FIRST DIVISION

BARNES, P. J.,

LAND and WATKINS, 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

December 8, 2023

In the Court of Appeals of Georgia

A23A1629. BREWTON v. THE STATE. 

LAND, Judge.

On appeal from his conviction after a jury trial for aggravated assault and

reckless conduct arising from a shooting on the Flint River, Samuel Brewton III

argues that the evidence was insufficient, that the trial court erred when it admitted

evidence of prior acts, and that trial counsel was ineffective. We find no error and

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 omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)

(2004). We neither weigh the evidence nor judge the credibility of witnesses, but

determine only whether, after viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.

S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

Thus viewed in favor of the verdict, the record showsthat in the late afternoon

of April 11, 2020, a grandfather and his daughter were fishing from a canoe on a

section of the Flint River known as Yellow Jacket Shoals, with the daughter’s

husband, her 17-year-old son, the grandfather’s son, and a four-year-old grandson

traveling near them in kayaks. As the family continued to fish in front of the cabin

property owned by Brewton’s family, the husband noticed that Brewton, whom he

knew, wasstanding on the bank firing a series of weapons “away from the river,” and

that a couple was also present there. As the grandfather and his daughter were

releasing a fish they had caught, Brewton fired a loud shot that hit the water 5 or 6

feet from both the daughter and her husband, splashed water into the daughter’sface,

and sank out of sight. As the daughter screamed in fear, the husband looked back at

the Brewton property, where he saw Brewton turning and walking away from the

river “like he was in a hurry,” holding a rifle. The son, who was in a kayak with his

four-year-old child, testified that he saw Brewton, whom he knew, in front of the

cabin and that he was fishing outside of his kayak when he heard an “extremely loud

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gunshot ring out acrossthe river.” The son testified that thisrifle shot was “different”

from the earlier discharges, “in [his] direction,” and “terrifying.” 

In a phone call that evening, the sister-in-law of the area’s game warden called

Felix Coker, who had been drinking with Brewton on the property that afternoon.

When the woman asked Coker whether he and Brewton had been shooting at people

that afternoon, Coker responded, “[O]nly if they’re fishing.” 

Brewton was arrested and, after being advised of his rights, told the

investigator that he had been “shooting at turtles in the river on a rock.” He also

stated, however, that “they’re stealing his fish,” that “the fish belong[ed] to him

because the fish were on his property,”1

and that “they’re ganging up on me.”

Brewton was charged with aggravated assault on the grandfather, the daughter, the

1 See, e.g., Parker v. Durham, 258 Ga. 140, 141 (365 SE2d 411) (1988) (a

riparian owner whose chain of title is traceable to a grant from the State before 1863,

when the predecessor to OCGA § 44-8-5 was adopted, has “sole and exclusive” rights

of fishery extending to “the thread of the stream”), superseded by OCGA § 44-8-5 (c)

(Laws 2023, Act 92, § 1, effective July 1, 2023) (including the General Assembly’s

findings that “the state procured ownership of all navigable stream beds within its

jurisdiction upon statehood and, as sovereign, is trustee of its peoples’ rights to use

and enjoy all navigable streams capable of use for fishing, hunting, passage,

navigation, commerce, and transportation, pursuant to the common law public trust

doctrine”; that “[t]he state continues to hold title to all such stream beds, except

where title in a private party originates from a valid Crown or state grant before

1863”; and that “the public retained the aforementioned rights under such doctrine

even where private title to beds originates from a valid grant”). 

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daughter’s husband, and that couple’s son, as well as reckless conduct as to the son

and the younger grandson. 

In April 2021, the State filed a notice of its intent to present evidence of other

acts under OCGA § 24-4-404 (b). This evidence included (a) a February 2020

Facebook video in which Brewton and Coker expressed their intent to track down

deer poachers in the area, with Brewton stating that he was always armed with a

Ruger military rifle, and showing him discharging a clip from the weapon into the

woods; (b) a February 2017 phone call in which Brewton stated that he was in fear

of his life, had seen people across the pond from his house, and had shot at them; (c)

a 2004 misdemeanor guilty plea for simple assault, trespass and reckless conduct

arising from a December 2002 incident during which Brewton had fired 20 shotsinto

a neighbor’s stereo in the neighbor’s presence; (d) a January 2004 guilty plea to

simple assault and signing a false name arising from Brewton’s attempt to run over

deputies investigating a burn on his and the same neighbor’s property, after which

Brewton advanced on the deputies with a rifle in his hand; and (e) a 2003

conversation in which Brewton told the grandfather victim, who had been a customer

at the pharmacy where Brewton worked, that he was upset enough about trespassers

or poachers on his property to discharge a large magazine of ammunition in the

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direction of a flashlight he saw in the woods around his house. The State argued at

the hearing on the subject that all five incidents were relevant to prove identity,

intent, and absence of mistake. Although the trial court excluded some proffered

evidence as not probative, the trial court admitted the evidence outlined above as

relevant and more probative than unduly prejudicial to prove intent.

