In the Supreme Court of Georgia

Decided: April 18, 2023

S23A0109. PRIESTER v. THE STATE

 COLVIN, Justice.

Appellant Joseph Priester was convicted of malice murder and 

related offenses in connection with the May 2017 shooting death of 

Genaro Rojas-Martinez.1 On appeal, Appellant contends that (1) the 

 1 The crimes were committed on May 15, 2017. On August 25, 2017 a 

Cobb County grand jury indicted Appellant for malice murder (Count 1), felony 

murder predicated on aggravated assault (Count 2), aggravated assault (Count 

3), possession of a firearm during the commission of a felony (Count 4), and 

possession of a firearm by a convicted felon (Count 5). A bifurcated jury trial 

commenced on September 14, 2018. In the second portion of the bifurcated 

trial on the felony firearm possession charge, the State tendered a certified 

copy of Appellant’s prior felony conviction for aggravated assault from Upson 

County. The jury found Appellant guilty of all counts. The trial court imposed 

a sentence of life in prison without the possibility of parole for malice murder 

(Count 1), plus a consecutive five-year term for the possession of a firearm 

during the commission of a felony (Count 4). The trial court also imposed five 

years on probation for the possession of a firearm by a convicted felon count, to 

be served consecutively to Count 1 and concurrently with Count 4. The other 

counts were either merged for sentencing purposes or vacated by operation of 

law. On September 17, 2018, Appellant’s trial counsel timely filed a motion for 

new trial, which was amended through new counsel on March 28, 2022. The 

trial court held a hearing on the amended motion on June 6, 2022, and denied 
2

trial court erred in admitting evidence of an armed robbery and 

shooting Appellant allegedly committed the day before the murder, 

pursuant to OCGA § 24-4-404 (b) (“Rule 404 (b)”); and (2) the trial 

court erred in instructing the jury that it could consider the prior 

armed-robbery and shooting evidence for the purposes of 

opportunity, intent, knowledge, and lack of mistake or accident.

Seeing no reversible error, we affirm. 

1. The evidence at trial showed the following.2 On May 15, 

2017, at 10:55 p.m., Smyrna Police Department officers were 

dispatched to a gas station located in Cobb County after multiple 

911 calls reported a shooting. When officers arrived on the scene, 

they found Rojas-Martinez lying in “a large amount of blood” 

between his red 2006 Ford F150 truck and a gas pump. Medical 

 

the amended motion on July 1, 2022. Appellant filed a timely notice of appeal. 

The case was docketed to our term of court beginning in December 2022 and 

submitted for a decision on the briefs.

2 In light of the harmless-error analysis we undertake in Divisions 2 and 

3 of this opinion, “we review the record de novo, and we weigh the evidence as 

we would expect reasonable jurors to have done so as opposed to viewing it all 

in the light most favorable to the jury’s verdict.” Moore v. State, 315 Ga. 263, 

264 n.2 (1) (882 SE2d 227) (2022) (citation and punctuation omitted). 
3

personnel pronounced him dead at the scene, and the medical 

examiner later determined that the cause of death was a gunshot 

wound to the back of the head. During their investigation, officers 

learned that Rojas-Martinez had stopped at the gas station on his 

way home from the restaurant where he worked as a waiter. 

Officers obtained the restaurant’s video surveillance footage 

from the night of the shooting. Entering the parking lot at 8:26 p.m.

was a green 2002 Chevrolet Avalanche, with faded paint and various 

yard and cleaning equipment in the bed of the truck. The Avalanche 

remained in a parked position until 10:02 p.m. The Avalanche left 

the parking lot and returned at 10:27 p.m. The Avalanche exited 

the parking lot for the final time at 10:34 p.m. No one entered or 

exited the vehicle at any point during this timeframe. 

Officers also viewed the gas station surveillance video, which 

showed that Rojas-Martinez entered the parking lot at 

approximately 10:53 p.m., parked in front of a gas pump, and then

walked inside the gas station store. Thereafter, the green Avalanche 

entered the parking lot and parked on the opposite side of the pump 
4

as Rojas-Martinez’s truck. When Rojas-Martinez returned to his 

vehicle, a male wearing dark clothes and a hat exited the Avalanche. 

The man then ran up behind Rojas-Martinez, pointed a silver 

revolver at the back of his head, and fired. The revolver initially 

misfired, and the shooter quickly readjusted the gun and fired again. 

Rojas-Martinez immediately fell to the ground after the second shot.

The shooter returned to the Avalanche and sped away from the gas 

station. 

