THIRD DIVISION

DOYLE, P. J.,

REESE and BROWN, 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.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

October 4, 2021

In the Court of Appeals of Georgia

A21A0709. ALLEN v. THE STATE.

BROWN, Judge.

Following a jury trial, Marcellous Allen was convicted of three counts of

violation of the Georgia Street Gang Terrorismand Prevention Act, OCGA § 16-15-1

et seq. He appeals his convictions and the denial of his motion for new trial,

challenging the sufficiency of the evidence and contending that his convictions

violate his constitutional right to free association. Allen also contends that the trial

court erred in (1) admitting a recording over his hearsay and Confrontation Clause

objections; (2) admitting evidence of Allen’s gang involvement; and (3) denying his

motions for mistrial. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” (Citation and punctuation omitted.) Solomon v. State, 342 Ga. App. 836

(805 SE2d 293) (2017). So viewed, the record shows that around 3:00 p.m. on

October 3, 2017, a “shootout” occurred outside the G&T Snack Bar in Hartwell.

Employees working in nearby officestestified that they heard multiple sets of gunfire

and observed men running by outside, including one man wearing a white tank top

who was armed with a gun. Police responded to the shooting and after speaking with

witnesses, learned that Ray Tate, Allen, and some other men were involved in the

shootout. Shortly after the incident, police found Tate hiding with a gun in a nearby

apartment and apprehended him. On the following day, police arrested Allen. Allen

did not have a gun at the time of his arrest. In his interview with police, Allen

admitted being present during the shootout, but that he ran when Ray Tate started

shooting and did not return fire. 

Police also interviewed a bystander who witnessed the shootout. In the

interview, which was played for the jury, the bystander stated he saw three men,

including Allen and “Young Money,” startshooting at Ray Tate. When the bystander

was called to testify, he denied seeing anything to do with the shootout. A female

eyewitness testified that she heard gunshots and saw Allen, Ray Tate, and “Young

Money” running, but she did not see a gun. 

2
One of Allen’s associates,

1

“Slime,” testified that on the day of the incident, he

met Allen and some others near the G&T Snack Bar, that they walked to the G&T and

approached Ray Tate, that Tate started shooting, and that another associate called

“Young Money”

2

shot back at Tate before everyone started running. Slime testified

that he saw Allen with a gun and that Allen ran into an alley before Slime heard more

shots fired. According to Slime, Allen was a member of the Sex-Money-Murder

gang.3

On the night prior to the shootout, Ray Tate was on Facebook live, repeatedly

asking “where murder gang at, stop hiding” and calling Allen a “bitch.” Tate also

called out “Slime” and “Young Money.” An audio recording of this Facebook live

was played for the jury. Records obtained from Allen’s cellular phone showed that

at 9:46 p.m. that same night, Allen received a text message stating, “Ray on live

1

 The associate received immunity in exchange for his testimony. 

2 The associate clarified that “Young Money” was Quenton Simpson, Allen’s

co-indictee. 

3 The State also submitted photographs and posts from Allen’s Facebook,

indicating Allen was affiliated with the “Sex-Money-Murder” gang. An investigator

admitted as an expert in criminal street gangs testified that “Sex-Money-Murder” is

a subset of the “Bloods,” a criminal street gang. The parties subsequently stipulated

that “Sex-Money-Murder” is a criminal street gang. 

3
talkin bout murder gang stop hiding.” The records reflected the text message was

“read.” Allen’s phone records also established that Allen and Slime exchanged

multiple phone calls in the approximately twenty minutes leading up to the shootout. 