After a jury found him guilty on all counts, Brewton was convicted, sentenced

to 40 years with 10 to serve and banished from the Griffin Judicial Circuit (including

Upson County) for the duration of his sentence. His motion for new trial was denied. 

1. Although Brewton argues that the evidence was insufficient, it was for the

jury to determine whether he fired the rifle shot with the requisite intent of putting the

firstfour victimsin reasonable apprehension of suffering an immediate violent injury.

See OCGA §§ 16-5-20 (a) (1), 16-5-21 (a) (defining assault, and aggravated assault

as assault with a deadly weapon). Likewise, it was for the jury to decide whether

Brewton endangered the fifth and sixth victims by “consciously disregarding a

substantial and unjustifiable risk” that shooting towards them would endanger their

safety, constituting “a gross deviation from the standard of care which a reasonable

person would exercise in the situation.” OCGA § 16-5-60 (b). The evidence outlined

above wassufficient to sustain Brewton’s conviction for both aggravated assault and

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reckless conduct. See Craft v. State, 309 Ga. App. 698, 700-701 (2) (710 SE2d 891)

(2011) (evidence that a bullet came through an apartment resident’s window while

she was sitting on the floor, where she stayed for ten minutes afterward, authorized

a conviction for aggravated assault); Bowers v. State, 177 Ga. App. 36, 38 (2) (338

SE2d 457) (1985) (evidence authorized a charge on reckless conduct as a lesser

included offense of aggravated assault when a jury could have believed either that the

defendant intended to shoot the victim on a sailboat anchored in a river or that

defendant was not aware of the presence of the victim but was merely conducting

target practice); Jackson, supra. 

2. Brewton also argues that the trial court erred when it authorized the

admission of the five instances of other-acts evidence concerning his penchant for

brandishing and/or discharging firearms during perceived or actual disputes with

neighbors, law enforcement officers, and others. We disagree. 

Under OCGA § 24-4-404 (b) (“Rule 404 (b)”), 

extrinsic act evidence may be admitted if a three-part test is met: [a] the

evidence is relevant to an issue in the case other than the defendant’s

character, [b] the probative value is not substantially outweighed by the

danger of unfair prejudice as required by Rule 403, and [c] there is

sufficient proof for a jury to find by a preponderance of the evidence

that the defendant committed the prior act.

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(Citation and footnote omitted; emphasis supplied.) McWilliams v. State, 304 Ga.

502, 509 (3) (820 SE2d 33) (2018); see also Jones v. State, 301 Ga. 544, 545 (802

SE2d 234) (2017), and Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016). 

“Relevant evidence” is defined as that evidence which has “any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” OCGA

§ 24-4-401. OCGA § 24-4-403 (“Rule 403”), which governs the second required

showing, provides that “[r]elevant evidence may be excluded if its probative value

issubstantially 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.” This statute “is designed to exclude matter of

scant or cumulative probative force, dragged in by the heels for the sake of its

prejudicial effect.” (Citation and punctuation omitted.) Moon v. State, 312 Ga. 31, 51

(3) (a) (860 SE2d 519) (2021). “The third part of the test is a preliminary question of

fact for the trial court. Other-acts evidence may be admitted if the court concludes

that the evidence is sufficient for the jury to find by a preponderance of the evidence

that the other act was committed.” (Citation and punctuation omitted.) Id. “When

reviewing a trial court’s decision on the admissibility of extrinsic acts evidence, a

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reviewing court will not disturb the decision unless there is a clear abuse of

discretion.” McWilliams, 304 Ga. at 509 (3). 

The central issue in the case was Brewton’s intent in firing the rifle shot that

terrified these victims, which he placed at issue when he pled not guilty. Hood v.

State, 309 Ga. 493, 499-500 (2) (847 SE2d 172) (2020). 

[T]he extent to which evidence tends to make the existence of a fact

more or less probable depends significantly on the quality of the

evidence and the strength of its logical connection to the fact for which

it is offered. Probative value also depends on the marginal worth of the

evidence – how much it adds, in other words, to the other proof

available to establish the fact for which it is offered. The stronger the

other proof, the lessthe marginal value of the evidence in question. And

probative value depends as well upon the need for the evidence. When

the factfor which the evidence is offered is undisputed or notreasonably

susceptible of dispute, the less the probative value of the evidence.

(Citation and punctuation omitted; emphasis supplied.) McWilliams, 304 Ga. at 509-

510 (3). 

Here, more than one victimtestified that they did not know whether the shooter

knew they were on the river. Under these circumstances, which required the State to

prove Brewton’s intent to assault or endanger them, “the marginal value of the

extrinsic acts evidence was great in comparison to the other available evidence,”

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which did not include any testimony from Brewton himself. McWilliams, 304 Ga. at

510 (3). Each of the other acts introduced by the State also shed light on Brewton’s

tendency, consistent over many years, to perceive the presence of other people on or

near his land or his portion of the river, including law enforcement officers, as a

serious or even mortal threat, and to respond to such threats without deliberation and

with violence. There was no abuse of discretion here in admitting evidence of these

acts as (a) tending to prove his intent to put these victims in reasonable fear or to

disregard their safety, (b) not unduly prejudicial in light of their probative value on

that issue, and (c) committed by Brewton rather than any other person. See Moon,

supra, 312 Ga. at 53 (3) (c) (i) (prior aggravated assault convictions were admissible

to prove defendant’s intent to violently injure victims by firing a gun at them while

they were in their car). 

