THIRD DIVISION

DOYLE, P. J.,

HODGES 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

May 9, 2024

In the Court of Appeals of Georgia

A24A0518. EBERSOLE v. THE STATE.

WATKINS, Judge.

A jury found Johnny L. Ebersole guilty of criminal attempt to commit rape and

two counts of aggravated assault.1 Ebersole appeals following the denial of his motion

for new trial. He arguesthat the trial court erred for admitting his prior conviction for

child molestation, for overruling his objection to the State’s mention of the child

victim’s age when the same was not in evidence, for failing to grant a mistrial when the

State improperly commented on the exercise of his right to remain silent during

closing, and for admitting prejudicial evidence of his interest in tarot cards and “the

1

 See OCGA § § 16-4-1; 16-6-1 (a) (1); 16-5-21 (a) (1), (3).
devil.”He also contends that the cumulative effect ofthese errors warrant a newtrial.

For the reasons set forth below, we affirm.

On appeal from a criminal conviction, we viewthe evidence in the

light most favorable to the jury’s verdict, with the defendant no longer

enjoying a presumption ofinnocence.We neitherweigh the evidence nor

determine witness credibility, which are tasks that fall within the

exclusive province of the jury, but only determine if the evidence was

sufficient for a rational trier of fact to find the defendant guilty of the

charged offense beyond a reasonable doubt.2

So viewed, the evidence shows that Ebersole and the victim had been in a

romantic relationship for a few weeks as of September 2020. The victim did not have

a stable residence at the time, so she would often come to Ebersole’s home and sleep

in his room with him. On occasion the victim had consensualsex with Ebersole in his

room. On the night of September 22, 2020, the victim went to Ebersole’s home with

a beer he had requested and Ebersole warmed her up a plate of food. The pair went

into Ebersole’s room where Ebersole became aggressive. Ebersole demanded the

victimhave sex with him andwanted her to take off her clothes. The victim responded

that she was not interested in sex and that she just wanted to finish her meal and lie

2

(Citations omitted.) Allison v.State, 356 Ga.App. 256 (846 SE2d 222) (2020).

2
down. Ebersole was upset the victim would not have sex with him, so he told her to

leave. The victim went outside to her car, but Ebersole followed her and told her to

come back inside.

Once the victim was back in Ebersole’s room his demeanor changed. He again

told her to take her clothes off and again she refused. He told her multiple times that

he was “the devil.” Ebersole continued to demand sex while the victim refused, and

he eventually pushed her down onto his bed. Ebersole then made the victim take her

clothes off, and he held her down and choked her by putting his hands around her

throat. The victim felt dizzy like she was going to pass out. Ebersole attempted to put

his penisinside her vagina, but it did not go all the way inside. Ebersole again said that

he was “the devil”and that he would kill her. Ebersole began chanting things and

“sounded like a demonic something.” The chanting wasin a language the victim had

never heard before. Eventually Ebersole told the victim to “just f*cking leave” and

she got dressed and went crying to her car.

The victim did not call 911, but officers arrived on the scene. After being

arrested, Ebersole told an officer “I curse you beyond measure.” He also screamed

3
and started speaking in a strange language. Within the strange language Ebersole can

be heard saying “Satan” and “Lucifer.”

The victim did not have anywhere to stay that night, so Ebersole’s mother,

anotherresident of the house, invited the victim to stay the night in Ebersole’s room.

The victim lay in Ebersole’s bed, but she could not sleep.

As a result of this event, Ebersole was indicted for criminal attempt to commit

rape, aggravated assault for assaulting the victim while trying to rape her, and

aggravated assault for strangling the victim. During the trial of the case, over

Ebersole’s objection, the State introduced into evidence a copy of a prior indictment

for childmolestation. The parties stipulated that the prior case had been resolvedwith

an Alford3plea and that Ebersole had been sentenced in that case. The jury found

Ebersole guilty of all three counts. Ebersole moved for a new trial, which was denied,

and this appeal followed. 