In a joint indictment,

4

 Allen was charged with four counts of violation of the

Street Gang Terrorism and Prevention Act and one count each of aggravated assault,

possession of a firearm during commission of a felony, possession of marijuana with

intent to distribute, illegal use of communication facility, and possession of a firearm

by a convicted felon. The jury found Allen guilty of three counts of violation of Street

Gang Terrorismand Prevention Act (Counts 1-3) and not guilty of aggravated assault

and possession of a firearm during commission of a felony (Counts 4 and 5). The trial

was bifurcated, and the jury returned a not guilty verdict on possession of a firearm

by a convicted felon and one count of violation of the Street Gang Terrorism and

Prevention Act (based on possession of a firearm by a convicted felon). The counts

charging possession of marijuana with intent to distribute and illegal use of

communication facility were severed and tried separately. Allen filed a motion for

new trial, and the trial court denied the motion, as amended. 

4 Allen’s co-indictee, Quenton Simpson, pleaded guiltypursuant to a negotiated

plea deal prior to Allen’s trial. 

4
1. Allen arguesthat the evidence wasinsufficient to sustain his convictionsfor

violation of the Street Gang Terrorism and Prevention Act. Specifically, he contends

that the State failed to establish that he committed the predicate acts of “criminal

street gang activity” because he was acquitted of the predicate offenses charged in the

indictment. We disagree.

Allen was charged with three counts of violating the Georgia Street Gang

Terrorismand Prevention Act by participating in criminalstreet gang activity through

the commission of aggravated assault (Count 1), possession of a firearm during

commission of a felony (Count 2), and discharging a firearm near a public highway

(Count 3), while associated with “Sex-Money-Murder, a subset of the Bloods, a

criminal street gang.”5 The indictment charged Allen with two of the predicate

offenses, namely aggravated assault and possession of a firearm during commission

of a felony. 

In order to establish that Allen violated the Street Gang Terrorism and

Prevention Act, the State was required to prove four elements: “(1) the existence of

a criminal street gang, [as] defined in OCGA § 16-15-3 (2) . . . ; (2) [Allen’s]

5 As earlier stated, Allen was charged with a fourth count of violation of the

Street Gang Terrorism and Prevention Act through the commission of possession of

a firearm by a convicted felon. Allen however was acquitted of this charge. 

5
association with the gang; (3) that [Allen] committed one of the offenses identified

in OCGA § 16-15-3 (1); and (4) that the crime was intended to further the interests

of the gang.” (Citation and punctuation omitted.) Boyd v. State, 306 Ga. 204, 209 (1)

(b) (830 SE2d 160) (2019). Accord Broxton v. State, 306 Ga. 127, 133 (2) (829 SE2d

333) (2019). Allen only disputes the sufficiency of the evidence with regard to the

third element because he was acquitted of the predicate offenses, and we conclude

that sufficient evidence supports the remaining elements.

“An acquittal on one charge does not affect the sufficiency of the evidence as

to another charge, even if the conviction is a compound offense, and the acquittal was

for a predicate offense.” Houseworth v. State, 348 Ga. App. 119, 124 (1) (c) (820

SE2d 231) (2018). Accordingly, even though Allen was acquitted of aggravated

assault and possession of a firearm during commission of a felony, any evidence

offered during the trial may be used to evaluate the sufficiency of the evidence for his

convictions for violation of the Street Gang Terrorism and Prevention Act. See Allen

v. State, 351 Ga. App. 680, 684 (832 SE2d 659) (2019). On appeal, “[w]e neither

weigh the evidence nor judge the credibility of witnesses, but determine only

whether, after viewing the evidence in the light mostfavorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

6
reasonable doubt.” (Citation and punctuation omitted.) Bynes v. State, 336 Ga. App.

223 (784 SE2d 71) (2016). “[T]he jury’s verdict will be upheld so long as there is

some competent evidence, even though contradicted, to support each fact necessary

to make out the State’s case.” Morris v. State, 340 Ga. App. 295, 297 (797 SE2d 207)

(2017). 