Investigators released images of the shooter and the Avalanche 

to local news outlets. The next day, Eddie Holland and Erikk 

Slaughter arrived at the Henry County Police Department with the 

Avalanche. In speaking with Holland and Slaughter,3 officers

learned that the Avalanche was titled in Slaughter’s name and that 

Holland was in possession of the vehicle and in the process of buying 

it for his mobile pressure washing business. Holland stated that, on 

the night of the shooting, he lent the Avalanche to Appellant, who 

had worked a job for Holland earlier that day. Appellant planned to

 3 Both Holland and Slaughter testified for the State at trial.
5

spend the night at Holland’s house in McDonough to work another 

job the following day, and had asked to borrow the truck to drive to 

his mother’s house to pick up some clothes. At the time Holland went 

to bed on May 15, Appellant had not returned with the truck. 

However, when Holland woke up the next day, Appellant was asleep 

on Holland’s couch and the Avalanche was parked outside Holland’s 

home. Later that morning, Appellant informed Holland that he was 

no longer interested in working the job Holland had previously

offered to him. Both Holland and Slaughter identified the green 

Avalanche in the surveillance videos as the vehicle that Holland was 

in the process of buying from Slaughter. 

Officers applied for and received a search warrant for the 

Avalanche and Appellant’s cell phone records. Officers did not lift 

any fingerprints from the Avalanche. However, the cell phone 

records revealed that Appellant’s phone pinged off a cell tower 

located in McDonough in the approximate vicinity of Holland’s 

house around 7:40 p.m. on the night of the shooting. Between 8:42 

p.m. and 10:16 p.m., Appellant’s cell phone pinged off a tower located 
6

in Smyrna approximately 40 miles away from Holland’s house and 

4 miles from the restaurant at which Rojas-Martinez was working. 

Then, at 10:56 p.m., approximately one minute after the Smyrna 

Police Department received its first 911 call to report the shooting, 

Appellant’s cell phone made an outgoing call to a cell phone number 

associated with a man named Byron Scott. This call pinged off a cell 

tower located less than 1.2 miles from the gas station. The cell site 

location data indicated that, after Appellant made the 10:56 p.m. 

call to Scott, he traveled toward the east side of Atlanta. Within the 

next hour, Appellant called Scott four additional times, and 

Appellant’s last known location on that evening was in the general 

area of Scott’s address. 

Officers obtained a warrant for Appellant’s arrest on May 18, 

2017. Appellant was located and arrested by the U.S. Marshals 

Service in New Jersey on June 3. 

At trial, defense counsel argued that Appellant was not the 

person who shot Rojas-Martinez. To support this theory, defense 

counsel presented evidence that officers initially apprehended a 
7

different person immediately after the shooting, and further 

questioned officers about what Appellant characterized as an

incomplete investigation into Scott’s potential involvement in the 

shooting. However, the investigating officer testified that the wrong 

person was apprehended because a 911 caller had misreported the 

shooter’s vehicle and that he had interviewed Scott shortly after 

obtaining Appellant’s cell-phone records and had completed a report 

detailing this investigation.

2. In addition to the evidence described in Division 1, the State 

introduced evidence pursuant to Rule 404 (b)4 that Appellant had

committed an armed robbery and shot at a car during a drug deal on 

the day before Rojas-Martinez’s murder. At trial, the State called 

Zack Kelly, who testified that, on the day prior to Rojas-Martinez’s 

death, he and his friend, Danny Farmer, went with Appellant to an 

apartment complex “to purchase some drugs.” Upon their arrival, 

 4 Under Rule 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,” but may 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.” OCGA § 24-4-404 (b). 
8

Appellant pulled out a large, silver .44 magnum revolver that was 

about 15 inches in length, “stuck the gun to [Kelly’s] head,” and 

demanded Kelly’s money. Appellant also pointed the gun at Farmer 

and demanded his money as well. When Farmer threw his money 

onto the ground, Appellant “picked the money up and walked around 

to the front of the car, fired a round into the car, and . . . just walked 

away.” 

Appellant objected to the admission of this evidence on 

multiple grounds, including that the evidence was not relevant to 

any issue other than Appellant’s bad character and that any 

probative value was substantially outweighed by its prejudicial 

effect. The trial court overruled the objection, finding that the 

evidence was admissible under Rule 404 (b) to show opportunity, 

intent, knowledge, and absence of mistake or accident. In doing so, 

the trial court determined that the evidence showed that Appellant 

had a gun similar to the one shown in the gas station footage, knew 

about handguns, had previously fired a handgun, and was in 

Georgia when the crime was committed. The trial court then 
9

instructed the jury before Kelly’s testimony and again during the 

final charge on the permissible purposes for which it could consider 

the evidence, informed the jury that it could not use the evidence to 

conclude that Appellant had a propensity to commit crimes, and 

reminded the jury that Appellant was on trial for the offenses 

charged in the indictment and not for any other acts. 

