FIRST DIVISION

DOYLE, C. J.,

ANDREWS and RAY, 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

February 16, 2017

In the Court of Appeals of Georgia

A16A1954. PERSON v. THE STATE.

RAY, Judge.

Following a jury trial, Ladarius Person was convicted of one count each of

aggravated assault, possession of a firearm during the commission of a felony, and

possession of a firearm by a convicted felon. Person appealsfromhis convictions and

the denial of his motion for new trial, contending that the trial court erred (1) in

admitting testimony of a prior difficulty involving a witness; and (2) by commenting

on the evidence at trial. Person also contends that he received ineffective assistance

of counsel. For the following reasons, we affirm.

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

favorable to support the jury’s verdict, and the defendant no longer enjoys a

presumption of innocence.” (Citation omitted.) Hall v. State, 335 Ga. App. 895, 895
(783 SE2d 400) (2016). The evidence at trial showed that on January 28, 2012, the

victim, Jarvis Meadows, had just arrived at his residence when Person’s girlfriend,

Kawantis Haynes, approached Meadows and asked him for gas money and a ride to

the gas station. Haynes explained that she had taken Person’s car without permission

and had run out of gas on the way to Meadow’s residence. Meadows agreed to assist

Haynes, and the two drove to a gas station with a gas container to purchase some gas.

Meadows then took Haynes back to Person’s car. As Meadows was pouring the

contents of the gas container into the car, Person arrived in another vehicle and an

argument between Haynes and Person ensued. When Person slapped Haynes,

Meadows came to her defense by punching Person in the face. Person then pulled out

a handgun and chased Meadows down the street. 

An eyewitness, Bertha Harris, gave a consistent account of the incident. Harris

testified that she was standing at her front door when she observed two men and a

woman “scuffling” in the street in front of her home. Harris further testified that she

observed one of the men pull out an object that looked like a handgun and chase the

other man and woman down the street. 

After Person pulled out the handgun, Meadowsran about three blockstowards

his house before again encountering Person, who was now in a vehicle. According

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to Meadows, Person pointed the handgun out of the window and started shooting at

him, striking him once in the hip. 

At trial, the State was allowed to elicit testimony from Meadows concerning

an earlier incident in which Meadows had intervened in a physical altercation

between Person and Haynes. 

In the indictment, Person was charged with two counts of aggravated assault,

one for pointing a handgun at Meadows(Count 1) and the other for later shooting the

handgun at him (Count 2). Person was also charged with possession of a firearm

during the commission of a felony (Count 3) and possession of a firearm by a

convicted felon (Count 4). The trial court had initially bifurcated the proceedings so

that the jury would not be aware that Person had been charged with possession of a

firearm by a convicted felon until it had reached a verdict on the other counts of the

indictment. However, Person chose to testify in his own defense at trial and, during

his testimony on direct, admitted that he had a prior felony conviction for possession

of marijuana with intent to distribute. At the conclusion of Person’s testimony, the

State asked the trial court to read to the juryCount 4 of the indictment, which charged

Person with possession of a firearm by a convicted felon. The State then moved to

admit a certified copy of his prior felony conviction into evidence for the purposes

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of impeachment, as well as for the purposes of proving Count 4 of the indictment.

Person’s trial counsel stated that he had no objection to the State’s requests, and the

trial court read Count 4 of the indictment to the jury and admitted the certified copy

of Person’s prior felony conviction into evidence. 

After considering the above evidence, the jury convicted Person of aggravated

assault for pulling out the handgun and pointing it at Meadows, possession of a

firearmduring the commission of a felony, and possession of a firearmby a convicted

felon. The jury found Person not guilty of the remaining charge of aggravated assault,

which had alleged that Person shot at Meadows with a handgun. This appeal ensued.

1. Person contends that the trial court erred in admitting the evidence of the

prior difficulty between Person and Haynes. Specifically, he argues that Haynes was

not the alleged victim of the aggravated assault offenses for which Person stood

charged and, thus, that the State was required to provide reasonable notice of its

intention to introduce evidence of the prior difficulty pursuant to OCGA § 24-4-404

(b). We find his argument to be unavailing.