Here, the State presented sufficient evidence fromwhich a jury could conclude

that Allen committed the predicate offenses of aggravated assault, possession of a

firearm during commission of a felony, and discharging a firearm near a public

highway. Eyewitness testimony established that a shootout involving multiple men

took place outside the G&T Snack Bar, that at least one of the men was armed with

a gun, and that Allen was involved. One of the men involved in the shootout testified

that Allen had a gun and that he heard gunshots after Allen ran into an alley. Further,

one bystander stated that he saw Allen shooting at Ray Tate. Although the bystander

recanted his statement at trial, “it is the jury’s role to resolve conflictsin the evidence

and determine the credibility of witnesses, and the presence of such conflicts does not

render the evidence insufficient.” (Citation and punctuation omitted.) Benton v. State,

356 Ga. App. 441, 444 (1) (c) (847 SE2d 625) (2020) (“[t]his law applies even when

a witness recants her previous statement”). See also Walker v. State, 348 Ga. App.

7
273, 275 (1), n.1 (821 SE2d 567) (2018). Finally, the State presented evidence of

Allen’s motive in the form of Ray Tate’s Facebook live, in which he called out the

“Sex-Money-Murder” gang as well as Allen individually.

Moreover, the trial court charged the jury on the law regarding party to a crime.

Under this theory, “[o]ne is culpable as a party to a crime, even if he did not directly

commit it, if he intentionally aids or abets in the commission of the crime or

intentionally advises, encourages, hires, counsels, or procures another to commit the

crime.” (Citations and punctuation omitted.) Stewart v. State, 243 Ga. App. 860, 861

(1) (534 SE2d 544) (2000). “Presence, companionship, and conduct before and after

the offense are circumstances from which one’s participation in the criminal intent

may be inferred.” (Citation and punctuation omitted.) Id. Although the jury acquitted

Allen of the charged predicate offenses, we conclude that evidence was sufficient to

prove that Allen committed the predicate offenses as a party to the crimes. Cf.

Daniely v. State, 309 Ga. App. 123, 124-125 (1) (709 SE2d 274) (2011) (finding

evidence sufficient to affirm conviction of possession of a knife during the

commission of the felony of aggravated assault, despite the defendant’s acquittal for

predicate offense). See also Dixon v. State, 309 Ga. 28, 35-36 (2) (b) (843 SE2d 806)

8
(2020) (rejecting contention that the principle of “party to the crime” is not available

for a charge of participating in criminal gang activity under OCGA § 16-15-4 (a)).

To the extent Allen raises an inconsistent verdict argument, such an argument

lacks merit. “As a general rule, inconsistent verdicts occur when a jury in a criminal

case renders seemingly incompatible verdicts of guilty on one charge and not guilty

on another. In Georgia, . . . we have abolished the rule that inconsistent verdicts

require reversal.” (Emphasis in original.) McElrath v. State, 308 Ga. 104, 108 (2) (a)

(839 SE2d 573) (2020). See also State v. Robinson, 275 Ga. App. 117 (619 SE2d 806)

(2005) (“[t]he Supreme Court of Georgia abolished the inconsistent verdict rule . . .

and the relevant question on appeal is whether the evidence viewed in the light most

favorable to the conviction is sufficient to support the verdict”) (citation omitted).

[I]nconsistent verdicts — even verdicts that acquit on a predicate

offense while convicting on the compound offense — should not

necessarily be interpreted as a windfall to the Government at the

defendant’s expense. It is equally possible that the jury, convinced of

guilt, properly reached its conclusion on the compound offense, and then

through mistake, compromise, or lenity, arrived at an inconsistent

conclusion on the lesser offense.

McElrath, 308 Ga. at 108-109 (2) (a), citing United States v. Powell, 469 U. S. 57,

64-65 (105 SCt 471, 83 LE2d 461) (1984). “Because of this, the issue is not whether

9
an acquittal on one charge would logically necessitate acquittal on another charge on

which the jury convicted the defendant; rather the sole question is whether the

evidence viewed in favor of the conviction was sufficient to support the guilty

verdict.” (Citation, punctuation, and emphasis omitted.) Presley v. State, 358 Ga.

