FIFTH DIVISION

RICKMAN, C. J.,

MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

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

March 2, 2022

In the Court of Appeals of Georgia

A21A1655. WRIGHT v. THE STATE.

PHIPPS, Senior Appellate Judge.

A jury found Jamie Courtney Wright guilty of two controlled substance

offenses and two firearm offenses. Wright appeals from the denial of his motion for

a new trial, arguing that: (i) the trial court erred when it admitted (a) statements he

made while detained by law enforcement officers without the benefit of Miranda

1

warnings and (b) evidence concerning prior convictions entered after he pled guilty

to controlled substance and firearm offenses; and (ii) the evidence was insufficient

to support his convictions. For the reasons that follow, while we reject Wright’s

challenges to the admission of statements he made to officers and to the sufficiency

1 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
of the evidence, we agree that the trial court improperly admitted the facts underlying

Wright’s prior guilty pleas, and we reverse his present convictions on that basis.

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

favorable to the verdict, and the defendant no longer enjoys a presumption of

innocence. Krauss v. State, 263 Ga. App. 488, 488 (1) (588 SE2d 239) (2003). So

viewed, the evidence shows that, in November 2015, a narcotics investigator and

other law enforcement officers arrived at a home in Richmond County in search of

a fugitive. The homeowner let the officers in and gave consent to search the home.

In addition to the homeowner, Wright and another person were in the home at the

time. After Wright emerged from a bedroom, the investigator asked him to wait with

the other occupants on a screened-in porch. Another officer stood in the yard, “a few

feet from the steps leading onto the porch” at that time. 

Upon entering the room Wright had vacated, which was now unoccupied, the

investigator found a black book bag behind the door. On top of the open book bag’s

other contents lay a one-gallon plastic bag with more than 47 grams of a green, leafy

substance that the investigator initially believed was marijuana but later learned

contained a synthetic cannabinoid known as “spice.” The investigator then walked

out to the porch, where all three occupants were waiting, and asked “who did the bag

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belong to.” At that time, the investigator did not describe the bag he was asking

about. Wright, the only one to respond, said that the bag was his. To confirm which

bag he was asking about, the investigator retrieved the black book bag and asked

Wright if it was his. The record contains no indication that any of the bag’s contents

were visible to Wright or the others on the porch at that time. Wright responded,

“Yeah, that’s my bag and everything in it,” and he added that the others on the porch

“didn’t have anything to do with it.” 

After obtaining Wright’s consent to search the bag, the investigator found a

handgun, a digital scale, a rolled-up dollar bill with oxycodone powder on it, and 38

smaller bags of “spice.” During a search incident to Wright’s ensuing arrest, officers

also found $605 in small denominations. No personal-use drug paraphernalia — such

as rolling papers or smoking devices — was found in the black book bag or on

Wright’s person. The investigator testified at trial as an expert in narcotics

investigation that everything he found was consistent with distribution and not

personal use. 

Wright testified that he had been dropped off at the home where he was

arrested approximately one hour before law enforcement arrived. He claimed that the

only bag he had with him at that time was a small red and black bag that contained

3
diapers and other items for his child, and that neither the black book bag at issue here

— which he knew nothing about — nor its contents were his. Wright further testified

that he had gone into the room where the black book bag was found to look out of a

window when the officers arrived. According to Wright, he never told officers that

he owned the black book bag but instead simply claimed ownership of the red and

black bag he brought with him. 

At the conclusion of the first part of Wright’s bifurcated trial, the jury found

him guilty of possession with intent to distribute a Schedule I controlled substance

(“spice”), possession of a Schedule II controlled substance (oxycodone), and

possession of a firearm during the commission of a crime. During the second part of

the bifurcated trial, the trial court admitted Wright’s 2011 convictions and sentences

for possession with intent to distribute marijuana and possession of a firearm during

the commission of a crime, following which the jury found him guilty of possession

of a firearm by a convicted felon.

2

2 As discussed in more detail below in Division 2, the trial court admitted

evidence of the facts underlying the prior convictions during the first part of the

bifurcated trial. The convictions and sentences themselves, however, were admitted

only during the second part of the bifurcated trial. 

4
1. On appeal, Wright challenges the denial of his pre-trial motion to suppress

the investigator’s testimony that Wright made two statements claiming ownership of

the black book bag and its contents. He contends that his statements were

inadmissible asthe products of a custodial interrogation that occurred before officers

advised him of his Miranda rights. We disagree.3

In reviewing a trial court’s decision on a motion to suppress, we accept the trial

court’s rulings on disputed facts unless clearly erroneous, but review the application

of the law to the facts de novo. State v. Hammond, 313 Ga. App. 882, 884 (723 SE2d

89) (2012). We construe the evidence in the light most favorable to the trial court’s

decision. State v. Holler, 224 Ga. App. 66, 71 (2) (b) (479 SE2d 780) (1996). “[I]n

conducting our review, we may consider trial testimony in addition to the testimony

submitted during the motion to suppress hearing.” Thompson v. State, 313 Ga. App.

844, 846 (1) (723 SE2d 85) (2012) (citation and punctuation omitted).

The Fifth Amendment bars the admission of an accused’s statements made

during a custodial interrogation, unless he first is advised of and voluntarily waives

3 Although we reverse Wright’s convictions in Division 2, we nevertheless

address this claim because it involves issues likely to recur on retrial. See Allaben v.

State, 299 Ga. 253, 257 (3) (787 SE2d 711) (2016); Hines v. State, 353 Ga. App. 710,

714 (3) (839 SE2d 208) (2020); see also Divisions 2 and 3, below.

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his Miranda rights. Gardner v. State, 261 Ga. App. 10, 11 (582 SE2d 7) (2003); see

Miranda v. Arizona, 384 U. S. 436, 444-445, 478-479 (III) (86 SCt 1602, 16 LE2d

694) (1966). “The issue of whether a person is in custody for Miranda purposes is a

mixed question of law and fact, and the trial court’s determination will not be

disturbed unless it is clearly erroneous.” Pugh v. State, 323 Ga. App. 31, 36 (2) (747

SE2d 101) (2013) (citation and punctuation omitted).

The test to determine whether a detainee is in custody for Miranda

purposesis whether a reasonable person in the detainee’s position would

have thought the detention would not be temporary. The safeguards

prescribed by Miranda become applicable only after a detainee’s

freedom of action is curtailed to a degree associated with formal arrest.

Owens v. State, 308 Ga. App. 374, 378 (2) (707 SE2d 584) (2011) (citation and

punctuation omitted);see Miranda, 384 U. S. at 477 (III) (explaining that protections

of that decision apply “when the individual is first subjected to police interrogation

while in custody at the station or otherwise deprived of his freedom of action in any

significant way”).

When making this determination,

a court must examine all of the circumstances surrounding the

interrogation . . . . Whether a suspect isin custody does not depend upon

the subjective views harbored by either the interrogating officers or the

6
person being questioned. Instead, the only relevant inquiry is how a

reasonable person in the suspect’s position would have understood the

situation. A reasonable person is one neither guilty of criminal conduct

and thus overly apprehensive nor insensitive to the seriousness of the

circumstances.

Chavez-Ortega v. State, 331 Ga. App. 500, 502-503 (1) (771 SE2d 179) (2015)

(citations and punctuation omitted); accord Pugh, 323 Ga. App. at 36 (2) (“Unless a

reasonable person in the suspect’s situation would perceive that he was in custody,

Miranda warnings are not necessary.”) (citation and punctuation omitted). Thus, “a

custodial situation does not arise even if an officer believes he has probable cause to

arrest a defendant, where the officer takes no overt step to communicate that belief.”

Pugh, 323 Ga. App. at 37 (2) (citation and punctuation omitted); see Arce v. State,

245 Ga. App. 466, 466-467 (538 SE2d 128) (2000) (probable cause for an arrest,

standing alone, does not convert a temporary detention into a formal arrest),

disapproved in part on other grounds by State v. Turnquest, 305 Ga. 758, 775 & n. 15

(827 SE2d 865) (2019).

“[A]s a general rule, one who is the subject of a general on-the-scene

investigation is not in custody though he may not be free to leave during the

investigation.” State v. Lucas, 265 Ga. App. 242, 244 (2) (593 SE2d 707) (2004)

7
(citation and punctuation omitted); see Miranda, 384 U. S. at 477-478 (III) (the

requirements of Miranda do not apply to “[g]eneral on-the-scene questioning as to

facts surrounding a crime or other general questioning of citizens in the fact-finding

process” because “[i]n such situations the compelling atmosphere inherent in the

process of in-custody interrogation is not necessarily present”). In that situation,

officers may make inquiries “solely to determine whether there currently is any

danger to them or other persons” and “may even temporarily detain anyone who tries

to leave before the preliminary investigation is completed.” State v. Wintker, 223 Ga.