Pursuant to OCGA § 24-4-404 (b),

[e]vidence of other crimes, wrongs, or acts shall not be admissible to

prove the character of a person in order to show action in conformity

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therewith.It may, however, be admissible for other purposes, including,

but not limited to, proof of motive, opportunity, intent, preparation, plan,

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

in a criminal proceeding shall provide reasonable notice to the defense

in advance of trial, unless pretrial notice is excused by the court upon

good cause shown, of the general nature of any such evidence it intends

to introduce at trial. Notice shall not be required when the evidence of

prior crimes, wrongs, or acts is offered to prove the circumstances

immediately surrounding the charged crime, motive, or prior difficulties

between the accused and the alleged victim.

(Emphasis supplied.) It is well settled that “[a] trial court’s decision to admit other

acts evidence will be overturned only where there is a clear abuse of discretion.”

(Citation and punctuation omitted.) Green v. State, 339 Ga. App. 263, 265 (1) (793

SE2d 156) (2016).

On the morning of trial, the State made a motion to allow the introduction of

the prior difficulty in which Meadows observed Person physically attack Haynes,

causing Meadows to come to Haynes’s defense. The State sought to introduce such

evidence to show Person’sintent andmotive, arguing that the prior difficulty between

Person and Haynes “is what set the stage” for the crime against Meadows and the

resulting charges for which Person was on trial. Over Person’s objection, the trial

court allowed testimony concerning the prior difficulty to be admitted into evidence. 

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Meadowstestified that, two or three months before the incident in question, he

observed Person grabbing Haynes “like he’s fixing to choke her.” When Meadows

intervened in that altercation, Person relented and left the scene. With regard to the

incident for which Person was on trial, Meadows testified that Person physically

assaulted Haynes and Meadows intervened again, only this time Person pulled out a

handgun. 

For there to be a probative connection between the prior difficult[y] and

the present case, there must be some link of association, something

which draws together the preceding and subsequent acts, something

which gives color of cause and effect to the transaction, and sheds light

upon the motive of the parties.

(Citation and punctuation omitted.) Sheppard v. State, 267 Ga. 276, 279 (3) (476

SE2d 760) (1996).

Although Person is correct that Haynes is not the victim of the crimes for

which Person stood trial in this case, the prior difficulty that the trial court admitted

into evidence did not involve only Person and Haynes. The prior difficulty also

involved Meadows, who felt compelled to confront Person during both altercations

between Person and Haynes. See Sheppard,supra at 277-279 (3) (testimonyregarding

defendant’s prior difficulties with a witness was admissible because the victim was

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involved in some of those prior difficulties and the circumstances leading up to the

charged crime stemmed from the defendant’s prior difficulties with the witness).

Thus, Meadows’s acts of intervening in both of the physical altercations between

Person and Haynes was admissible to show the circumstances surrounding the

charged crimes and the state of feelings between Person and Meadows that existed

at the time of the crimes in this case. Furthermore, evidence of the prior difficulty

“draw[s] together the preceding and subsequent acts and give[s] color of cause and

effect to the transaction,” shedding light upon the motive of the parties. (Citation and

punctuation omitted.) Id. at 279 (3). Without showing Person’s previous physical

abuse of Haynes, the State would have been unable to adequately explain Meadows’s

decision to intervene in the subsequent altercation between Person and Haynes or to

demonstrate the level of hostility that existed between Person and Meadows at the

time of the physical confrontation which resulted in the chargesfor which Person was

prosecuted. Id.

Based on the evidence of Meadows’s intervention in the two altercations

between Person and Haynes, a jury would be authorized to conclude that Person’s

actions toward Meadows was motivated by his desire to retaliate against Meadows

for continuing to intervene in Person’s physical abuse of Haynes. Thus, the trial court

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was authorized to find that the prior difficulty was relevant to show motive, which is

“the reason that nudges the will and prods the mind to indulge the criminal intent.”

(Citation and punctuation omitted.) Anthony v. State, 298 Ga. 827, 832 (4) (785 SE2d

277) (2016).

Lastly, as the prior difficulty was offered to prove the circumstances

immediately surrounding the charged crime and the motive, the State was not

required to provide notice in advance of trial of its intent to introduce such evidence.

See OCGA § 24-4-404 (b).

Based on the grounds asserted by Person on appeal, we conclude that the trial

court did not abuse its discretion in admitting evidence of the prior difficulty.

2. The more interesting issuesin this case surround Person’s decision on direct

examination to admit that he had previously been convicted of a felony, such

conviction which was the predicate for the charge of possession of a firearm by a

convicted felon (Count 4). The trial court had bifurcated the proceedings so that the

jury would not be aware of Person’s conviction until it had passed judgment on the

other charges. 