App. 277, 281 (1) (855 SE2d 30) (2021). In sum, we conclude that the evidence

presented against Allen was sufficient to authorize a rational jury to find beyond a

reasonable doubt that he was guilty of the offenses that served as a predicate for his

convictions for violation of the Street Gang Terrorism and Prevention Act.

2. Allen also asserts that his convictions violate his constitutional right to free

association. Allen posits that because he was acquitted of the charged predicate

offenses, he was, in effect, convicted based on “mere association.”6

Our Supreme Court previously has held that OCGA § 16-15-4 (a) does not

infringe upon the First Amendment right to freedom of association:

The act of associating with compatriots in crime is not a protected

associational right. To support a conviction, the accused must be shown

to have conducted or participated in criminalstreet gang activity through

6 One of Allen’s convictions for violation of the Street Gang Terrorism and

Prevention Act was premised on discharging a firearm near a public highway, an

offense for which he was not separately charged in the indictment. We therefore find

Allen’s argument in this regard inapplicable to this conviction. 

10
the commission of an actual criminal act. Mere association is

insufficient. OCGA § 16-15-4 (a) comports with due-process

requirements because it punishes conduct, not association. It does not

unconstitutionally criminalize membership in an organization because

the statute does not impermissibly establish guilt by association alone.

Moreover, the right to association does not provide protection to those

organizations that commit a felony. Criminal gang activity is not

protected activity even when committed by a group exercising their

constitutional right to free association.

(Citations and punctuation omitted.) Rodriguez v. State, 284 Ga. 803, 810 (4) (671

SE2d 497) (2009). As concluded in Division 1, there was sufficient evidence from

which a jury could conclude that Allen committed the predicate offenses. The fact

that the jury decided to return a not guilty verdict on the aggravated assault and

possession of a firearm during commission of a felony charges does not render

Allen’s convictions unconstitutional. See id.

3. Allen contends that the trial court erred in admitting over his objection an

audio recording of the Facebook video by Ray Tate because it violates the

Confrontation Clause and constitutes inadmissible hearsay. We disagree.

(a) Allen contends that the trial court’s admission of the recording violated his

Confrontation Clause rights because “the defense was not able to confront the

11
statements made [in the recording].” Because the statements in the recording do not

implicate the Confrontation Clause, we disagree.

As our Supreme Court has explained, “[t]he Confrontation Clause imposes an

absolute bar to admitting out-of-court statements in evidence when they are

testimonial in nature, and when the defendant does not have an opportunity to

cross-examine the declarant.” (Citation and punctuation omitted.) McCord v. State,

305 Ga. 318, 321 (2) (a) (825 SE2d 122) (2019). Thus, “the Confrontation Clause

applies only to out-of-court statements that are testimonial in nature.” (Citation,

punctuation, and emphasis omitted.) McClendon v. State, 299 Ga. 611, 617 (4) (b)

(791 SE2d 69) (2016). “A statement is testimonial if its primary purpose was to

establish evidence that could be used in a future prosecution.” (Citation and

punctuation omitted.) Franklin v. State, 298 Ga. 636, 640 (2) (784 SE2d 359) (2016).

See also Crawford v. Washington, 541 U. S. 36, 51-52 (III) (A) (124 SCt 1354, 158

LE2d 177) (2004) (describing the “core class of ‘testimonial’ statements” as “ex

parte in-court testimony or its functional equivalent — that is, material . . . that

declarants would reasonably expect to be used prosecutorially”). After “a

determination is made that a statement is nontestimonial in nature, normal rules

regarding the admission of hearsay apply.” (Citation and punctuation omitted.)