Appellant asserts that this ruling was error. The State 

concedes that the trial court erred by admitting the Rule 404 (b) 

evidence for the purposes of intent, knowledge, and lack of mistake 

or accident. However, the State maintains that the evidence was 

admissible for the purpose of proving opportunity under Rule 404 

(b). Assuming without deciding that the trial court erred in 

admitting this evidence, the error was harmless and, therefore, does 

not require reversal. 

“The test for determining nonconstitutional harmless error is 

whether it is highly probable that the error did not contribute to the 

verdict.” Henry v. State, 307 Ga. 140, 146 (2) (c) (834 SE2d 861) 

(2019) (citation and punctuation omitted). When determining 
10

whether the error was harmless, “we review the record de novo and 

weigh the evidence as we would expect reasonable jurors to have 

done.” Saxton v. State, 313 Ga. 48, 51 (2) (b) (867 SE2d 130) (2021)

(citation and punctuation omitted). We have previously concluded 

that erroneously admitted Rule 404 (b) evidence was not harmful 

where the properly admitted “evidence against [the defendant] was 

strong,” see Allen v. State, 310 Ga. 411, 415 (2) (851 SE2d 541) 

(2020), and where “the trial court instructed the jury that it could 

consider the other acts evidence only for the limited [Rule 404 (b)] 

purpose[s],” see Edwards v. State, 308 Ga. 176, 184 (3) (839 SE2d 

599) (2020).

Here, the evidence against Appellant was strong. Although 

Appellant argued at trial that someone else shot the victim, the jury

was shown the gas station surveillance video, which captured the

shooter’s face, profile, and distinctive car; heard unrebutted 

testimony that, on the night of the shooting, Appellant was in 

possession of the green Avalanche shown in the surveillance videos; 

and heard testimony that the cell site location data from Appellant’s 
11

phone placed him near the restaurant during Rojas-Martinez’s shift 

shortly before the shooting, and approximately one mile away from 

the gas station immediately after the shooting. Moreover, the jury 

heard testimony that, on the morning after Rojas-Martinez’s 

murder, Appellant informed Holland that he was no longer 

interested in working for him, and that, at some point afterward, he

fled the state. Additionally, the defense’s theory that someone else 

had shot the victim was undermined by the investigating officer’s 

testimony that he had completed an investigation into Scott’s 

potential involvement with the shooting and that officers had 

originally apprehended the wrong person because a 911 caller 

misreported the shooter’s vehicle.

Further, the trial court twice instructed the jury that it could 

only consider the other-act evidence for the limited Rule 404 (b) 

purposes and that it could not conclude from the evidence that 

Appellant had a propensity to commit crimes, and the court 

reminded the jury that Appellant was on trial only for the charges 

listed in the indictment. Because we presume that jurors follow the 
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trial court’s instructions, any harm caused by the Rule 404 (b) 

evidence was mitigated by the trial court’s instructions limiting the 

jury’s consideration of the evidence. See Williams v. State, 313 Ga. 

443, 449-450 (1) (870 SE2d 397) (2022) (“Because we ordinarily 

presume that jurors follow [the trial court’s instructions], any unfair 

prejudice from the admission of the [Rule 404 (b)] evidence was 

reduced.” (citation and punctuation omitted)). Moreover, although 

the trial court instructed the jury that it could consider the otheract evidence for the purposes of intent, knowledge, and absence of 

mistake or accident, which the State concedes were not permissible 

purposes, the instructions, as a whole, reduced the likelihood that 

any error in admitting the armed-robbery and shooting evidence 

contributed to the verdict, as “they did, at least, tell the jury what it 

could not do,” namely, that the jury could not consider the evidence 

as proof of Appellant’s propensity to commit crimes. Nundra v. 

State, __Ga. __, __ (2) (__ SE2d __) (2023) (emphasis in original) 

(although the limiting instructions “did not meaningfully explain for 

which permissible purpose the [Rule 404 (b)] evidence was relevant,” 
13

the trial court’s “admonition that the jury may not infer from such 

evidence that the accused is of a character that would commit such 

crimes reduce[d] the likelihood that the evidence of [the defendant’s] 

past crimes influenced the verdict” (punctuation omitted)).

Therefore, given the strength of the evidence against Appellant 

and the trial court’s limiting instructions, we conclude that it is 

highly probable that the admission of the armed-robbery and 

shooting evidence did not contribute to the verdict. See Howell v. 

