Certiorari to the Court of Appeals of Georgia -- 326 Ga.App. 658.
Judgment reversed and case remanded with direction.
Jessica K. Moss, Solicitor-General, Barry W. Hixson, Laura A. Janssen, Assistant Solicitors-General, for appellant.
Chestney Law Firm, Rebecca T. Kozycki; Filipovits Law Firm, Jeffrey R. Filipovits, for appellee.
Gregory W. Edwards, District Attorney, Carroll R. Chisholm, Jr., Solicitor-General, Denise D. Fachini, District Attorney, Carlton T. Hayes, Barry E. Morgan, Solicitor-General, Ashley Wright, District Attorney, D. Victor Reynolds, District Attorney, Michael S. Carlson, John R. Edwards, Donald P. Geary, John S. Melvin, Andrew J. Ekonomou, Assistant District Attorneys; Isenberg & Hewitt, Ryan L. Isenberg, Melvin L. Hewitt, Jr.; William C. Head, P.C., William C. Head, Jennifer G. Ammons, amici curiae.
THOMPSON, Chief Justice. All the Justices concur.
Thompson, Chief Justice.
We granted a writ of certiorari in this appeal to consider whether, under OCGA § 24-4-404 (b) (" Rule 404 (b)" ) of the new Georgia Evidence Code, evidence of appellee Michael Jones' 2005 conviction for driving under the influence of alcohol to the extent it was less safe for him to drive was admissible in a subsequent prosecution for driving under the influence. For the reasons stated below, we find that evidence of Jones' prior conviction was admissible at trial pursuant to Rule 404 (b), reverse the contrary decision of the Court of Appeals in Jones v. State, 326 Ga.App. 658 (757 S.E.2d 261) (2014), and remand to that court with direction.
At approximately 11:45 p.m. on January 21, 2011, a Cherokee County deputy sheriff conducted a traffic stop of Jones and his vehicle [297 Ga. 157] after Jones was observed driving at a speed above the posted speed limit. While speaking with Jones, the officer detected an odor of alcohol and noticed Jones' eyes were red and watery. The officer asked Jones to exit the vehicle and inquired whether he had been drinking. Jones twice denied having consumed any alcohol, but after he failed the horizontal gaze nystagmus test and exhibited multiple clues of intoxication on field sobriety tests, he admitted he drank two beers earlier in the evening. Based on his observations and Jones' performance on the field tests, the officer arrested Jones. Jones subsequently agreed to submit to state-administered breath tests which produced readings of 0.147 and 0.139.
Jones was charged with driving with a blood alcohol level of 0.08 grams or more (DUI per se), see OCGA § 40-6-391 (a) (5), driving while under the influence of alcohol to the extent it was less safe for him to drive (DUI less safe), see OCGA § 40-6-391 (a) (1), and speeding, OCGA § 40-6-181. In June 2011, the State filed a notice of intent to introduce evidence of Jones' prior conviction of DUI less safe, a charge to which he had pled guilty. Consistent with this Court's precedent regarding the purposes for which evidence of other acts could be offered, the State asserted that Jones' prior DUI conviction was being offered for the purpose of showing Jones' " bent of mind, course of conduct[,] identity, knowledge, lack of mistake, motive, and intent[,] ... [and] willingness ... to operate a motor vehicle after his ... ability to do so safely had been compromised by the ingestion of intoxicants." See Williams v. State, 261 Ga. 640, 642, n. 2 (409 S.E.2d 649) (1991). Anticipating that trial would not commence until after January 1, 2013, the effective date of Georgia's new Evidence Code, the State in December 2012 filed an amended notice stating its purpose for offering the prior conviction evidence included, but was not limited to, " proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See OCGA § 24-4-404 (b). The State at a pretrial hearing further narrowed the purposes for which such evidence was being offered, asserting that it was relevant to show Jones' intent and knowledge. The trial court admitted it for these limited purposes.
After a jury found Jones guilty of all charges, the trial court merged the DUI less safe charge into the charge of DUI per se and sentenced Jones. The Court of Appeals reversed Jones' DUI per se conviction, holding
that evidence of Jones' prior conviction should not have been admitted at trial because it was not relevant to, or probative of, the commission of the charged crimes because they were general intent crimes and " no culpable mental state was required to commit the crime[s] in the first place." Jones, supra, 326 Ga.App. at 663. After reviewing the record and the purposes for which this [297 Ga. 158] evidence was offered, we find the Court of Appeals ...