App. 65, 67 (476 SE2d 835) (1996). A detention accompanied by such inquiries does

not trigger Miranda’s requirements “unless the questioning is aimed at obtaining

information to establish a suspect’s guilt.”4Id. (citations and punctuation omitted);

accord Thompson, 313 Ga. App. at 847-848 (1); Lucas, 265 Ga. App. at 244 (2); see

Futch v. State, 145 Ga. App. 485, 486, 488-489 (3) (243 SE2d 621) (1978) (a

question regarding who owned a closed trunk suspected of containing marijuana,

made during an initial on-the-scene investigation involving two suspects at a motel

before any arrest, did not require Miranda warnings). Thus, Miranda warnings are

not required where a defendant who is not in custody “responds to an officer’s initial

4

 We address this proposition more fully in Division 1 (c), below.

8
inquiry at an on-the-scene investigation that had not become accusatory.” Taylor v.

State, 235 Ga. App. 323, 326 (2) (509 SE2d 388) (1998) (citation and punctuation

omitted); see id. at 324-327 (1)-(2) (concluding that Miranda warnings were not

required when a detective informed the defendant, while standing outside of a store

where her purse had been found by a store clerk, “that he was investigating the

marijuana found in her purse,” because the detective’s statements did not constitute

interrogation “aimed at establishing her guilt,” but rather were focused on assessing

the general nature of the situation).

Here, the circumstances under which Wright admitted ownership of the black

book bag and its contents do not rise to the level of a custodial interrogation for

purposes of the Miranda requirements. Three primary factorsinformour ruling in this

regard.

(a) First, Wright has identified no evidence that officers told any of the

occupants of the home that they were under arrest or explicitly forbade them to leave

the premises.

5 Of course, a reasonable person in the occupants’ shoes likely would

5 Before trial, the trial court held a hearing pursuant to Jackson v. Denno, 378

U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964), to determine the voluntariness of

Wright’s allegedly custodial incriminating statements. See Clark v. State, 309 Ga.

App. 749, 751 (3) (711 SE2d 339) (2011). During that hearing, the investigator

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understand the investigator’srequest to wait on the porch asindicating that they were

expected to remain there while officers searched the home for the fugitive they

sought. No reasonable person, however, would perceive such a detention as anything

other than temporary. See Owens, 308 Ga. App. at 378-379 (2) (defendant was not in

custody for Miranda purposes when he was detained for 20 minutes, during which

time he was neither handcuffed nor otherwise restrained); Arce, 245 Ga. App. at 466-

467 (defendant was not in custody while submitting to field sobriety tests, as there

was no evidence that the officer communicated anything other than the fact that he

was conducting a brief investigatory stop, notwithstanding the existence of probable

cause to arrest the defendant); see also generally Chavez-Ortega, 331 Ga. App. at

502-503 (1). And even accepting at face value Wright’s repeated assertions that he

and the others on the porch were “guarded” by one or more officers “standing watch”

over them, the trial court was entitled to find that the officers’ actions in that regard

were incident to the occupants’temporary detention while officers assessed the scene.

See Lucas, 265 Ga. App. at 244 (2); Wintker, 223 Ga. App. at 67.

testified that Wright was free to move around the porch before his arrest and that the

investigator did not coerce Wright into making a statement with any kind of threat or

action. 

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(b) Second, viewing the evidence in the light most favorable to the trial court’s

ruling, the investigator’s initial question regarding ownership of “the bag” — which

the investigator did not otherwise identify at that time — was directed to all three

occupants then on the porch, rather than to Wright individually. Such a general

request for information to all persons present in a residence (or its curtilage) does not

bear the hallmarks of a “custodial interrogation” or questioning aimed at establishing

a particular suspect’s guilt, butrather more closely resembles a “general on-the-scene

investigation.” See Lucas, 265 Ga. App. at 244 (2); Wintker, 223 Ga. App. at 67;

Futch, 145 Ga. App. at 486, 488-489 (3).

(c) Finally, the investigator’s second question, in which he showed the black

book bag to Wright and asked him to confirm that it was his — while all three

occupants remained free to move about the porch — did not change the nature of

Wright’s detention. Nevertheless, Wright contends that Miranda warnings were

required because the investigator’s second question confronted Wright with the

evidence against him and thus was aimed at establishing his guilt of a drug offense.

However, Wright has not cited, and research has not revealed, any binding precedent

expressly holding that the subjectively accusatory or incriminating nature of an

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officer’s question (from the officer’s point of view)6

during an initial, on-the-scene

investigation — standing alone — issufficient to transform a non-custodialsituation

into a “custodial interrogation” for purposes of the Miranda requirements. We

address in turn each of the decisions cited by Wright on this issue.

In Lucas, 265 Ga. App. at 243 (2), the defendant (Lucas) gave deputy sheriffs

— who sought to serve a warrant on a third party — consent to search his home for

the third party while Lucas and another man remained seated in the living area,

watched over by one deputy. During the search, another deputy found marijuana and

rolling papers on a cookie tray in a bedroom. Id. That deputy confronted the two men

with the tray and asked to whom it belonged; Lucas said that it was his and was

arrested. Id. The trial court granted Lucas’s motion to suppress his statement on the

ground that it wasthe result of a custodial interrogation conducted without the benefit

of Miranda warnings. Id. at 242.

The State appealed, contending that Lucas was not in custody for Miranda

purposes when he claimed ownership of the tray. Lucas, 265 Ga. App. at 242, 243 (2).

This Court affirmed, highlighting that “an objective standard is used to determine

6 Asfurther explained below, on the facts of this case, the investigator’ssecond

question was not objectively accusatory, insofar as the incriminating nature of the

question required knowledge that suspected contraband was found in or on the bag.

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custody,” under which “the proper inquiry is whether a reasonable person in Lucas’s

place would have believed that his freedom was curtailed in a significant way when

the deputy asked who owned the marijuana,” and concluding that the trial court was

entitled to find that standard had been satisfied. Id. at 244 (2). When read as a whole,

we construe Lucas as standing for the proposition that a custodial interrogation may

begin when officers confront a temporarily detained person with evidence that, on its

face, would lead a reasonable person to believe that his detention no longer would be

temporary. Accord Owens, 308 Ga. App. at 378 (2); see also Rhode Island v. Innis,

446 U. S. 291, 300-301 (II) (A) (100 SCt 1682, 64 LE2d 297) (1980) (the inquiry as

to whether in-custody questioning is “reasonably likely to elicit an incriminating

response” “focuses primarily upon the perceptions of the suspect, rather than the

intent of the police”). Here, by way of contrast, the record contains no indication that

Wright was expressly confronted with contraband or any other objectively obvious

wrongdoing when merely asked to confirm his ownership of the black book bag.

Thus, unlike the situation in Lucas, a reasonable person in Wright’s place “neither

guilty of criminal conduct” nor “insensitive to the seriousness of the circumstances,”

Chavez-Ortega, 331 Ga. App. at 503 (1), would have no reason to believe that his

freedom was curtailed any more than it had been when the first question about “the

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bag” was asked. See Owens, 308 Ga. App. 378 (2); see also Innis, 446 U. S. at 300-

301 (II) (A); Chavez-Ortega, 331 Ga. App. at 503 (1) (“Whether a suspect is in

custody does not depend upon the subjective views harbored by either the

interrogating officers or the person being questioned.”) (citation and punctuation

omitted).

In Thompson, 313 Ga. App. at 845-846, 847-848 (1), we held that an officer’s

question as to “where [Thompson, the defendant] put the vacuums” — made while

Thompson was being detained and after he had been identified as a suspect in the

theft of vacuum cleaners — “was clearly aimed at establishing his guilt” and thus

should have been preceded by Miranda warnings. Notably, however, before he was

questioned, Thompson had been found to be in possession of a crack pipe and push

rods (which had then been placed on top of a patrol car), and he had admitted to an

officer that he recently bought and used crack cocaine. Id. at 847 (1). We concluded

that, “[u]nder these circumstances, after producing drug paraphernalia, admitting to

owning same, and admitting to recently buying and using drugs, a reasonable person

would certainly perceive himself to be in police custody.” Id. No such circumstances

are present here.