1. In three claims of error, Ebersole contends that the trial court erred in

admitting evidence of his prior conviction for child molestation. We disagree.

3

See North Carolina v.Alford, 400 U. S. 25 (91 SCt 160, 27 LEd2d 162) (1970).

4
Our law is clear that a “trial court’s rulings on the exclusion or admission of

evidence are reviewed for a clear abuse of discretion.”

4 With this principal in mind,

we turn to Ebersole’s specific claims of error.

(a) Compliance with the statutory deadline to notify Ebersole of the State’s intent to

introduce a similar transaction

Ebersole first contends that the trial court abused its discretion in admitting the

similartransaction evidence because the State did not comply with OCGA§ 24-4-413

asit did nottimely produce incident reports or statements of the victim from the prior

case. OCGA § 24-4-413

5

 provides, in relevant part:

(a)In a criminal proceeding in which the accused is accused of an offense

of sexual assault, evidence of the accused’s commission of another

offense ofsexual assaultshall be admissible andmay be considered for its

bearing on any matter to which it is relevant.

(b) In a proceeding in which the prosecution intends to offer evidence

under this Code section, the prosecutor shall disclose such evidence to

the accused, including statements of witnesses or a summary of the

substance of any testimony that is expected to be offered, at least ten

4 Davis v. State, 301 Ga. 397, 399 (2) (801 SE2d 897) (2017).

5 The State does not argue that the evidence was admissible pursuant to any

other statute, so our analysis herein is limited to OCGA § 24-4-413.

5
days in advance of trial, unless the time is shortened or lengthened or

pretrial notice is excused by the judge upon good cause shown.

Here, the State provided a notice of intent to present evidence of the prior

similar transaction on February 25, 2022. In that notice, the State identified the prior

conviction for child molestation and attached the indictment for the prior case to its

notice. The State said that it intended to prove the prior transaction through the

testimony of the child victim in that case. On April 15, 2022, Ebersole moved to

exclude the evidence of the prior child molestation on the grounds that it was

irrelevant and that the State had not complied with the notice requirement of OCGA

§ 24-4-413. Specifically, Ebersole contended that an incident report concerning the

child molestation had been provided that day, which was only three days in advance

of the trial. The parties argued the admissibility of the conviction before the start of

the trial, and the trial court ruled that evidence of the similar transaction would be

admissible. Although Ebersole maintained his objection to the admissibility of the

evidence, the parties stipulated that the prior charge had been resolved through an

Alford plea and that Ebersole had been sentenced on the charge.

6
Here, as outlined above, the State timely notified Ebersole of its intent to

introduce evidence of the prior child molestation conviction and attached a copy of

the indictment to the notice. Although no statements, reports, or other documents

were timely provided, the only evidence ultimately admitted about the child

molestation was the timely provided indictment and the parties’ stipulation

concerning the plea and sentencing. Accordingly, the only evidence presented to the

jurywas what had been provided to Ebersole more than ten days before trial, and thus

the trial court did not abuse its discretion.6

(b) Relevance of prior child molestation

Ebersole contends that the evidence of the prior child molestation was

irrelevant and unduly prejudicial and, thus, should not have been admitted. 

At the outset, we recognize that OCGA § 24-4-413 is “a rule of inclusion, with

a strong presumption in favor of admissibility, and proving a propensity to commit sex

6 The partialreliance by the State and the trial court on Ebersole’s pre-existing

knowledge of his conviction as a basis for admitting the evidence, however, is

improper. Presumably, most criminal defendants are aware of prior accusations of or

convictionsfor sexual assault against them; nonetheless, OCGA§ 24-4-413 states that

“the prosecutor shall disclose such evidence to the accused”at least ten days in

advance of trial.

7
crimes or an inappropriately lustful disposition are legally permissible purposes for

admitting evidence of this sort.”