12
McCord, 305 Ga. at 322 (2) (a). Here, the statements made in the Facebook live

recording clearly were not intended for use in a future prosecution and thus were not

testimonial. See, e.g., Favors v. State, 296 Ga. 842, 844-845 (2) (770 SE2d 855)

(2015) (co-conspirator’s statements to girlfriend that “‘the lick went bad’” and the

victim was shot were not testimonial in nature because they were not “made under

circumstances indicating the declarant’s intent to provide evidence for a future

prosecution”). Accordingly, we turn to whether the statements in the recording were

impermissible hearsay.

(b) For a statement to constitute hearsay, it must be “offered in evidence to

prove the truth of the matter asserted.” OCGA § 24-8-801(c). Here, the statements

contained in the recording were not offered to prove the truth of the matter asserted.

Rather, the recording was offered to show its effect on Allen and his motive for

participating in the shootout. See Gates v. State, 298 Ga. 324, 326 (2) (781 SE2d 772)

(2016) (text messages victim sent to defendant’s girlfriend not offered for their truth

but for effect on defendant, establishing his motive for the murder). In other words,

the statements are not hearsay because the State offered them for a

purpose that did not require the jury to assume that the substance of the

statements was true. . . . Rather, [the] statements were significant

13
because they had been made and because they were likely to have had

an effect on the hearer, [Allen].

Brown v. State, 332 Ga. App. 635, 637 (1) (774 SE2d 708) (2015). Accordingly,

Allen’s claim that this evidence was inadmissible hearsay is without merit.

7

4. Allen also contends that the trial court erred in admitting “highly prejudicial

evidence which had little to no probative value.” While his enumeration fails to

identify the “highly prejudicial evidence,” Allen seems to take issue with the

admission of photographs posted to his Facebook profile showing Allen’s gang

affiliation as well astestimony fromthe investigator admitted as an expert in criminal

street gangs and a former prison guard. “The admission of evidence is committed to

the sound discretion of the trial court, and the trial court’s decision whether to admit

or exclude evidence will not be disturbed on appeal absent an abuse of discretion.”

Anglin v. State, 302 Ga. 333, 335 (2) (806 SE2d 573) (2017). 

The trial court admitted the photographs over Allen’s objection that their

probative value was substantially outweighed by the danger of unfair prejudice. See

7

 Allen argues there is insufficient evidence that he heard the recording for it

to have been admitted as “effect on listener.” We disagree and find that the State

presented sufficient evidence from which the jury could conclude that Allen saw, or

at least heard about, the statements made in Tate’s Facebook live.

14
OCGA § 24-4-403 (“Rule 403”). Allen objected to the expert’s testimony stating it

was “bad character evidence” and that the defense already had conceded he was in

a criminal street gang. The trial court overruled the objection. During the testimony

of the former prison guard, Allen voiced an objection under Rule 403, arguing that

“we’ve already admitted gang member association. . . . The prejudicial effect so far

outweighs the probative value . . . [s]ince we’ve admitted the fact[.]” The court

allowed the guard’s testimony over the objection. 

On appeal, Allen again arguesthat evidence of his gangmembership, including

the photographs and the testimony from both witnesses, was “unnecessarily

cumulative,” and thus “highly prejudicial with little to no probative value,” because

histrial counsel admitted during opening argument that Allen was a member of “SexMoney-Murder,” a criminalstreet gang. But counsel’sstatements during his opening

were not evidence, and the State still had to prove that Allen was a member of a

“criminal street gang” known as “Sex-Money-Murder,” as well as a connection

between that gang and the crimes at issue. See Jordan v. State, 307 Ga. 450, 453 (2)

(836 SE2d 86) (2019). See also OCGA § 16-15-3. We conclude that the trial court did

not abuse its discretion under Rule 403 when it admitted the evidence of gang

15
activity.

8 See Jordan, 307 Ga. at 453 (2) (trial court did not abuse its discretion in

admitting evidence of defendant’s gang activity where defendant was charged, inter

alia, with criminal gang activity, despite defense lawyer’s statements during his

opening that defendant was a member of “‘a gang’” and that he was “‘in a bind . . .

with this gang’”). 