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In Gardner, 261 Ga. App. at 11, it was undisputed that the defendant was in

custody, and the only question on appeal thus was whether the statement sought to

be suppressed “was made in direct response to police interrogation or its functional

equivalent.” Gardner thus has no application in this case.

Finally, in United States v. Luna-Encinas, 603 F3d 876, 877-878, 879 (I), 882-

883 (II) (11th Cir. 2010), which involved a prosecution for possession of a firearm

by an alien unlawfully in the United States, the federal appellate court affirmed the

denial of the defendant’s motion to suppress his answer to an officer’s question about

where a gun waslocated in his apartment. The court(a) highlighted that the defendant

at that time had been “detained for a relatively brief period in a neutral, outdoor

location” while officers searched the area for a third party and (b) concluded that “a

reasonable person in his position would not have understood his freedom of action

to have been curtailed to a degree associated with formal arrest” for purposes of the

Miranda requirements. Id. at 882 (II) (citation and punctuation omitted). LunaEncinas therefore also does not aid Wright’s argument, but rather supports the trial

court’s ruling here.7

7 A few decisions not cited by Wright, which initially may be read to support

his claim on this issue, do not reach so far on closer inspection. For example, in

Aldridge v. State, 247 Ga. 142, 144-145 (2) (274 SE2d 525) (1980), the Supreme

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All in all, the investigator’s questions about the black book bag in this case did

not bear the hallmarks of a “custodial interrogation,” primarily because (a) Wright’s

Court of Georgia stated that, “[s]o long as the interrogation is not aimed at obtaining

information to establish a suspect’s guilt but is instead aimed at determining the

nature of the situation upon the arrival of the policeman on the scene, some initial

inquiry may, under the circumstances, be permissible before Miranda warnings are

given.” That observation, however, relied on the Court’s prior decision in Shy v.

State, 234 Ga. 816, 819-823 (I) (218 SE2d 599) (1975), which, in turn, had employed

a balancing test that no longer is used in determining custody for Miranda purposes.

See State v. Folsom, 285 Ga. 11, 13 (1) (673 SE2d 210) (2009). Regardless, the

Aldridge Court found that the questioning at issue — in which an officer merely

asked the defendant “what happened” after finding the defendant and his severely

injured wife in a room in their home in which a rifle also was present — was not

accusatory. 247 Ga. at 145 (2). As a result, the Court had no occasion to hold — and

therefore did not hold — that the answer to a question subjectively aimed at

establishing a suspect’s guilt made during an initial, on-the-scene investigation, but

before the suspect’s freedom of action has been curtailed to a degree associated with

formal arrest, must be suppressed in an ensuing prosecution if not preceded by

Miranda warnings. See id. at 144-145 (2). Similarly, in Lolley v. State, 259 Ga. 605,

606-607 (2) (b) (385 SE2d 285) (1989), the Court quoted the above passage from

Aldridge. Notably, however, the Lolley Court found no Miranda violation, despite

assuming that the suspect was “in custody” when he made the challenged statements.

Id. at 606 (2) (a). And as in Aldridge, the Lolley Court did not hold either (a) that a

question aimed at establishing a suspect’s guilt — without more — may transform a

non-custodial interrogation into a custodial interrogation or (b) that the answer to

such a question made during a non-custodial interrogation must be suppressed if not

preceded by Miranda warnings. See id. at 606-607 (2) (a)-(b). Likewise, in Taylor,

235 Ga. App. at 326 (2), and Wintker, 223 Ga. App. at 67, each of which contain

language similar to the above passage from Aldridge, this Court did not hold either

(a) that an accusatory question by itself may transformnon-custodial questioning into

custodial questioning or (b) that responses to such questioning made during a noncustodial interrogation must be suppressed if not preceded by Miranda warnings.

16
freedom of action had not been “curtailed to a degree associated with formal arrest,”

Owens, 308 Ga. App. at 378 (2) (citation and punctuation omitted), and (b) the

questions did not expressly refer to contraband or otherwise implicate a crime or other

wrongdoing and thus lacked an “accusatory nature,” see Thompson, 313 Ga. App. at

848 (1). See also generally Lucas, 265 Ga. App. at 243-244 (2); Wintker, 223 Ga.

App. at 68-69 (concluding that Miranda was triggered when the teenage defendant

was locked in the back seat of a patrol car — with a handcuffed friend who had been

arrested — and asked whether she owned a suitcase containing drugs that officers

found in a car in which she had been a passenger and on which a drug dog had

alerted, because, under the totality of the circumstances, there was a significant

“compulsive aspect” to the “isolated and police-dominated” interrogation) (citation

and punctuation omitted).

Naturally, it is apparent that the investigator in this case, having found

suspected drugs on top of the black book bag’s other contents, subjectively may have

perceived his second question as being aimed at establishing Wright’s guilt and that

Wright — assuming that he knew of the book bag’s contents — subjectively may

have perceived that question in the same way. Those considerations, however, play

no part in our analysis, which asks only what a reasonable person neither guilty of

17
criminal conduct nor insensitive to the seriousness of the circumstances would

perceive. See Chavez-Ortega, 331 Ga. App. at 502-503 (1); see also Innis, 446 U. S.

at 300-301 (II) (A). And under that test, there was no objectively accusatory,

“compulsive,” or “isolated and police-dominated” aspect to the investigator’s

questions. See Wintker, 223 Ga. App. at 68-69;see alsoChavez-Ortega, 331 Ga. App.

at 503 (1); Taylor, 235 Ga. App. at 326 (2). We therefore affirm the denial of

Wright’s motion to suppress.

2. Wright further contends that the trial court erred when, during the first part

of his bifurcated trial, it admitted evidence of the facts underlying his 2011

convictions for possession with intent to distribute marijuana and possession of a

firearm during the commission of a crime. The trial court admitted this evidence for

the limited purposes of establishing Wright’s knowledge, intent, and lack of mistake

and gave the jury limiting instructions to that effect. We agree with Wright that this

evidence was improperly admitted.

We review a trial court’s decision to admit other acts evidence for abuse of

discretion. See State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d 170) (2015); accord

Parks v. State, 300 Ga. 303, 305-306 (2) (794 SE2d 623) (2016). The statute

18
primarily applicable to such evidence — OCGA § 24-4-404 (b) (“Rule 404 (b)”) —

provides, in relevant part:

Evidence 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 ofmotive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. . . .

Rule 404 (b) “is, on its face, an evidentiary rule of inclusion.” Jones, 297 Ga. at 159

(2). Nevertheless, relevant evidence offered for a proper purpose under Rule 404 (b)

may be excluded “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 (“Rule 403”); Jones, 297 Ga. at 158 (1).

Thus, for evidence to be admissible under these provisions,

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; (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 Rule 403; and (3) there is sufficient proof so that the

jury could find that the defendant committed the act in question.

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Jones, 297 Ga. at 158-159 (1) (citation omitted). To address the first part of this test,

we look to OCGA § 24-4-401,which defines “relevant evidence” as “evidence having

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.” See Heard v. State, 309 Ga. 76, 84-85 (3) (b) (844 SE2d 791) (2020).

“This is a binary question — evidence is either relevant or it is not.” Id. at 85 (3) (b).

The second prong of the Jones test — application of Rule 403 — requires a

trial court to “undertake in each case a considered evaluation of the proffered

justification for the admission of such evidence and make an independent

determination of whether the probative value of the evidence is substantially

outweighed by” any of the Rule 403 factors. Jones, 297 Ga. at 163 (3). “In weighing

the probative value of other acts evidence, a court may consider a number of factors,

including (1) prosecutorial need, (2) overall similarity of the other acts and the acts

charged, and (3) the temporal remoteness of the other acts.” Thompson v. State, 308

Ga. 854, 859 (2) (843 SE2d 794) (2020).

“[T]here is no mechanical solution for this balancing test.” Jones, 297 Ga. at

163 (3). Rather, “[a] Rule 403 analysis must be done on a case-by-case basis and

requires a common sense assessment of all the circumstances surrounding the

20
extrinsic act and the charged offense.” Green v. State, 352 Ga. App. 284, 290 (2) (e)

(834 SE2d 378) (2019) (citation and punctuation omitted). Generally speaking,

however,

the greater the tendency to make the existence of a fact more or less

probable, the greater the probative value. . . . 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. . . . And probative value depends as well upon the need for

the evidence. When the fact for which the evidence is offered is

undisputed or not reasonably susceptible of dispute, the less the

probative value of the evidence.

Olds v. State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016) (citations omitted).