7

With regard to the relevance ofthe prior childmolestation conviction, Ebersole

contendsthat the crime ofmolestation is too dissimilar to the crime of attempted rape

to be relevant, largely due to the age difference between the victims. “Evidence is

relevantif it has ‘any tendency’to prove or disprove a fact, whereas the probative value

of evidence derives in large part from the extent to which the evidence tends to make

the existence of a fact more or less probable.”

8

Prior commission of a sexual assault

was “relevant to prove [Ebersole’s] intent and lustful disposition in the current case,

and to disprove his claim that the victim’s allegation of [an attempted] forced sexual

encounter was fabricated.”

9

7

(Citations and punctuation omitted.) State v. Ippisch, 366 Ga. App. 501, 502

(883 SE2d 162) (2023).

8

(Citation omitted; emphasis in original.) McIver v. State, 314 Ga. 109, 145 (3)

(875 SE2d 810) (2022).

9 Robinson v. State, 342 Ga. App. 624, 635 (4) (a) (805 SE2d 103) (2017)

(holding that the trial court did not abuse its discretion in permitting evidence of prior

attempted sexual assault in a trial where the defendant was charged with aggravated

child molestation).

8
At the same time, in considering extrinsic evidence of another offense,

the trial court must balance the relevance of the evidence against its

potential to cause unfair prejudice to the defendant. This balancing

requires a common sense assessment of all the circumstances

surrounding the extrinsic offense, including prosecutorial need, overall

similarity between the extrinsic act and the charged offense, as well as

temporal remoteness. On appeal, a trial court’s decision to admit

evidence of this nature is reviewed only for abuse of discretion.10

Exclusion pursuant to OCGA § 24-4-403

is an extraordinary remedy — particularly when the evidence is already

strongly presumed to be admissible. Exclusion is appropriate only when

the demonstrable probative value . . . is substantially outweighed by the

danger of unfair prejudice.Not just a little outweighed, butsubstantially.

And prejudice is not “unfair” simply because it tends to inculpate the

defendant in an awful crime. Rather, it is unfair only if it creates an

undue tendency to suggest decision on an improper basis such as an

emotional one.Therefore, when applying [OCGA§ 24-4-403] balancing

to evidence of prior offenses of sexual assault, the court must take into

account that such evidence is naturally prejudicial. However, generally,

it is not unfairly prejudicial; rather it is prejudicial for the same reason it

10

(Citations and punctuation omitted.) State v. Berrien, 364 Ga. App. 217, 225

(2) (874 SE2d 430) (2022).

9
is probative: it tends to prove the defendant’s propensity to engage in

sexual assault.11

When analyzing the probative value of a similar transaction, this Court has held

that it “depends on two things: (1) the need to establish the fact for which the

evidence is offered, which in turn depends on that fact’s significance in the case and

whether or not that fact is disputed, and (2) the ‘marginal worth’ of the evidence in

establishing the fact, which depends on what other evidence is available.”

12

Here, the State had a strong prosecutorial need to establish that the victim’s

somewhat bizarre account – that Ebersole attempted to rape and strangle her while

chanting about “the devil” – was credible. “The credibility of a witness is always a

material fact in issue at a criminal trial.”

13 The marginal worth of the similar

transaction was high because there were no other witnesses to what happened in

Ebersole’s bedroom and Ebersole’s defense was to attack the victim’s credibility by

11

(Citations and punctuation omitted; emphasis in original.) Ippisch, 366 Ga.

App. at 504.

12 Berrien, 364 Ga. App. at 226 (2) (b).

13 Marlow v. State, 337 Ga.App. 1, 4 (1) (b) (785 SE2d 583)(2016), disapproved

of on other grounds by Quiller v. State, 338 Ga. App. 206 (789 SE2d 391) (2016).