3. Brewton also argues that trial counsel was ineffective in failing to object to

(a) testimony concerning “folklore,” “legend” or “rumors” about the Yellow Jacket

Shoals area and (b) argument and questions concerning Brewton’s reputation for

harassing boaters there. We disagree. 

To show ineffective assistance of counsel, a defendant must show that

counsel’s performance was deficient and that the deficient performance prejudiced

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the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing

Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). As to

deficient performance, “every effort must be made to eliminate the distorting effects

of hindsight,” and the trial court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” (Citation

and punctuation omitted.) White v. State, 265 Ga. 22, 23 (2) (453 SE2d 6) (1995). As

to prejudice, a defendant need only show “a reasonable probability of a different

outcome” due to trial counsel’s deficient performance. (Punctuation and footnote

omitted.) Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008). Finally, the

question of ineffectiveness is a mixed one of both law and fact: “we accept the trial

court’s factual findings and credibility determinations unless clearly erroneous, but

we independently apply the legal principles to the facts.” (Footnote omitted.) Suggs

v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

(a) The record shows that more than one witness testified about being shot at

as they floated past the Brewton property. When other witnesses testified about the

“legend” of violence at Yellow Jacket Shoals, Brewton’s trial counsel objected on

hearsay grounds, and these objections were sustained. Trial counsel also testified at

the hearing on the motion for new trial that he elected to “lean into” the State’s

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narrative that the reports of shootings were fictitious by introducing testimony that

law enforcement had never been called there concerning a shooting. Counsel also

noted that repeated objections to hearsay would have only drawn unwarranted

attention to it. Because this strategy was not unreasonable, we cannot say that trial

counsel’s performance on thisissue wasinadequate. See Walker v. State, 308 Ga. 33,

39 (3) (a) (838 SE2d 792) (2020) (trial counsel’s decision to forgo objections so as

not to draw further attention to witnesses’ statements was a reasonable strategy). 

(b) (i) The record also shows that although the State improperly suggested in

opening statement that Brewton had a “propensity” for shooting at boaters on the

river, the prosecutor immediately corrected herself to say that Brewton “will

occasionally shoot a gun in the air to scare [boaters] off.” See Kirby v. State, 304 Ga.

472, 487 (4) (b) (819 SE2d 468) (2018) (evidence of a defendant’s “inclination”

toward violence “is a classic improper propensity argument”). Trial counsel also

testified that although he could not recall why he did not object, the prosecutor

“backed away from where she was going with the propensity and went in a different

direction.” In light of the State’s retreat from this suggestion as well as the trial

court’s instruction that opening statements were not evidence, we cannot secondguess the trial court’s determination that Brewton suffered no prejudice in this

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respect. See Cruz v. State, 305 Ga. App. 805, 812 (3) (e) (700 SE2d 631) (2010)

(affirming denial of an ineffective assistance claimwhen trial counsel could notrecall

the reason for a trial decision but when the record supported the trial court’s finding

that the decision was reasonable trial strategy). 

(ii) The State concedes on appeal that a prosecutor’s question about Brewton’s

“reputation with the community . . . on people fishing in front of his cabin” was

improper because Brewton did not introduce this topic himself. See OCGA §§ 24-4-

404 (a) (1), 24-4-405 (a). The response to the improper question, however, was that

the witness had “always known that they were very protective. You could not fish

there.” (Emphasis supplied.) Even in the absence of an objection from counsel,

Brewton cannot show that he was prejudiced by the admission of evidence as to the

reputation of the location or its owners as protective of fishing rights because such

evidence was cumulative of abundant and direct evidence of Brewton’s own strong

feelings on the subject. See Sawyer v. State, 308 Ga. 375, 383-384 (2) (b) (839 SE2d

582) (2020) (no prejudice shown from admission of evidence as to defendant’s

propensity for violence when it was cumulative of other evidence on the same

subject). 

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Finally, and given the quantity and quality of evidence against Brewton, we

cannot say that the cumulative effect of trial counsel’s few arguable deficiencies, as

discussed above, deprived Brewton of a fair trial. See Huff v. State, 315 Ga. 558, 567-

568 (6) (883 SE2d 773) (2023)(a cumulative-effect assertion of ineffective assistance

failed where a defendant had not demonstrated any significant prejudicial effect from

assumed trial court error and counsel’s deficient performance in failing to object to

the “gangster style” of the crime at issue). 

For all these reasons, the trial court did not err when it denied Brewton’s

motion for new trial. 

Judgment affirmed. Barnes, P. J., and Watkins, J., concur.

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