“The major function of [Rule 403] is to exclude matter of scant or cumulative

probative force, dragged in by the heels for the sake of its prejudicial effect.” Sloan

v. State, 351 Ga. App. 199, 210 (2) (e) (ii) (830 SE2d 571) (2019) (citation and

punctuation omitted). Thus, “the exclusion of evidence under Rule 403 is an

extraordinary remedy which should be used only sparingly.” Olds, 299 Ga. at 70 (2).

In that regard, an appellate court reviewing issues under Rule 403 must “look at the

evidence in a light most favorable to its admission, maximizing its probative value

21
and minimizing its undue prejudicial impact.” Sloan, 351 Ga. App. at 208 (2) (e)

(citation and punctuation omitted).

Wright does not dispute that the State satisfied the third prong of the Jonestest;

his appellate challenges thus implicate only the first two prongs. During Wright’s

trial, an investigator testified that, in June 2011, he stopped a car in which Wright was

a passenger (because Wright was not wearing a seatbelt) after watching what

appeared to be a drug transaction. Officers searched Wright and found three bags of

marijuana with a combined weight of 25.9 grams, a pistol, and $730 in cash in his

pants pockets, as well as a digital scale on the car seat where he had been sitting. The

investigator did not find any personal-use paraphernalia on Wright at that time. As

a result of that encounter, Wright pled guilty to possession with intent to distribute

marijuana and possession of a firearm during the commission of a crime.8

Immediately before testimony about the 2011 incident, the trial court gave a

limiting instruction, telling the jury that it could consider evidence of other crimes

allegedly committed by Wright only “insofar as [such evidence] relates to”

8 While Wright admitted during cross-examination (in the first part of his

bifurcated trial) that, as a result of the June 2011 encounter, he pled guilty to one or

more offenses involving an “inten[t] to distribute,” the ensuing convictions and

sentences resulting from those guilty pleas were not admitted into evidence until the

second part of the bifurcated trial. 

22
knowledge, intent, and lack of mistake in the current case, “and not for any other

purpose.” The court repeated this instruction during the jury charge. For the reasons

that follow, the evidence was improperly admitted on all three bases.

(a) Knowledge. For purposes of Rule 404 (b), “knowledge” refers either to a

specialskill, such assafe-cracking, bomb-making, or documentforgery, or to specific

knowledge based on past experience such as a trespass conviction used to establish

a defendant’s knowledge that he was not welcome on the premises. See Paul S.

Milich, Ga. Rules of Evidence § 11:17, p. 348 & n. 1 (2019-2020 ed.), cited in

Rouzan v. State, 308 Ga. 894, 899 (2) (843 SE2d 814) (2020) (concluding that prior

guilty pleas to voluntary manslaughter and burglary were not relevant to the

defendant’s “knowledge” in a prosecution for murder and a gun-possession offense);

United States v. Walters, 351 F3d 159, 161, 164-167 (I)-(II) (A) (5th Cir. 2003) (in

a prosecution for making and sending a bomb, evidence that the defendant possessed

a book entitled “The Anarchist’s Cookbook” was properly admitted under Rule 404

(b) to show that the defendant “had the knowledge to construct the destructive device

used to commit the crimes alleged in the indictment”) (punctuation omitted); United

States v. Garcia, 880 F2d 1277, 1278-1279 (11th Cir. 1989) (in a prosecution for

making a false statement on a loan application, evidence that the defendant previously

23
signed a third party’s name on a document purporting to sell the third party’s

apartment to the defendant was properly admitted under Rule 404 (b), as it showed

that the defendant “had the ability to prepare documents purporting to bear signatures

which were faked”).9

Moreover, “a defendant’s knowledge may be at issue where it is an element of

the charged crime; that is, when knowledge itself is part of the statutory definition of

the crime, and thus must be proven by the prosecution.” Green, 352 Ga. App. at 289

(2) (c) (citation and punctuation omitted). For example, in a prosecution for reckless

conduct, the defendant’s knowledge of his and his sexual partners’ HIV status “was

highly probative and relevant as to whether he . . . knew that he was [HIV-]positive

at the time he engaged in sexual relationships with the victims.” Davis v. State, 342

Ga. App. 889, 894 (1) (806 SE2d 3) (2017) (citation and punctuation omitted). And

in a prosecution for misdemeanor obstruction of an officer, prior instances of

obstruction may be relevant to show that the charged act of obstruction was knowing

9

“[B]ecause our new Evidence Code is comparable to the Federal Rules of

Evidence, this Court will give consideration and great weight to constructions placed

on the Federal Rules by the federal courts.” Curry v. State, 330 Ga. App. 610, 613 (1)

(768 SE2d 791) (2015) (citation and punctuation omitted).

24
and wilful, as required by the relevant statute. See Green v. State, 339 Ga. App. 263,

265-267 (1) (a) (793 SE2d 156) (2016).

Knowledge is also properly in issue when the defendant claims

that he or she was unaware that a criminal act was being perpetrated. In

such cases, the hypothesis justifying the admission of other-acts

evidence is similar to that invoked with intent: the likelihood that

repeated instances of behavior, even if originally innocent, will have

resulted in [the] defendant’s having the requisite state of knowledge by

the time of the charged crime.

Green, 352 Ga. App. at 289 (2) (c) (citation and punctuation omitted). Where no

special knowledge or talent is required to commit the charged crime, however, other

acts should not be admitted simply to show that the defendant is “capable” of

committing the charged offense. Id. at 289-290 (2) (c) (citing Paul S. Milich, Ga.

Rules of Evidence § 11:17, pp. 340-341 (2018-2019 ed.)).10

10

 As explained by Professor Milich,

The probative value of proving knowledge lies in answering a concern

a juror might otherwise have: “did the defendant know how to do that?”

If the crime, such as robbing a person with a pistol, requires no special

skill, then that juror concern never arises and there is no probative value

to the evidence other than the illegitimate inference — “he did it before

so he probably did it again.”

Paul S. Milich, Ga. Rules of Evidence § 11:17, p. 348, n. 2 (2020-2021 ed.).

25
There is no allegation that any special knowledge or skill wasrequired for any

of the offenses at issue here. See Rouzan, 308 Ga. at 899 (2); Davis, 342 Ga. App. at

894 (1). Moreover, Wright did not claim that he was unaware that items in his

possession contained drugs and a gun—he merely disclaimed ownership of the black

book bag outright. See Green, 352 Ga. App. at 289 (2) (c). Under these

circumstances, Wright’s knowledge was not at issue in this case, and the trial court

therefore erred in admitting the other acts evidence on this basis. See Rouzan, 308 Ga.

at 899 (2); Green, 352 Ga. App. at 289 (2) (c); Davis, 342 Ga. App. at 894 (1).

(b) Intent. The first prong of the Rule 404 (b) test is met where intent is a

material issue on which the State bears the burden of proof and “the same state of

mind was required for committing the prior act and the charged crimes.” Jones, 297

Ga. at 160-161 (2). In that regard, “a defendant puts hisintent in issue when he pleads

not guilty unless he takes affirmative steps to withdraw intent as an element to be

proved by the State.” Id. at 161 (2), n. 4; accord Kirby v. State, 304 Ga. 472, 480 (4)

(a) (819 SE2d 468) (2018); Sloan, 351 Ga. App. at 208 (2) (d).

(i) Relevance. Wright’s prior convictions are relevant to show his intent here

because the same intent was required in both cases, and he did not affirmatively seek

to withdraw intent as an element to be proved by the State as to each offense in this

26
case. See Kirby, 304 Ga. at 480 (4) (a); Jones, 297 Ga. at 160-161 (2) & n. 4; Sloan,

351 Ga. App. at 208 (2) (d). We therefore must address whether the danger of unfair

prejudice substantially outweighed the probative value of the other acts evidence. See

OCGA § 24-4-403; Jones, 297 Ga. at 159 (1).

