THIRD DIVISION

ELLINGTON, P. J.,

MCFADDEN, AND MERCIER, 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.

http://www.gaappeals.us/rules

March 3, 2016

In the Court of Appeals of Georgia

A15A1848. WILSON v. THE STATE.

MCFADDEN, Judge.

Kevin Wilson appeals from his conviction for aggravated assault against

William Cade. He challenges the sufficiency of the evidence, but it was sufficient to

support his conviction. He argues that the trial court erred in admitting evidence of

an earlier altercation he had with Cade’ssister (who was Wilson’sformer girlfriend);

but we hold that the trial court did not abuse his discretion in admitting that evidence

as other act evidence under OCGA § 24-4-404 (b), and consequently we do not reach

the trial court’s alternative ground for admitting it. Finally Wilson argues that he

received ineffective assistance because his trial counsel objected to only one of the

two grounds upon which the trial court admitted that evidence; but as it was
admissible, Wilson’s trial counsel was not ineffective in failing to object to it on an

alternative ground. We therefore affirm.

1. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his

criminal 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.” Jackson v. Virginia,

443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;

emphasis in original). “As long as there is some competent evidence, even though

contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s

verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001)

(citations and punctuation omitted).

Viewed in this light, the evidence showed that Wilson had been in a

relationship with Cade’s sister but the two had broken up in October 2011.

Nevertheless, Wilson continued to share an apartment with hisformer girlfriend, their

young child, and Cade, among others. On the morning of January 4, 2012, Wilson

intercepted his former girlfriend as she was leaving the apartment with the child in

her arms, approached her holding an open pocketknife with a six-inch blade, pointed

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the knife at her, backed her and the child into a corner outside the apartment,

threatened to cut her, and demanded thatshe give himthe child. Wilson took the child

into the apartment and his former girlfriend called the police. She did not press

charges against Wilson but told the police and Wilson that she wanted him out of the

apartment. She also told Wilson that she would pack his belongings for him to

retrieve. 

About 2:00 the next morning, Wilson returned to the apartment to retrieve his

belongings, which had been placed near the front door. He entered the bedroom he

had shared with hisformer girlfriend and began throwing things about and destroying

her personal property. Cade entered the room, and Wilson approached him, cursing,

talking about having pulled a knife on Cade’s sister, and “getting more and more . .

. hyped up.” Cade told Wilson to leave and the two began to argue. Wilson reached

for his knife and charged at Cade, who ran into another room; Wilson then grabbed

Cade around the waist and the two began fighting. During the fight, Wilson stabbed

Cade five times with the knife. 

This evidence authorized the jury to find that Wilson committed aggravated

assault against Cade. See OCGA § 16-5-21 (b) (2) (“A person commits the offense

of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any

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object, device, or instrument which, when used offensively against a person, is likely

to or actually does result in serious bodily injury.”). Although Wilson challenges the

credibility of some of the state’s witnesses regarding his fight with Cade, it was for

the jury, rather than this court, to determine those witnesses’ credibility and resolve

any conflicts or inconsistenciesin the evidence. Vega v. State, 285 Ga. 32, 33 (1) (673

SE2d 223) (2009).

2. Admission of “other acts” evidence under OCGA § 24-4-404 (b).

Pursuant to OCGA § 24-4-404 (b) (“Rule 404 (b)”), the trial court permitted

the state to introduce evidence of the earlier altercation between Wilson and his

former girlfriend for purposes other than to show Wilson’s character. Wilson argues

that this was error. We disagree.

“Rule 404 (b) permits the admission in cases of all sorts of evidence of ‘other

acts’ relevant to any fact of consequence in the determination of the action, so long

as the evidence is not offered to prove ‘the character of a person in order to show

action in conformity therewith.’” State v. Frost, 297 Ga. 296, 300 (773 SE2d 700)

(2015) (footnote omitted). It is “an evidentiary rule of inclusion which contains a nonexhaustive list of purposes other than bad character for which other acts evidence is

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deemed relevant and may be properly offered into evidence.” State v. Jones, 297 Ga.

156, 159 (2) (773 SE2d 170) (2015) (citations omitted).

Georgia employs a three-prong test to determine the admissibility of evidence

of other acts under Rule 404 (b): “(1) the evidence must be relevant to an issue other

than defendant’s character; (2) the probative value must not be substantially

outweighed by undue prejudice;(3) the governmentmust offer sufficient proof so that

the jury could find that defendant committed the act.” Bradshaw v. State, 296 Ga.

650, 656 (3) (769 SE2d 892) (2015) (citation and footnote omitted). As detailed

below, the trial court did not abuse his discretion in applying this test and admitting

the other acts evidence. See Curry v. State, 330 Ga. App. 610, 616 (1) (768 SE2d

791) (2015). (Because Wilson failed to provide the transcript of the Rule 404 (b)

hearing in the record on appeal, our review is limited to the trial record and the

transcript of the hearing on the motion for new trial, at which the Rule 404 (b) ruling

was discussed. See Smith v. State, 304 Ga. App. 708, 709 (1) (699 SE2d 742) (2010).)

