable probability that the outcome of

the trial would have been different but for trial counsel’s deficient performance in

introducing character evidence that the defendant was “wanted in five states”).

Accordingly, Holt’s conviction must be reversed. Because the evidence was sufficient

                                         13
to sustain the verdict, Holt may be retried. See Maqrouf v. State, 349 Ga. App. 174,

180 (1) (b) (825 SE2d 569) (2019).

      3. Finally, Holt contends that his trial counsel was ineffective, or the trial court

plainly erred, while instructing the jury on justification as a defense.

      We first hold that any assertion of ineffective assistance for failure to object to

the charge is not likely to occur on retrial, and therefore we need not review that

assertion. And the propriety of jury charges at a second trial will be determined at that

time. See Lynn v. State, 345 Ga. App. 258, 267 (4) (812 SE2d 786) (2018) (physical

precedent only).

      Judgment reversed. Miller, P. J., and Reese, J., concur.




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