(ii) Rule 403.When applying the Rule 403 balancing test to other acts evidence

of intent, the inquiry asto prosecutorial need focuses on whether there is any “danger

that a rational jury could find that although the defendant committed the objective,

charged acts, he did not intend to do so.” Sloan, 351 Ga. App. at 209 (2) (e) (i)

(citation and punctuation omitted); accordChynoweth v. State, 331 Ga. App. 123, 128

(3) (768 SE2d 536) (2015) (citing Paul S. Milich, Ga. Rules of Evidence, § 11:13,

p. 321 (2014-2015 ed.)). Thus, the prosecutorial need for other acts evidence of intent

is minimal where it is “unlikely, based upon the particular facts and circumstances of

th[e] case, that any rational jury could find that the perpetrator lacked criminal

intent.” Sloan, 351 Ga. App. at 210 (2) (e) (i); accord Jackson v. State, 306 Ga. 69,

78-80 (2) (b) (ii) (829 SE2d 142) (2019) (in a prosecution for murder involving a

shooting into a retreating car, evidence that the defendant previously shot another

man who was retreating in his truck should not have been admitted to show intent

because “[n]either party ever contended that the shooting [under prosecution] was

27
unintentional,” as a result of which the prosecutorial need for the other acts evidence

was “negligible”); Green, 352 Ga. App. at 291 (2) (e) (i) (concluding that “the

prosecutorial need for [other acts] evidence was negligible with regard to intent as no

evidence was presented showing that the [charged criminal act]was unintentional and

[the defendant] presented no such defense”); see also generally Brown v. State, 303

Ga. 158, 162 (2) (810 SE2d 145) (2018) (“When the fact for which the evidence is

offered is undisputed or not reasonably susceptible of dispute, the less the probative

value of the evidence.”) (citation and punctuation omitted); Smith v. State, 232 Ga.

App. 290, 293 (1) (501 SE2d 523) (1998) (“[W]here intent may be easily inferred

from the commission of the act itself, the probative value of similar transaction

evidence proffered to prove intent will generally be outweighed by its prejudicial

effect.”).

Here, the jury was tasked with choosing between two competing versions of

events. Under the State’s version — based entirely on the investigator’stestimony—

Wright claimed sole ownership of the black book bag “and everything in it.” Under

Wright’s version — based entirely on his testimony — (i) he had only one bag with

him: a small red and black bag; (ii) he knew nothing about the black book bag or its

contents; and (iii) he never claimed ownership of the black book bag or its contents

28
but instead simply claimed ownership of the red and black bag he brought with him.

11

These versions are mutually exclusive: if the jury believed the investigator, it would

have to disbelieve Wright; if the jury believed Wright, it would have to disbelieve the

investigator.

Regardless of which version of events the jury believed, however, in neither

scenario is there any likelihood that the jury would find that Wright possessed the

items in the black book bag but intended neither to possess the drugs and gun nor to

distribute the drugs, given the volume of drugs, the packaging, the presence of a scale

and a gun in the same bag, and the absence of personal-use paraphernalia.12 The

11 While Wright testified that he “didn’t give a direct statement taking

ownership of anything,” he then added, “I told them what I had,” which, he claimed,

was the red and black bag he brought with him. 

12 Had there been some evidence that Wright possessed the black book bag but

did not intend to possess its contents — for example, if he claimed that the black

book bag was his but that he knew nothing of its contents — the prosecutorial need

for other acts evidence of intent would then be much higher. See Sloan, 351 Ga. App.

at 210 (2) (e) (i) (“‘The classic situations calling for admissibility of independent

crimes or acts to prove intent are when the defendant admits a certain involvement

in the criminal incident but maintains he was duped or forced to go along and thus

lacked the necessary criminal intent or the defendant admits the charged conduct but

claims he did not intend to act criminally.’”) (quoting Paul S. Milich, Ga. Rules of

Evidence, § 11:15, p. 330 (2018-2019 ed.)); accord, e.g., Westbrook v. State, 355 Ga.

App. 334, 336-338 (1)-(2) (844 SE2d 208) (2020) (evidence of a prior armed robbery

conviction was “highly probative of [the defendant’s] intent” when he drove an

accomplice to and from the charged armed robberies but claimed that he wasignorant

29
prosecutorial need for the other acts evidence to show intent here therefore was

minimal. See Jackson, 306 Ga. at 78-80 (2) (b) (ii); Sloan, 351 Ga. App. at 210 (2)

(e) (i); see also McKinney v. State, 307 Ga. 129, 138 (3) (b), n. 7 (834 SE2d 741)

(2019) (evidence of a prior assault committed by the defendant had limited probative

value “because the prosecutorial need for it was negligible,” given that “[t]here was

no real dispute that whoever beat and strangled [the victim in the charged crimes] to

death had the intent required for malice murder and aggravated assault with an

offensive weapon”); compare Chynoweth, 331 Ga. App. at 128 (3) (in a prosecution

for attacking a correctional officer, evidence of the defendant’s unprovoked attack on

another inmate was properly admitted to rebut suggestions that the defendant may

have lacked the necessary intent due to mental illness).

at that time of the accomplice’s plan to commit the robberies); see also United States

v. Arbane, 446 F3d 1223, 1226 (II) (B), n. 4 (11th Cir. 2006) (approving of the trial

court’s instruction to the jury that it was permitted to consider other acts evidence

only for the purpose of determining the defendant’s intent, “and only if [it] found

beyond a reasonable doubt from other evidence in the case that [the defendant] did

commit the acts charged in the indictment”) (emphasis supplied); United States v.

Beechum, 582 F2d 898, 917 (III) (C), n. 23 (5th Cir. 1978) (implicitly approving of

the trial court’s instruction to the jury that it could not consider other acts evidence

of intent “in determining whether an accused committed the acts or participated in the

activity alleged in the indictment” and that the other acts evidence could not be

considered for any purpose “unlessthe jury first [found] that the other evidence in the

case, standing alone, establishe[d] beyond a reasonable doubt that the accused

participated in the activity alleged in the indictment”) (emphasis supplied).

30
Moreover, the temporal proximity between the prior June 2011 incident and the

November 2015 incident charged here does not materially add to the probative value

of the other acts evidence. See, e.g., Sloan, 351 Ga. App. at 210 (2) (e) (i) (concluding

that six- and eleven-year gaps between prior offenses and the charged offenses did

not “appreciably” add to the prior offenses’low probative value). And the similarities

between the prior acts and current offenses likewise do not weigh in favor of

admissibility for reasons discussed in more detail in Division (2) (b) (iii) and note 13

below.

The danger of unfair prejudice, on the other hand, was significant. The only

direct evidence of Wright’s guilt in this case came from the testimony of a single

witness. And given Wright’s testimony that two bags were present (both of which

were at least partially black) and that he never claimed ownership of the black book

bag, as well as his explanation for why he was in the room with the black book bag,

a reasonable juror could have found that Wright intended to claim ownership only of

the small red and black bag, and not the black book bag. Viewed in that context, the

danger of unfair prejudice from the admission of the facts underlying the prior

convictions was high, as it encouraged the jury to find that, because Wright had

possessed drugs and a gun together in the past, he was more likely to have done so

31
here, which plainly is prohibited by Rules 403 and 404 (b). See Smith, 232 Ga. App.

at 293 (1) (the prejudicial effect of other acts evidence generally will outweigh its

probative value “where intent may be easily inferred”); see also generally Jackson,

306 Ga. at 78-80 (2) (b) (ii); Brown, 303 Ga. at 162 (2) (“[O]ne of the dangers

inherent in the admission of extrinsic offense evidence is that the jury may convict

the defendant not for the offense charged but for the extrinsic offense, because the

jury may feel that the defendant should be punished for that activity even if he is not

guilty of the offense charged.”) (citation and punctuation omitted).

We are cognizant that courts must view other acts evidence “in a light most

favorable to its admission, maximizing its probative value and minimizing its undue

prejudicial impact.” Sloan, 351 Ga. App. at 208 (2) (e) (citation and punctuation

omitted). So viewed, even assuming that the temporal proximity and general

similarities between the prior acts and charged offenses arguably could weigh

somewhat in favor of admissibility, on the facts of this case, the absence of any

meaningful prosecutorial need significantly outweighs those factors. And given the

limited quantity of evidence from which the jury was tasked with choosing between

two diametrically opposed versions of events (again, on the specific facts of this

case), the danger that the jury would misuse the evidence for improper propensity

32
purposes — the very essence of unfair prejudice — substantially outweighs any

potential probative value that may be attributed to the other acts evidence. See OCGA

§ 24-4-403; Jones, 297 Ga. at 158 (1); see also Old Chief v. United States, 519 U. S.

172, 180 (II) (B) (1) (117 SCt 644, 136 LE2d 574) (1997) (explaining that unfair

prejudice in this context includes the danger that a jury will “generaliz[e] a

defendant’s earlier bad act into bad character and tak[e] that as raising the odds that

he did the later bad act now charged”); Troy v. State, 312 Ga. 860, 863, n. 5 (866

SE2d 394) (2021) (“the unfair prejudice analysis” under Rule 403 focuses on

“whatever extent the [other acts] evidence was likely to draw an improper propensity

inference”). The trial court therefore abused its discretion in admitting the other acts

evidence on this basis, as well.