10
presenting evidencewhich conflictedwith her testimony.14Ebersole’s mother and the

girlfriend of Ebersole’s brother, who were both in the house on the night in question,

collectively testified that Ebersole was a religious man who read the Bible frequently,

thatthey did not hear any screaming by the victimthrough the thin walls ofthe house,

that the victim only left the house once instead of twice, and that the victim told

Ebersole’s mother “I’m so sorry. I guess I ruined your son’s life” after Ebersole was

arrested. In essence, Ebersole’s defense was that the victim fabricated the allegations

so she could have a place to sleep that night after he kicked her out due to her refusal

to have sex with him. “The State’s extrinsic evidence that [Ebersole] had committed

a [prior] sexual assault had the tendency to bolster the credibility of the victim by

demonstrating that her circumstances were not unique.”

15

“On the otherside of the ledger, the risk of unfair prejudice from this evidence

isrelatively low.”

16 The only evidence provided to the jury was the indictment and the

14

See Berrien, 364 Ga. App. at 226 (2) (b) (“Here, the issue of consent is both

essential and disputed, so the need to establish this fact is strong. And the marginal

worth of the other-act evidence is high because the other available evidence on

consent just pits the victim’s word against [the defendant’s]).

15 Marlow, 337 Ga. App. at 4 (1) (b).

16

 (Punctuation omitted.) Berrien, 364 Ga. App. at 227 (2) (b).

11
stipulation concerning the plea and sentencing. The jury heard no evidence detailing

the child molestation other than the language from the indictment that Ebersole

touched the vaginal area and breasts of a child. They did not hear fromthe child victim

personally or learn any further details about what transpired betweenEbersole and the

child victim. Moreover, the jury was charged that, through hisAlford plea to the child

molestation charge,Ebersole“protest[ed]hisinnocence, butnonetheless [pled] guilty

by knowingly, voluntarily[,] and understandingly consenting to the imposition of a

sentence.” Indeed, learning that Ebersole was actually sentenced for the child

molestation minimized the prejudice of the evidence because it made “it less likely

that the jury would want to punish [Ebersole] for this past conduct rather than the

charged crimes.”

17 Accordingly, we hold that the trial court did not abuse its

discretion in admitting this relevant evidence pursuant to OCGA § 24-4-413.

(c) Compliance with the Confrontation Clause

Initially, Ebersole moved to exclude the admission of evidence concerning the

child molestation conviction on the groundsthat it was irrelevant, unduly prejudicial,

and that the State did not give proper notice. Ebersole never objected to the evidence

17

(Citation omitted.) Brooks v. State, 365 Ga. App. 711, 725 (5) (880 SE2d 226)

(2022).

12
on the basisthat it violated the Confrontation Clause.After the State rested,Ebersole

moved for a mistrial, which was denied, on the ground that the introduction of the

evidence violated the Confrontation Clause.This wasthe firstmentionof an argument

based on the Confrontation Clause.

Ebersole’sfailure to move for a mistrial on this ground at the time the evidence

was introduced means the denial of a mistrial is not preserved for appellate review.

“To ensure appellate review of the denial of a motion for mistrial, a defendant

generally must preserve the issue at trial. To do that, the defendant first must make

a motion at the earliest opportunity in the trial court.”

18 “If the defendant did not

make a contemporaneous motion for a mistrial at the time the defendant became

aware of the matter giving rise to the motion, then the defendant has waived review

of this issue on appeal.”

19

18

(Citations omitted.) Bates v. State, 317 Ga. 809, 818 (3) (b) (896 SE2d 581)

(2023).

19

(Citation and punctuation omitted.)Thomas v. State, 310 Ga. 579, 581 (2) (853

SE2d 111) (2020).

13
To the extent that Ebersole’s claim of error seeks to assert an evidentiary

objection to the introduction of the similar transaction based on the Confrontation

Clause, Ebersole did not preserve ordinary appellate review.