8 Allen also asserts without citation to the record that “[t]he State introduced

numerous photos of [him] in prison.” Allen has not identified which photograph or

photographs he takes issue with out of the nearly thirty admitted into evidence. The

record shows that the defense objected to all of the photographs “on the basis that

since we’ve admitted he’s a gang member . . . these pictures . . . relate to proving he’s

a gang member, but they’re so inflammatory and prejudicial that they’re really bad

character evidence. . . .” The defense then singled out one photograph, stating “I’d

point out that’s DOC now.” The State responded that the photograph was relevant

because it showed Allen flashing a gang sign. Which photograph the parties were

referring to is unclear. In the absence of a specific reference to the record or

transcript, thisCourt will not search for and may not consider that enumeration. Court

of Appeals Rule 25 (c) (2) (i). “It is not this Court’s job to cull the record on behalf

of the appellant to find alleged errors.” (Citation and punctuation omitted.) Entwisle

v. State, 340 Ga. App. 122, 131 (2) (796 SE2d 743) (2017). Accordingly, Allen has

failed to carry his burden of showing an abuse of discretion by the trial court in

admitting the photographs. See Westmoreland v. State, 287 Ga. 688, 696-697 (10)

(699 SE2d 13) (2010) (appellant failed to show reversible error affirmatively by the

record, where appellant contended that trial court erred in admitting photographs, but

appellant failed to identify which of the hundreds of photographs admitted were

allegedly objectionable ones so as to allow the appellate court to isolate them for

review of appellant’s claim and whether he lodged a contemporaneous objection and

if so the nature of the objection).

16
5. Allen lastly contends that the trial court erred in denying his motions for

mistrial following “two instances of the State negligently showing documentation [of

Allen’s status as a convicted felon] on counsel tables” during voir dire. He also

contends that the court erred in denying his motion for mistrial following the

testimony of the former prison guard implying that Allen had been in prison. Lastly,

Allen argues that the trial court should have granted a mistrial based on the

photographs showing him in prison. 

(a) Motions during voir dire. On the first day of voir dire, the State left a copy

of its notice that it sought recidivist punishment face-up on the defense table. The

record shows that a discussion was held in the trial judge’s chambers, during which

defense counsel argued as follows:

Any [prospective] juror walking by that table knows that [Allen is] a

felon now, if they read it at all. . . . There’s no way we can know who or

. . . how many jurorssaw it. . . . I don’t think the State did it intentionally

because it’s bad for them, but I think the entire jury panel’s inextricably

tainted, and it’s going to call into question fundamental fairness of any

jury we pick from this panel. I don’t think there’s any way to proceed at

this point because there’s no way in good faith that we can know who

exactly has seen this without actually saying he’s a felon. I’m moving

for a continuance for the term based off that. 

17
Subsequently, the trial court denied the motion and instructed that it would proceed

with the case. 

On the following day — day two of voir dire — Allen’s counsel brought to the

trial court’s attention that the State had a notebook on its table during the first day of

voir dire, and the cover of the notebook listed the charges against Allen, including

possession of a firearm by a convicted felon. Defense counsel then “clarif[ied]” his

prior motion as follows: “I don’t think I ever actually said the word ‘mistrial’

yesterday, but I would yet again move for mistrial and a continuance for the term and

renew that motion at this point.” The trial court explained that it had treated the

previous motion as one for mistrial and further noted that “[h]aving gone back in the

courtroom yesterday after the hearing and looked at the distances, that further

reaffirmed in my mind that the motion should be denied.” The court then went on to

deny the renewed motion based on the State’s notebook because it “doesn’t involve

anything that hasn’t already been covered with jurors in voir dire.” Voir dire was not

transcribed.