(iii) Dissent. The dissent argues that: (i) the probative value of the other acts

evidence is high because the prior acts are “very similar” to the charged offenses; and

(ii) the prosecutorial need for the evidence also is high because it is needed to answer

the question of whether Wright(rather than “some hypothetical perpetrator”) —“who

maintained he was merely present at the scene of a crime with many other people”

and disclaimed ownership of the black book bag — “intended to possess the bag of

33
drugs.” There are three primary, interrelated flaws in the dissent’s analysis. We

address each in turn.

(A) First, the dissent’s approach side-steps the proper balancing test for

assessing prosecutorial need (and relative probative value) of other acts evidence of

intent under Rule 403, which asks whether a rational jury could find that the

defendant committed the objective, charged acts with no intent to do so, not whether

the evidence generally is probative of the defendant’s intent in the abstract. See

Sloan, 351 Ga. App. at 209 (2) (e) (i); Chynoweth, 331 Ga. App. at 128 (3); see also

Jackson, 306 Ga. at 78-80 (2) (b) (ii) (concluding that there was no prosecutorial need

for other acts evidence in a prosecution for murder and a firearm offense where “[a]ll

of the evidence at trial indicated that the person who repeatedly fired a gun toward

[the victim] had the requisite general intent to commit an assault with a deadly

weapon”); Green, 352 Ga. App. at 291 (2) (e) (i). Moreover, where, as here, no

rational jury could find that Wright possessed the black book bag’s contents while

intending neither to possess the drugs and gun nor to distribute the drugs, any

potentialsimilarities between the prior acts and charged offenses further increase the

danger of unfair prejudice — i.e., that the jury will infer guilt based on an improper

34
propensity basis.

13 See Old Chief, 519 U. S. at 185 (II) (B) (2) (where prior bad acts

involve offenses similar to the charged offenses, the risk of unfair prejudice — i.e.,

that the nature of the prior bad acts may “lure a juror into a sequence of bad character

reasoning” — is “substantial” and “especially obvious”).

13 Regardless — and contrary to the dissent’s conclusion that the extrinsic acts

here are “very similar” to the charged offenses — there are at least as many

differences between the prior acts and the charged offenses as there are similarities.

While in both episodes, drugs, a gun, a scale, and a large sum of cash were found in

some proximity to Wright, the differences include the following: (i) the prior acts

involved marijuana, whereas the charged offenses involve a synthetic cannabinoid

(“spice”); (ii) the prior acts involved a .22 caliber Jennings semiautomatic pistol,

whereasthe charged offensesinvolve a .44 caliber Magnumrevolver (a “large caliber

handgun”); (iii) the prior acts involved three bags of marijuana weighing a total of

25.9 grams, whereas the charged offenses involve nearly 40 individually packaged

bags of “spice” weighing more than 47 grams; and (iv) in the prior acts, the drugs and

gun were found on Wright’s person, and the scale wasfound inside a vehicle in which

Wright had been a passenger, whereas in the charged offenses, all items other than

the cash were found in a black book bag behind a door in a bedroom in another

person’s residence. Consequently, the quantum of similarities and differences

between the two incidents adds little to either side of the equation as to relative

probative value. See Jackson, 306 Ga. at 78 (2) (b) (ii) (highlighting that “[a] more

careful and granular comparison of” the prior acts and charged offenses — both of

which involved the defendant firing a gun into a retreating vehicle — “reveal[ed]

substantial differences between them”); Brooks v. State, 298 Ga. 722, 725-726 (2) &

n. 10 (783 SE2d 895) (2016) (explaining that a “major difference” between Georgia’s

current Evidence Code and our prior “similar transaction” case law is the need under

Rule 404 (b) to consider the dissimilarities as well as the similarities between the

extrinsic and charged acts).

35
(B) Second, under the dissent’s approach, the exception would swallow the

rule, insofar as a “mere presence” defense, without more, would render the

prosecutorial need for other acts evidence of intent “high” in any prosecution for a

controlled substance offense. While there may be certain factual scenarios in which

a “mere presence” defense may increase the prosecutorial need for such evidence (see

note 12, above), this is not one. As stated above, if the jury were to believe the

investigator and disbelieve Wright, the prosecutorial need for other acts evidence of

intent essentially would be nil. If, however, the jury were to believe Wright and

disbelieve the investigator, the other acts evidence logically would serve one of two

primary, improper purposes.

On the one hand, the jury could infer guilt based on propensity by deciding

that: (i) although it was otherwise inclined to believe Wright, because he committed

the prior acts, he likely intended to commit the charged offenses; and (ii) because he

likely intended to commit the charged offenses, he likely possessed the drugs and gun

at issue here, i.e., “act[ed] in conformity” with the prior acts. OCGA § 24-4-404 (b).

Under that plainly improper line of reasoning, the jury would be using evidence of

intent on a prior occasion to impermissibly establish possession in the charged

offenses. See Jackson, 306 Ga. at 79 (2) (b) (ii), n. 10 (the defendant’s claim that he

36
was not the perpetrator “was an issue of identity, not intent, and evidence of the

[extrinsic bad act] was not admitted for that purpose”); see also United States v.

Arbane, 446 F3d 1223, 1226 (II) (B), n. 4 (11th Cir. 2006) (jury instructed that other

acts evidence of intent could be considered only if the jury first found that the

remaining evidence established that the defendant committed the charged acts);

United States v. Beechum, 582 F2d 898, 917 (III) (C), n. 23 (5th Cir. 1978) (same);

Paul S. Milich, Ga. Rules of Evidence § 11:15, p. 336, n. 7 (2020-2021 ed.) (an

accused’s denial that he committed the predicate act has “nothing to do with proving

intent”); see also generally Old Chief, 519 U. S. at 181 (II) (B) (1) (extrinsic acts may

not be used to show propensity because doing so “is said to weigh too much with the

jury and to so overpersuade them as to prejudge one with a bad general record and

deny him a fair opportunity to defend against a particular charge”) (citation and

punctuation omitted).

On the other hand, the other acts evidence could entice the jury to find Wright

guilty in this case as punishment for possessing drugs and a gun in the prior case. See

Brown, 303 Ga. at 162 (2). That danger is heightened where, as here, only the prior

acts — and not the convictions and sentences resulting from those acts — were

37
admitted during the first phase of Wright’s bifurcated trial,

14

and the convictions and

sentences themselves were not admitted until the second phase of the trial, after the

jury already had found Wright guilty of the currently charged offenses.Cf. Westbrook

v. State, 355 Ga. App. 334, 338 (2) (844 SE2d 208) (2020) (concluding that the

potential undue prejudicial effect of other acts evidence was mitigated where the jury

learned that the defendant had “been convicted and served a prison sentence for his

earlier conduct, making it less likely that the jury would want to punish [the

defendant] for this past conduct rather than the charged crimes”) (citation and

punctuation omitted). In either situation, the other acts evidence serves primarily (if

not entirely) an improper purpose.

(C) Finally, while the three decisions on which the dissent primarily relies

arguably may appear to support the trial court’s ruling here at first glance, each case

differs significantly from the present scenario on closer inspection. See Hargrove v.

State, 361 Ga. App. 106 (863 SE2d 364) (2021); Moton v. State, 351 Ga. App. 789

(833 SE2d 171) (2019); Gunn v. State, 342 Ga. App. 615 (804 SE2d 118) (2017).

Importantly, in none of these decisions did this Court engage in the relevant analysis

14 For this reason, the dissent’s references to the jury’s consideration of

Wright’s “prior drug conviction” and “prior conviction” are somewhat misplaced in

this context. 

38
with respect to prosecutorial need of other acts evidence of intent under Rule 403,

i.e., asking whether a rational jury could find that the defendant committed the

objective, charged acts with no intent to do so. Compare Hargrove, 361 Ga. App. at

111-117 (2), Moton, 351 Ga. App. at 791-794, and Gunn, 342 Ga. App. at 618-622

(1), with Green, 352 Ga. App. at 291 (2) (e) (i), Sloan, 351 Ga. App. at 209 (2) (e) (i),

and Chynoweth, 331 Ga. App. at 128 (3).