In order to preserve an objection for ordinary appellate review, the

specific ground of the objection must be made at the time the challenged

evidence is offered. . . . [Here, i]t is clear from the record that the . . .

motion for mistrial [grounded on the Confrontation Clause was] not

timely, as [it was] not made contemporaneously with the introduction of

the [similar transaction] evidence but rather [after the State rested].20

Resultingly, we review this claim for plain error, and Ebersole “must point to

an error that was not affirmatively waived, the error must have been clear and not

open to reasonable dispute, the error must have affected his substantialrights, and the

errormust have seriously affectedthe fairness,integrity or public reputation ofjudicial

proceedings.”

21 Ebersole fails to meet this burden. Our Supreme Court recently held

that

20

(Citations and punctuation omitted; emphasis supplied.) Jones v. State, 317

Ga. 466, 472 (2) (893 SE2d 741) (2023).

21

(Citation omitted.) McKinney v. State, 307 Ga. 129, 134 (2) (834 SE2d 741)

(2019).

14
[a]n error cannot be plain where there is no controlling authority on

point. [Ebersole] has identified no controlling authority – nor have we

found any – supporting his argument that [introduction of evidence of a

similar transaction through a copy of an indictment] . . . is . . .

inadmissible under the Confrontation Clause. . . . Moreover, although

[the Supreme Court of Georgia] recently held that the Confrontation

Clause is violatedwhen convictions of other people are admitted against

a defendant, [that court] explained that nothing about this scenario can

be read to suggest that a particular defendant’s prior conviction could

not be used against that same defendant in his or her own case under the

proper circumstances. Because there is no controlling authority

supporting [Ebersole’s] argument, he has failed to show a clear error.22

As a result, whether interpreted as a claim that the trial court failed to grant a mistrial

or as an evidentiary objection raised for the first time on appeal, this claim of error

provides no basis for reversal.

2. Ebersole next contends that the trial court erred in overruling his objection

to the State’s mention of the child victim’s age during closing when the same was not

in evidence and that it further erred in not instructing the jury to disregard the remark

or to admonish the State. We find no reversible error.

Georgia law provides that

22

(Citations and punctuation omitted; emphasis in original.) Id. at 134-135 (2).

15
[w]here counsel in the hearing ofthe jury make statements of prejudicial

matters which are not in evidence, it is the duty of the court to interpose

and prevent the same. On objection made, the court shall also rebuke the

counsel and by all needful and proper instructions to the jury endeavor

to remove the improper impression from their minds; or, in his

discretion, he may order a mistrial if the prosecuting attorney is the

offender.23

“The type of instruction that is necessary after the prosecuting attorney makes a

statement about a prejudicial matter not in evidence will vary depending upon the

prejudicial impact of the prosecutor’s statement, with specific instructions being

necessary in particularly prejudicial cases, and general instructions [that closing

statements are not evidence] sufficing in most cases.”

24

Here, during its closing argument the State said: “How dowe know[Ebersole]

doesn’t care about the desires of the people that he has sexual relations with? . . .

Because he is convicted of child molestation. Do you think the 11-year-old girl in

Count 1 ofthat conviction consented to himtouchingher?”Ebersole objected because

the evidence presented at trial did not include the specific age of the victim of the

23

 OCGA § 17-8-75.

24

(Citation and punctuation omitted.) Jones v. State, 292 Ga. 656, 662 (2) (740

SE2d 590) (2013).

16
childmolestation.The trial court overruledEbersole’s objectionandimmediately told

the jurors that what the attorneys said in closing was not evidence.

The trial court erred in overruling Ebersole’s objection because he was correct

that the specific age of the victim was not in evidence. All that was in evidence was

that she was a child under the age of 16. “[A]lthough such a failure can constitute

reversible error, the error is subject to application of harmless error analysis.”

25 Here,

we hold the error was harmless. The remark about the victim’s age was fleeting, and

Ebersole immediately objected. Although the trial court failed to perform the duty

imposed by OCGA § 17-8-75, it did immediately tell the jury that closing statements

were not evidence and repeated that admonition during the charge of the jury.