(a) Prong one: relevance to an issue other than character. The trial court

admitted the evidence of Wilson’s altercation with his former girlfriend for the

purpose of proving his criminal intent, among other purposes. Wilson arguesthat this

purpose was improper because aggravated assault is a crime of general intent. See

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generally Cline v. State, 199 Ga. App. 532, 533 (2) (405 SE2d 524) (1991)

(“aggravated assault committed by means of a deadly or offensive weapon . . .

requires only a general criminal intent”) (citations omitted). But our Supreme Court

has held that “other acts evidence may be relevant under Rule 404 (b), without regard

to whether the charged crime is one requiring a specific or general intent, when it is

offered for the permissible purpose of showing a criminal defendant’s intent[.]”

Jones, supra, 297 Ga. at 162 (2) (citation omitted). And Wilson’s counsel argued to

the jury at trial that Wilson’s lack of criminal intent was “the biggest thing” in the

case. 

In this case, the state of mind required for the charged offense (aggravated

assault against Cade) wasthe same asthe state of mind required for the uncharged act

against Wilson’s former girlfriend (an act that also could constitute an aggravated

assault). In both instances, Wilson intentionally pulled a knife during an altercation.

See generally Dunagan v. State, 269 Ga. 590, 594 (2) (b) (502 SE2d 726) (1998)

(offense of aggravated assault can require “criminal intent to commit the acts which

caused the victim to be reasonably apprehensive of receiving a violent injury”).

“[W]hen the state of mind required for the charged and extrinsic offensesisthe same,

the first prong of the Rule 404 (b) test [relevance] issatisfied.” Bradshaw, supra, 296

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Ga. at 657 (3). Accord Silvey v. State, __ Ga. App. __, __ (1) (a) (__ SE2d __) (Case

No. A15A1139, decided Nov. 20, 2015). “Having determined that the evidence was

admissible as to intent . . . , we need not examine whether it was also admissible on

the [other issues for which the trial court admitted it].” Bradshaw, supra, 296 Ga. at

657 (3) n. 5 (citation omitted).

(b) Prong two: undue prejudice does not substantially outweigh probative

value. Wilson argues that the evidence of his earlier altercation with his former

girlfriend should have been excluded on the ground that, under OCGA § 24-4-403

(“Rule 403”), “[r]elevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice.” But “[i]t is only unfair

prejudice, substantially outweighing probative value, which permits exclusion of

relevant matter under Rule 403.” United States v. Terzado-Madruga, 897 F2d 1099,

1119 (B) (11thCir. 1990) (citation omitted; emphasisin original), cited byBradshaw,

supra, 296 Ga. at 658 (3). “Rule 403 is an extraordinary remedy that must be used

sparingly because it results in the exclusion of concededly probative evidence.”

United States v. US Infrastructure, 576 F3d 1195, 1211 (II) (B) (2) (11th Cir. 2009)

(citation omitted). Even in close cases, “the balance . . . is struck in favor of

admissibility in determining whether its probative value is outweighed by the danger

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of unfair prejudice.” Terzado-Madruga, supra, 897 F2d. at 1119 (B). Although

Wilson argues to this court that the probative value of evidence of the earlier

altercation was “low or non-existent,” the evidence was probative of the issue of his

intent, which, as mentioned above, his trial counsel argued to the jury was “the

biggest thing” in the case. The trial court did not abuse his discretion in balancing the

other act’s probative value against its prejudicial effect. See Bradshaw, supra, 296

Ga. at 657 (3).

(c) Prong three: proof that Wilson committed the other act. Although Wilson

argues that the evidence “was insufficient to show that this prior bad act even

occurred at all,” his former girlfriend testified that Wilson had accosted and

threatened her with the knife and another person testified to witnessing that

altercation. This evidence wassufficient for the jury to find by a preponderance of the

evidence that the other act was committed, thereby satisfying the third prong required

for the admission of the other act evidence under Rule 404 (b). Bradshaw, supra, 296

Ga. at 658 (3).

3. Admission of “other acts” evidence on alternative ground.

Wilson argues that the trial court erred in admitting the evidence of his

altercation with his former girlfriend on an alternative ground – that the altercation

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wasintrinsic to the subsequent aggravated assault against Cade. See generally United

States v. Wilson, 788 F3d 1298, 1313-1314 (II) (A) (11th Cir. 2015) (11th Cir. 2015)

(discussing admissibility of intrinsic evidence). Given our determination that the trial

court did not err in admitting the evidence under Rule 404 (b), we need not address

this claim of error.

4. Ineffective assistance of counsel.

Wilson argues that his trial counsel was ineffective in failing to challenge

admissibility of the evidence of his altercation with his former girlfriend as intrinsic

evidence. We find no merit to Wilson’s argument because, as discussed above, the

evidence was admissible on another ground, under Rule 404 (b). See Daughtie v.

State, 297 Ga. 261, 266 (4) (773 SE2d 263) (2015) (counsel is not obligated to object

to admissible evidence).

Judgment affirmed. Ellington, P. J., and Mercier, J., concur.

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