Specifically, in Hargrove, prosecutorial need was deemed “significant” for

reasons not present here — i.e., because the evidence that the defendant possessed the

drugs and paraphernalia in that case “was entirely circumstantial,” 361 Ga. App. at

116 (2) (c) (ii), insofar as the contraband was found in plain view in multiple rooms

in a residence in which two other persons were present, after the defendant left the

residence. See id. at 107-108. Here, however, the State presented direct evidence that

Wright claimed ownership of the black book bag (itself hidden behind a door in a

single room last occupied by Wright) in which the drugs, gun, and a scale were

found.15 Hargrove thus has limited precedential value here.16

15 While Wright also testified that he never claimed ownership of the black

book bag, histestimony in that regard neither (a) renders evidence of possession here

“entirely circumstantial” nor (b) has any bearing on the proper analysis under the

facts of this case — whether a rational jury could find that he possessed the items at

issue without the requisite intent. See Jackson, 306 Ga. at 78-80 (2) (b) (ii); Green,

39
In Moton, this Court engaged in no discussion of prosecutorial need vis-à-vis

the danger of unfair prejudice under Rule 403,

17

but rather summarily concluded that

352 Ga. App. at 291 (2) (e) (i); Sloan, 351 Ga. App. at 209 (2) (e) (i); Chynoweth, 331

Ga. App. at 128 (3); see generally Division (2) (b) (ii), above.

16 On a related note, unlike the instant case, Hargrove involved a prosecution

based solely on “constructive possession,” which required the State to establish that

the defendant had “both the power and the intention at a given time to exercise

dominion or control over” the contraband at issue, which was found in multiple

rooms of a residence occupied by multiple people. 361 Ga. App. at 107, 109 (1)

(citation and punctuation omitted); see also id. at 114-115 (2) (c) (i) (concluding that

the other acts evidence was relevant to establish the “intent” element of constructive

possession). Moreover, while not expressly addressed in this Court’s decision, the

danger of unfair prejudice in Hargrove was substantially lower, insofar as the State

also presented evidence that, during the investigation into the charged crimes, the

defendant directly engaged in multiple drug transactions with an informant and also

engaged in multiple additional acts consistent with drug transactions. See id. at 107.

Here, however, the only direct evidence of Wright’s guilt came from the testimony

of a single witness and concerned only a single set of circumstances that occurred

during a short period of time at a single location, thereby rendering the danger of

unfair prejudice significant.

17

In its discussion of relevance under Rule 404 (b), this Court in Moton

observed that: (i) “to prove that [the defendant] had the requisite intent to sell, the

State had to prove that [he] also had methamphetamine under his control, as the State

alleged with his prior drug possession arrest”; and (ii) “[e]vidence of prior drug

activity is highly probative of intent to sell a controlled substance.” 351 Ga. App. at

792-793. The proposition that evidence of prior drug activity may be “highly

probative” of a defendant’s intent to sell drugs for purposes of relevance — in the

abstract — is a separate question from whether, on the specific facts of a given case,

a rational jury could find that a defendant possessed drugs but intended neither to do

so nor to distribute the drugs. See Sloan, 351 Ga. App. at 209 (2) (e) (i); see also

Olds, 299 Ga. at 75 (2) (“Relevance and probative value are related, but distinct,

40
the Rule 403 balancing test was satisfied because: (i) “[the defendant]’s possession

of drugs in the prior act and the sale in [a transaction then under prosecution]

occurred at the same location within two years of one another”; and (ii) “the risk of

unfair prejudice to [the defendant] was reduced by the [trial] court’s limiting

instruction, which was given both prior to [an] officer’s testimony [about the prior

act] and during the general jury charge.” 351 Ga. App. at 793-794. Absent any

substantive analysis of prosecutorial need, the decision in Moton also haslittle-to-no

precedential value with respect to the facts in this case.

Finally, in Gunn, this Court again engaged in no discussion of balancing

prosecutorial need against the danger of unfair prejudice under Rule 403, but rather

summarily determined that, “under the facts of [that] case,” the 11-year time span

between a prior conviction and the acts underlying the prosecution at issue did not

concepts. . . . When the fact for which the evidence is offered is undisputed or not

reasonably susceptible of dispute, the less the probative value of the evidence.”);

accord Old Chief, 519 U. S. at 184-185 (II) (B) (1) (distinguishing between

(a) relevance and (b) probative value under Rule 403). On the factual scenario

presented in this case, there is simply no likelihood that a rational jury would find

either that Wright unintentionally possessed the drugs and gun (found together in a

bag with a scale) or that, if he possessed them, he did not intend to distribute the

individually packaged drugs.

41
render the prior conviction “too remote to erode” its probative value.18

342 Ga. App.

at 621-622 (1). Absent any relevant analysis, Gunn’s precedential value here also is

limited, at best.

19

For each of the above reasons, the trial court erred when it admitted the other

acts evidence for purposes of establishing Wright’s intent in the current prosecution.

(c) Lack of mistake. Wright never claimed, nor was there any evidence to

suggest, that he accidentally or mistakenly possessed the drugs and gun at issue in

18 Although the trial court in Gunn admitted the other acts evidence for

purposes of establishing motive, intent, and knowledge, 342 Ga. App. at 618 (1), this

Court addressed only intent to distribute on appeal, id. at 620-622 (1).

19 Two of the remaining decisions cited by the dissent — Bradshaw v. State,

296 Ga. 650 (769 SE2d 892) (2015) (prosecution for malice murder and other crimes

in connection with the shooting deaths of two victims); and Williams v. State, 328 Ga.

App. 876 (763 SE2d 261) (2014) (prosecution for burglary; other acts evidence

limited to a witness’s prior conviction) — also contain no substantive analysis

regarding the balancing of prosecutorial need against unfair prejudice where intent

easily may be inferred based on all of the circumstances. And the other remaining

decision cited by the dissent — Olds, 299 Ga. 65 (prosecution for false imprisonment

and battery), in which the Supreme Court vacated a decision of this Court and

remanded the case for this Court to engage in a proper Rule 403 analysis — supports

our ruling on this issue in this case. See id. at 75-76 (2) (observing that: (i) probative

value “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”;

(ii) “[t]he stronger the other proof, the less the marginal value of the evidence in

question”; and (iii) application of the Rule 403 test “calls for a careful, case-by-case

analysis, not a categorical approach”).

42
this case. Consequently, whether the charged offenses resulted from an accident or

mistake wasirrelevant. See, e.g., Brown, 303 Ga. at 161-162 (2) (holding that the trial

court erroneously admitted prior aggravated assault convictions to show absence of

mistake or accident where the defendant never claimed, and there was no evidence

to suggest, that the charged shooting was an accident or mistake); Thompson v. State,

302 Ga. 533, 541 (III) (A) (807 SE2d 899) (2017) (evidence of a subsequent armed

robbery was inadmissible to show mistake with respect to the charged shootings and

robberies because there was no allegation that the defendant “accidentally or

mistakenly shot the victims or that he accidentally or mistakenly stole their

property”); Parks, 300 Ga. at 306 (2) (a prior aggravated assault conviction was

inadmissible to show knowledge or absence of mistake in a prosecution for murder

and aggravated assault because the defendant’s knowledge was not at issue in light

of his justification defense, “and he made no claim that he accidentally or mistakenly

shot the victim”); compare Thompson, 308 Ga. at 859 (2) (in a murder prosecution,

evidence of the defendant’s prior acts of violence toward family members was

relevant to rebut his claim that his wife’s death resulted from accident or mistake).

The trial court therefore similarly erred in admitting the other acts evidence on this

basis.

43
(d) Harm. Having determined that the trial court erred when it admitted the

other acts evidence under Rules 403 and 404 (b), we must review the record de novo

to determine whether the error was harmless. Brown, 303 Ga. at 164 (2). “The test for

determining nonconstitutional harmless error is whether it is highly probable that the

error did not contribute to the verdict.” Id. (citation and punctuation omitted). In

making this assessment, “we weigh the evidence as we would expect reasonable

jurors to have done so, as opposed to assuming that they took the most pro-guilt

possible view of every bit of evidence in the case.” Id. (citation and punctuation

omitted).

As alluded to above, absent the other acts evidence, the remaining evidence of

Wright’s guilt was not overwhelming, but rather rested primarily on the testimony of

a single witness. And the jury reasonably could have found from Wright’s testimony

that he intended to claim ownership only of the small red and black bag, and not the

black book bag. Finally, the jury was erroneously charged that it could consider the

prior acts evidence for multiple improper reasons. As a result, the evidence was not

so overwhelming, and the improper other acts evidence was notso marginal, to render

it highly probable that the error did not contribute to the verdict. See Sloan, 351 Ga.