As a preliminary matter, “[a] mistrial is not a proper remedy . . . before the jury

has been empaneled and sworn.” Mitchell v. State, 284 Ga. App. 209 (1) (644 SE2d

147) (2007). This is because “the time for making a motion for mistrial is not ripe

18
until the case has begun, and the trial does not begin until the jury has been impaneled

and sworn.” (Citation and punctuation omitted.) Purnell v. State, 355 Ga. App. 899,

901 (843 SE2d 637) (2020). Instead, “the proper procedural tool [is] either a

challenge to the poll or a motion for a postponement to impanel other jurors[.]”

(Citation and punctuation omitted.) Sharpe v. State, 272 Ga. 684, 687 (5) (531 SE2d

84) (2000). See also Purnell, 355 Ga. App. at 901. 

Here, Allen apparently sought to postpone the trial and restart the voir dire

process. Despite the nomenclature of the motions, the trial court appropriately

considered their merits. See Purnell, 355 Ga. App. at 901. See also Lord v. State, 304

Ga. 532, 535 (2) (820 SE2d 16) (2018) (trial court properly addressed merits of

defendant’s motion for mistrial which, in substance, was a request for a new jury

panel). And under the circumstances, we find no abuse of discretion in its declining

to postpone Allen’s trial in order to impanel other jurors. Based on the record before

us, there is no evidence that any prospective juror saw or read either document, or that

even if a prospective juror did see or read the document, that the juror ultimately

ended up on the jury. Moreover, asto the second document, the trial courtspecifically

found that the charge of possession of a firearm by a convicted felon “already [had]

been covered with jurors in voir dire.” While voir dire was not transcribed, and thus

19
we are unable to determine what exactly was “covered,” we must keep in mind that

“[c]ontrol of voir dire is vested in the sound discretion of the trial court and appellate

courts will not interfere with that discretion unless it has been abused.” Mitchell, 284

Ga. App. at 209 (1).

(b) Motion during trial. Allen also moved for a mistrial during the testimony

of an officer who testified that he previously worked at a state prison. The officer

testified that during a conversation with Allen in April 2016, Allen confirmed that he

was a member of Sex-Money-Murder and had been for a few years at that point. The

State then asked the officer whether there were any physical characteristics to look

for in determining whether someone is in a gang. The officer answered: “Look at

tattoos, their — who they associate with, any kind of writing. A lot of times in

prisons, they’ll write what their affiliation is on their clothing.” The officer then

confirmed that Allen had writing on his clothing that was consistent with him being

a member of Sex-Money-Murder. Counsel did not request a curative instruction, and

the trial court denied the motion for mistrial.

“Whether to declare a mistrial is in the discretion of the trial court and will not

be disturbed on appeal unless it is apparent that a mistrial is essential to the

preservation of the right to a fair trial.” (Citation and punctuation omitted.) Rafi v.

20
State, 289 Ga. 716, 720 (4) (715 SE2d 113) (2011). “A passing reference to a

defendant’s incarceration does not place his character in evidence.” (Citation and

punctuation omitted.) Swims v. State, 307 Ga. 651, 655 (2) (838 SE2d 751) (2020).

Moreover, while it could be inferred from the officer’s testimony that Allen

previously was in prison, this was not stated directly. Under these circumstances, we

conclude that the trial court acted within its discretion in denying the mistrial motion.

9

See id. at 654-655 (2) (trial court did not abuse its discretion in denying defendant’s

motion for mistrial based on witness testimony that defendant had been incarcerated

in another state for an unstated crime).

(c) Photographs. Allen also argues that the trial court should have granted a

mistrial based on the photographs showing him in prison. However, Allen only

objected to their admission on Rule 403 grounds. Because he did not move for a

mistrial at the time of their admission, this claim is not preserved for review. See

Goins v. State, 310 Ga. 199, 206 (5) (850 SE2d 68) (2020). 

Judgment affirmed. Doyle, P. J., and Reese, J., concur.

9

“Failure to give an unrequested curative instruction does not create reversible

error.” (Citation and punctuation omitted.) Swims v. State, 307 Ga. 651, 655 (2) (838

SE2d 751) (2020).

21