Moreover, it is unlikely that the jury would have significantly different feelings about

Ebersolemolesting an 11-year-old as opposed to a child of any other age under 16, such

that any prejudice from the remark was minimal. We hold that it is “highly probable

25

(Citation and punctuation omitted.) Walker v.State, 281Ga. 521, 524 (5) (640

SE2d 274) (2007).

17
that the trial court’s error in failing to sustain [Ebersole’s] objections and perform its

duty under OCGA § 17-8-75 did not contribute to the verdict.”

26

3. Ebersole contends the trial court erred in failing to grant a mistrial when the

State commented on the exercise of his right to remain silent during the State’s

closing argument. Ebersole waived this issue.

During closing argument, the State made the following statement:

Y’all, this is a rape-type case. This comes down to two people in that

room; one was [the victim], and the other is [Ebersole]. And we only

heard from one of them, and now [Ebersole] doesn’t have to testify. He

has no burden to testify. He doesn’t have to put up any witnesses, he has

26

Id.(holding that the trial court’sfailure to fulfill its duty under OCGA§ 17-8-

75 was harmless “[b]ecause the improper statement involved speculation about a

potential defense appellant clearly did not assert at trial, because it consisted of only

one sentence spoken simultaneously with defense counsel’s prompt objection, and

because the trial court in preliminary instructions before closing told the jury that the

argument of counsel was not evidence[.]); Fincher v. State, 276 Ga. 480, 482-483 (4)

(578 SE2d 102) (2003) (holding that a misstatement in closing about the lack of blood

on the porch and the misattribution of a witness’ statement did not likely contribute

to the verdict because the statement about the blood “was arguably no more than an

overstatement (most of the blood had been washed off the porch) of the evidence,

because the mistaken attribution oftestimony wasinsignificant in light of the fact that

severalwitnesses had given similartestimony regarding [the defendant’s] statements

of anger toward [the victim], and because the trial court told the jury in preliminary

instructions and the prosecuting attorney reminded the jury in closing argument that

the argument of counsel was not evidence[.]”).

18
no burden of proof, but we only heard from one of those individuals.

That’s it.

Ebersole objected that the statement was a comment on the exercise of his right to

remain silent. The trial court interjected and told the jury that Ebersole had no burden

of proof or obligation to testify.At no time did Ebersole move for a mistrial as a result

of this comment during closing. As stated above, Ebersole’s failure to move for a

mistrial on this ground means that this issue is not preserved for appellate review.

27

4. Ebersole contends that the trial court erred in permitting admission of

evidence concerning his interest in tarot cards and “the devil” because it was

irrelevant and unfairly prejudicial. We disagree.

Attrial, the victim testified about Ebersole’s repeateddiscussion of“thedevil”

and interest in tarot cards prior to the assault. She also testified about Ebersole’s

demeanor during the assault: Ebersole telling her he was “the devil” and that he

would kill her; Ebersole’s chanting and speaking in an unknown language; and the

victim’sopinionthatEbersole sounded“demonic.”Further, the juryheardtestimony

from the arresting officer and viewed his body camera footage depicting Ebersole

27 Bates, 317 Ga. at 818 (3) (b).

19
cursing the deputy, chanting in an unknown language, and referencing “Satan” and

“Lucifer.”

As previously stated,“[e]vidence isrelevant if it has ‘any tendency’ to prove or

disprove a fact[.]”

28

 The evidence at issue was relevant and intrinsic evidence.

Evidence is admissible as intrinsic evidence, rather than extrinsic

evidence subject to Rule 404 (b), when it is (1) an uncharged offense

arising from the same transaction orseries oftransactions as the charged

offense; (2) necessary to complete the story of the crime; or (3)

inextricably intertwined with the evidence regarding the charged

offense.29

The Supreme Court of Georgia has held that 

evidence of other acts is “inextricably intertwined” with the evidence

regarding the charged offense if it forms an integral and natural part of

thewitness’s accounts ofthe circumstances surrounding the offenses for

which the defendant was indicted. And this sort of intrinsic evidence

remains admissible even if it incidentally places the defendant’s

character at issue.