44
App. at 211-212 (2) (f); accord Brown, 303 Ga. at 164 (2); Thompson, 302 Ga. at 542

(III) (A). We therefore reverse Wright’s convictions on this basis.

3. Wright also contends that the evidence was insufficient to support his

convictions. We disagree.20

“When a criminal defendant challenges the sufficiency of the evidence

supporting his conviction, the relevant question is 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.” Galvan

v. State, 330 Ga. App. 589, 592 (1) (768 SE2d 773) (2015) (citations and punctuation

omitted); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 560) (1979). “[I]t is the sole province of the trier of fact to resolve conflicts in

the testimony,” and this Court neither weighs the evidence nor determines witness

credibility. Evans v. State, 315 Ga. App. 863, 864 (729 SE2d 31) (2012). “[A]s long

as there is some competent evidence, even though contradicted, to support each fact

20 As discussed below, although we reverseWright’s convictions on evidentiary

grounds, we address his challenge to the sufficiency of the evidence for purposes of

determining that he may be tried again. See Finney v. State, 311 Ga. 1, 18 (3) (b),

n. 30 (855 SE2d 578) (2021); Cowart v. State, 294 Ga. 333, 344 (6) (751 SE2d 399)

(2013).

45
necessary to make out the State’s case, the trier of fact’s verdict will be upheld.” Id.

(citation and punctuation omitted).

Wright’s appellate challenge here is limited to his claims that insufficient

evidence connected himto the black book bag (and, necessarily, its contents) and that

what little evidence was presented on that issue was contradictory.

21

 It was the sole

province of the jury, however, to resolve the conflicts in the evidence, assess the

investigator’s and Wright’s credibility, and determine whether Wright possessed the

black book bag and its contents.

22 See Browner v. State, 296 Ga. 138, 141 (1) (765

21 Our rulings in Division 1 dispose of Wright’s assertion that we should not

consider his statements claiming ownership of the black book bag and its contents in

determining the sufficiency of the evidence. 

22 Although Wright makes no argument in thisregard, for purposes of deciding

that he may be tried again, we conclude that the evidence was sufficient for the jury

to find that he intended to distribute the “spice.” See, e.g., Taylor v. State, 344 Ga.

App. 439, 441 (1) (810 SE2d 333) (2018) (intent to distribute could be inferred from,

inter alia, the amount of drugs, a law enforcement officer’s testimony that the volume

of drugs was consistent with distribution rather than personal use, and the presence

of a scale); Thomas v. State, 321 Ga. App. 214, 215-216 (1) (741 SE2d 298) (2013)

(intent to distribute could be inferred from, inter alia, the volume of drugs, how they

were concealed and packaged, and the fact that the defendant “lacked a device for

using the drugs”), disapproved in part on other grounds by Langley v. State,

No. S21G0783, 2022 Ga. LEXIS 14, at *13 (2), n. 7 (Feb. 1, 2022); see also Latta v.

State, 341 Ga. App. 696, 698-699 (1) (802 SE2d 264) (2017) (the intent with which

an act is done is “peculiarly a question of fact” for determination by the jury and may

be inferred from circumstantial evidence); Woods v. State, 302 Ga. App. 891, 893 (1)

46
SE2d 348) (2014) (“[r]esolving evidentiary conflicts and inconsistencies and

assessing witness credibility are the province of the fact finder, not the appellate

court,” and the trier of fact is not required to accept the defense presented by the

defendant). We find no error in this regard, as a result of which the State may retry

Wright if it so chooses. See Finney v. State, 311 Ga. 1, 18 (3) (b), n. 30 (855 SE2d

578) (2021); Cowart v. State, 294 Ga. 333, 344 (6) (751 SE2d 399) (2013).

Judgment reversed. McFadden, P. J., concurs and Rickman, C. J., dissents.

(691 SE2d 913) (2010) (a jury may infer intent based on all of the circumstances

“connected with the act for which the accused is prosecuted”) (citation and

punctuation omitted).

47
A21A1655. WRIGHT v. THE STATE.

RICKMAN, Chief Judge, dissenting.

Because the probative value of the other acts evidence was not substantially

outweighed by its unfair prejudice, I respectfully dissent. 

I agree with the majority’s conclusion that the other acts evidence wasrelevant

to show Wright’s intent.

1 The majority errs, however, in its application of the Rule

403 balancing test. 

“Prior to the enactment of the new evidence code, Georgia had no direct

statutory equivalent to Rule 403, but case law on the issue generally required that a

1 Because the majority determined that the evidence was relevant to prove

intent, it was unnecessary to analyze whether the evidence was relevant to prove

knowledge and lack of mistake. See Bradshaw v. State, 296 Ga. 650, 657 n. 5 (3)

(769 SE2d 892) (2015). 
trial court merely balance the probative value of evidence with its prejudicial effect

without requiring that the objecting party establish substantial prejudice.” (Footnote

omitted.) Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014). “In

stark contrast, the plain meaning of OCGA § 24-4-403’stext makes clear that the trial

court may only exclude relevant evidence when its probative value is ‘substantially

outweighed’ by one of the designated concerns.” Id. 

“[T]he exclusion of evidence under Rule 403 is an extraordinary remedywhich

should be used only sparingly.” (Citation and punctuation omitted.) Olds v. State, 299

Ga. 65, 70 (2) (786 SE2d 633) (2016). “Obviously, the reason for such caution isthat

relevant evidence in a criminal trial is ‘inherently prejudicial,’ and, as a result, Rule

403 permits exclusion only when unfair prejudice substantially outweighs probative

value.” (Citation and punctuation omitted.) Williams, 328 Ga. App. at 879 (1). “The

primary function of Rule 403, then, is to exclude evidence of scant or cumulative

probative force, dragged in by the heels for the sake of its prejudicial effect.”

(Citation and punctuation omitted.) Id. at 879-880 (1). 

“The Rule 403 analysis requires a common sense assessment of all the

circumstances surrounding the extrinsic act and the charged offense including the

prosecutorial need for the extrinsic evidence, the overall similarity between the

2
extrinsic act and the charged offense, and the temporal remoteness of the other act.”

(Citation and punctuation omitted.) Hargrove v. State, 361 Ga. App. 106, 116 (2) (c)

(ii) (863 SE2d 364) (2021). “In reviewing issues under Rule 403, we look at the

evidence in a light most favorable to its admission, maximizing its probative value

and minimizing its undue prejudicial impact.” Id.

Here, the prior drug conviction is very similar to the charged offense and thus

highly probative to show Wright’s intent to both possess and distribute the charged

controlled substances. See Hargrove, 361 Ga. App. at 116 (2) (c) (iii). Regarding

prosecutorial need, the State had to overcome Wright’s defense that he did not

possessthe bag containing the drugs. Wright’ssole contention at trial wasthat he was

merely present at the scene, there were no witnesses who testified that the bag was

Wright’s, and Wright argued that he never made the statements admitting ownership. 

The majority confuses the prosecutorial need analysis by concluding that due

to the amount of drugs, the packaging, and scales, a juror would not conclude that the

perpetrator did not intend either to possess the drugs and gun or to distribute the

drugs. The question is not whether some hypothetical perpetrator intended to possess

the drugs, but whether Wright, who maintained he was merely present at the scene of

a crime with many other people, intended to possess the bag of drugs. To answer that

3
specific question, the prosecutorial need of a prior conviction for a similar crime was

high. “Thus, the State's need for evidence that [Wright] had committed similar crimes

wassignificant, which weighsin favor of admission under Rule 403.” Hargrove, 361

Ga. App. at 116-117 (2) (c) (iii). Additionally, the crimes only took place four years

apart and thus were not temporally remote from each other. 

Accordingly, keeping in mind that the exclusion of evidence under Rule 403

is an extraordinary remedy to be used only sparingly, I disagree with the majority’s

conclusion that the trial court abused its discretion in finding that the probative value

of Wright’s convictions was substantially outweighed by unfair prejudice. See

Hargrove, 361 Ga. App. at 117 (2) (c) (iii) (holding that the trial court did not abuse

its discretion in finding the probative value of the defendant’s prior drug convictions

was not substantially outweighed by unfair prejudice in defendant’s trial for other

drug related offenses); Moton v. State, 351 Ga. App. 789,793-794 (833 SE2d 171)

(2019) (same); Gunn v. State, 342 Ga. App. 615, 620-622 (1) (804 SE2d 118) (2017)

(where defendant failed to establish that the trial court abused its discretion for

admitting a prior drug conviction for the purpose of intent).

4