State, 307 Ga. 865, 875-876 (3) (838 SE2d 839) (2020) (admission of

Rule 404 (b) evidence harmless where evidence of Appellant’s guilt 

was strong and the trial court instructed the jury that it could 

consider the other-act evidence only for the limited Rule 404 (b) 

purpose, that Appellant was on trial only for the offenses charged in 

the current case, and that the other-act evidence, by itself, could not 

be a basis for conviction). Accordingly, Appellant’s claim fails. 

3. Appellant next contends that the trial court erred by 

instructing the jury that it could consider the armed-robbery and 

shooting as Rule 404 (b) evidence for the limited purposes of 
14

opportunity, intent, knowledge, and absence of mistake or accident, 

because the evidence itself was improper. We again identify no 

reversible error. 

Because trial counsel did not object to the jury instructions, we 

review the trial court’s jury instructions under the plain-error 

standard. See State v. Williams, 308 Ga. 228, 231 (1) (838 SE2d 764) 

(2020). To satisfy plain error review, Appellant must show that “the 

alleged instructional error was not affirmatively waived; was clear 

and obvious, rather than subject to reasonable dispute; likely 

affected the outcome of the trial; and seriously affected the fairness, 

integrity, or public reputation of judicial proceedings.” Walker v. 

State, 311 Ga. 719, 724 (3) (859 SE2d 25) (2021) (citation and 

punctuation omitted). 

Appellant’s claim fails because he cannot satisfy plain error 

review. As explained in Division 2, the State has conceded that the 

admission of the armed-robbery and shooting evidence for the 

purposes of intent, knowledge, and absence of mistake or accident 

was erroneous. However, even assuming that the trial court clearly 
15

erred by instructing the jury that the Rule 404 (b) evidence could be 

considered for those purposes and for the purpose of opportunity, 

Appellant has failed to satisfy the third prong of plain error review:

that the challenged instructions likely affected the outcome of his 

trial. 

When determining whether a jury instruction likely affected 

the outcome of the trial, this Court considers the jury instruction as 

a whole, rather than looking at the challenged instruction in 

isolation. See Carpenter v. State, 305 Ga. 725, 728 (3) (827 SE2d 

250) (2019). Here, the trial court instructed the jury that it could 

not use the other-act evidence to make an inference about 

Appellant’s character or as evidence that Appellant had a propensity 

to commit crimes. Moreover, the trial court reiterated to the jury 

that Appellant was “on trial for the offenses charged in this bill of 

indictment only and not for any other acts, even though such acts 

may incidentally be criminal”; that the State carried the burden “to 

prove every material allegation of the indictment and every 

essential element of the crimes charged beyond a reasonable doubt,” 
16

which included the elements of intent and identity; and that the jury 

could not convict Appellant “of any crime unless and until each 

element of the crime as charged is proven beyond a reasonable 

doubt.” As discussed above, we assume that the jury followed the 

trial court’s instructions not to use the other-act evidence to make 

improper inferences about Appellant’s character or propensity to 

commit crimes. Further, although the trial court instructed the jury 

that it could consider the other-act evidence for the purposes of 

intent, knowledge, and absence of mistake or accident, such 

instructions did not likely affect the outcome of Appellant’s trial, 

even if the jury considered the evidence for such impermissible 

purposes, given the strength of the evidence of Appellant’s guilt. As 

discussed above, the jury was shown the gas station surveillance 

video of the shooting and heard unrebutted testimony that 

Appellant was in possession of the green Avalanche seen in the video 

and that the cell site location data from Appellant’s phone placed 

him approximately one mile from the gas station immediately after 

the shooting. Therefore, based on the trial court’s instructions as a 
17

whole and the strong evidence of Appellant’s guilt, we cannot say 

that the challenged instructional error likely affected the outcome of 

his trial.5 See Jones v. State, 302 Ga. 892, 897-898 (3) (810 SE2d 

140) (2018) (concluding any error in the jury instructions was 

harmless, given the court’s instruction as a whole and the very 

strong evidence of defendant’s guilt). 

Judgment affirmed. All the Justices concur, except Peterson, 

P.J., disqualified.

 5 Appellant has not raised a cumulative-error claim, and we discern no 

cumulative prejudice from the evidentiary and instructional errors we assume. 

See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808 (2020) (“[A] defendant who 

wishes to take advantage of the [cumulative-error] rule that we adopt today 

should explain to the reviewing court just how he was prejudiced by the 

cumulative effect of multiple errors.”).