(a) Following Person’stestimony on direct, the State moved to admit a certified

copy of his conviction into evidence for the purposes of impeachment, as well as for

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the purposes of proving the offense of possession of a firearm by a convicted felon

in Count 4 of the indictment. When defense counsel stated that he had no objection,

the trial court ruled that the certified copy of the conviction would be admitted “in

regard to each one of the elements that [the prosecuting attorney] juststated.” Person

now contends that the trial court’s statement was an improper comment on the

evidence and an expression of opinion as to Person’s guilt. We disagree.

Pursuant to OCGA § 17-8-57, a judge is not allowed to express or intimate to

the jury an opinion as to whether a fact at issue has or has not been proved or as to the

defendant’s guilt. On appeal, we review alleged violations of the statute under the

plain error standard, even if the aggrieved party fails to object at trial. See State v.

Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

After our review of the colloquy between the trial court and counsel, we

conclude that the trial court did not express or intimate its opinion with regard to

Person’s guilt or make a statement with respect to what had been proven. Rather, the

trial court was announcing its ruling on the admissibility of the evidence and the

purposes for which the jury could consider it. OCGA § 17-8-57 “does not generally

extend to colloquies between the judge and counsel regarding the admissibility of

evidence[,] . . . [and] remarks of a judge assigning a reason for his ruling are neither

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an expression of opinion nor a comment on the evidence.” (Citation and punctuation

omitted.) Pyatt v. State, 298 Ga. 742, 747 (3) (784 SE2d 759) (2016). Accord Graves

v. State, 322 Ga. App. 24, 27 (1) (743 SE2d 582) (2013) (“Pertinent remarks made by

a trial court in discussing the admissibility of evidence or explaining its rulings do not

constitute prohibited expressions of opinion”) (citations and punctuation omitted).

Furthermore, any perceived ambiguity in the trial court’s ruling was resolved

by the trial court in its charge to the jury, wherein it instructed the jury, in pertinent

part, as follows:

[b]y no ruling or comment that the [c]ourt has made during the progress

of the trial hasthe [c]ourt intended to express any opinion upon the facts

of this case, upon the credibility of the witnesses, upon the evidence, or

upon the guilt or innocence of the [d]efendant. Your verdict should be

a true verdict based upon your opinion of the evidence according to the

law given to you in this charge. 

For the above reasons, Person’s argument provides no basis for reversal.

(b) Person also contends that his trial counsel was ineffective for failing to

request the trial court to give a limiting instruction to the jury after his prior

conviction was admitted into evidence. Again, we disagree.

To prevail on a claim of ineffective assistance of trial counsel, appellant

must show counsel’s performance was deficient and that the deficient

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performance prejudiced him to the point that a reasonable probability

exists that, but for counsel’s errors, the outcome of the trial would have

been different. The failure to show either prong is fatal to appellant’s

ineffectiveness claim.

(Citations omitted.) Massey v. State, 306 Ga. App. 180, 184 (4) (702 SE2d 34)

(2010).

Where a defendant is on trial for the offense of possession of a firearm by a

convicted felon, along with other unrelated criminal offenses, and the State introduces

the defendant’s prior conviction for the purpose of proving the defendant’s status as

a convicted felon, the trial court must, upon request, instruct the jurors not to consider

evidence of the defendant’s prior felony conviction in deciding his guilt or innocence

of any of the charges other than the possession of a firearm by a convicted felon

charge. See Barnett v. State, 215 Ga. App. 46, 47 (2) (449 SE2d 651) (1994).

In this case, however, it was Person himself, not the State, who first alerted the

jury to his prior felony conviction. The certified copy of his conviction that was

admitted was merely cumulative of the evidence that Person introduced. Even

assuming that trial counsel was deficient in failing to request a limiting instruction

after the State introduced the certified copy of his conviction, Person has not

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established that he was prejudiced by trial counsel’s performance.1 Given the

testimony from Meadows and the eyewitness, Bertha Harris, as well as the fact that

Person had himself first told the jury about his conviction, we conclude that it is

highly probable that any failure to request a limiting instruction when the State

introduced the certified copy of the conviction did not contribute to the guilty verdict.

Judgment affirmed. Doyle, C. J., and Andrews, J., concur.

1

 We note that an argument could be made that trial counsel was deficient by

soliciting testmony from Pearson on direct regarding his prior conviction. However,

such alleged error was neither argued below nor raised as error in this appeal, and we

will not consider the same.

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