30

28

 (Citation omitted; emphasis in original.) McIver, 314 Ga. at 145 (3) (a).

29

(Citations and punctuation omitted.) Harris v. State, 310 Ga. 372, 377 (2) (b)

(850 SE2d 77) (2020).

30

(Citations and punctuation omitted.)Williams v.State, 302 Ga. 474, 486 (IV)

(d) (807 SE2d 350) (2017).

20
Here, even though it may have reflected negatively on his character, the

evidence of Ebersole’s fascination with tarot cards and invocation of “the devil” was

both relevant and inextricably intertwined with the charged offenses as he was

referencing “the devil” during and immediately after the assault.

“Evenwhen evidence is intrinsic, however, it must also satisfy [OCGA§ 24-4-

403].Itis within the trial court’s sound discretion to determine whetherto admit such

evidence, so we review a trial court’s ruling admitting evidence as intrinsic for an

abuse of that discretion.”

31

Relevant intrinsic evidence 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. There is

no mechanical solution for this balancing test, and a trial court must

undertake in each case a considered evaluation of the proffered

justificationforthe admission of such evidence andmake an independent

determination. [The Supreme Court of Georgia has] explained that this

balance should be struck in favor of admissibility.32

31

 (Citations and punctuation omitted.) Harris, 310 Ga. at 377 (2) (b).

32

(Citations and punctuation omitted.) Heade v. State, 312 Ga. 19, 26-27 (3)

(860 SE2d 509) (2021).

21
We hold that the trial court did not abuse its discretion in failing to exclude this

evidence on the grounds that it was unfairly prejudicial. The evidence was highly

probative as it would have been impossible for the State to present the charged

offenses in full if the evidence was excluded, and the high probative value of the

evidence was not substantially outweighed by unfair prejudice even though it may

have incidentally placed Ebersole’s character at issue.33

5.Lastly, Ebersole contendsthatthe cumulative effect ofthe trial court’s errors

warrant a new trial. We disagree.

“Georgia courts considering whether a criminal defendant is entitled to a new

trial should consider collectively the prejudicial effect of trial court errors and any

33

See Smith v. State, 307 Ga. 263, 273 (2) (c) (834 SE2d 1) (2019) (“Because

[the witnesses’] statements were admissible as intrinsic evidence and because the

probative value of such evidence was not substantially outweighed by the danger of

unfair prejudice to [the defendants], the trial court did not abuse its discretion by

admitting [these] statements. This enumeration of error therefore fails.”); see also

Harris, 310 Ga. at 382 (2) (b) (holding that the trial court did not abuse its discretion

in failing to exclude intrinsic evidence pursuant to OCGA § 24-4-403 that the

defendant broke items in the home of another woman who then obtained a temporary

protective order out of fear for her life after she made the defendant leave her home

in a case where the defendant was charged with soon thereafter murdering a woman

who was about to make him leave her home).

22
deficient performance by counsel — at least where those errors by the court and

counsel involve evidentiary issues.”

34

To establish cumulative error, [Ebersole] must showthat (1) atleast two

errors were committed in the course of the trial; and (2) considered

together along with the entire record, the multiple errors so infected the

jury’s deliberation that they denied [Ebersole] a fundamentally fairtrial.

However, when reviewing a claim of cumulative prejudice, [appellate

courts] evaluate only the effects of matters determined to be error, not

the cumulative effect of non-errors.35

This Court has not identified two errors made by the trial court, accordingly, this

claim is without merit.

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

34

 State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020).

35

(Citations and punctuation omitted.) Flood v. State, 311 Ga. 800, 808-809 (1)

(d) (860 SE2d 731) (2021).

23