T. Booth was convicted of malice murder and other crimes in
connection with the death of Shantle Vason. Booth appeals and
argues that the trial court erred by: (1) reading the
indictment to a competency jury; (2) allowing the State to
make improper arguments during closing statements; (3)
admitting evidence of other acts to prove intent in this
case; and (4) merging instead of vacating the felony murder
counts. We vacate the merger of the felony murder counts and
otherwise affirm Booth's convictions.
in the light most favorable to the verdict, the trial
evidence showed the following. Sometime in December 2006,
Booth began dating Vason, who had been diagnosed with an
intellectual disability. In early February 2007, police were
called out to Booth's apartment on multiple occasions.
One 911 call was made by Booth's roommate who reported
that Booth had assaulted Vason; another call was made by
Vason's mother, Evelyn Rosemond, when Booth refused to
allow Rosemond to see her daughter.
point, Vason began seeing someone else. On the morning of
February 24, 2007, Booth called a friend from Vason's
cell phone and admitted to being inside Vason's apartment
and having an argument with her about another man. Booth also
called Vason's sister, admitting that he had gotten into
an argument with Vason and taken her phone so she could not
call anyone. Booth told Vason's sister that Vason was
cheating on him, apologized because he "couldn't
deal with her, " and said he was going to call
Vason's mother so he could apologize to her, as well.
Sometime later, Booth spoke to Rosemond on Vason's cell
phone. Booth told Rosemond that he was leaving Vason because
she was cheating on him and she was "slow."
Rosemond asked to speak with Vason, but Booth claimed he was
not with Vason and was in a different part of town. Cell
phone records showed, however, that Vason's cell phone,
which Booth was using, was near a cell phone tower close to
that day, Booth called 911 and reported that Vason had been
assaulted. When police responded to Vason's apartment,
they found Booth attempting to do CPR on Vason, who was
gasping for air. She was naked and partially covered by a
sheet, and the exposed portions of her body revealed
significant bruising, including to her neck, face, legs, and
arms. Her eyes were swollen shut, her left arm was swollen,
and her buttocks were bleeding. After being transported to a
local hospital, Vason was airlifted to a trauma unit, where
doctors determined that she had lost all brain function due
to traumatic brain injuries. Vason remained on life support
for several hours but was eventually disconnected and died
from her injuries.
told police officers at the scene that he went to Vason's
apartment to check on her after her mother expressed concern
that she had not heard from Vason. Booth said he found Vason
fully clothed in a state of distress, undressed her to treat
her injuries and to put ice packs on the bruising, and called
911 when she became unresponsive. Police did not see any ice
packs in the area. Booth had speckles of blood on his shirt
that DNA analysis later revealed was Vason's. After
arresting Booth and taking him to the police station, police
noticed that Booth's right hand was red, swollen, and
searching Vason's apartment, police observed signs of a
struggle, including a broken frame, broken glass throughout
the apartment, damaged blinds, and blood on an end table, in
the kitchen, and on the mattress in the bedroom where Vason
was found. Officers also found a box in the garbage that
contained a candle covered in feces.
medical examiner conducting an autopsy on Vason concluded
that Vason had numerous blunt force injuries and abrasions
across her body, she had injuries on her hand consistent with
defensive wounds, and had extensive hemorrhaging on both
sides of her head. The medical examiner concluded that
although Vason's extensive injuries were incompatible
with life, her head injuries were the likeliest cause of her
death. The medical examiner also determined that the
feces-covered candle was the likely cause of injuries found
inside Vason's rectum, and that the bruising on
Vason's buttocks was consistent with a forceful attempt
to expose her anus.
Vason died, medical personnel collected DNA samples from
Vason's genital and rectal areas. A GBI analyst compared
those DNA samples with DNA samples taken from Booth by
evaluating 16 locations in the DNA profiles. A semen sample
taken from Vason's rectal area was a 16-location match
for Booth's DNA. The swab taken from Vason's genital
area indicated the presence of two DNA profiles in addition
to Vason's DNA profile. One of the other profiles was a
partial match for Booth, but the other was not.
Booth does not challenge the sufficiency of the evidence.
Nevertheless, as is our customary practice in murder cases,
we have independently reviewed the record and conclude that
the evidence was legally sufficient to authorize a rational
trier of fact to find beyond a reasonable doubt that Booth
was guilty of the crimes for which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979).
Booth argues that the trial court plainly erred by reading
the indictment in its charge to the special jury determining
Booth's competency to stand trial. Although Booth did not
object to the charge at the time, he now argues that the
criminal charges and the allegations of how the crimes were
committed were irrelevant and prejudicial to the jury's
determination of the issue. We disagree.
as here, a party fails to object to a jury charge, we review
the issue for plain error pursuant to OCGA § 17-8-58
(b). There are four prongs in the test for plain error.
First, there must be an error or defect - some sort of
deviation from a legal rule - that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the
appellant. Second, the legal error must be clear or obvious,
rather than subject to reasonable dispute. Third, the error
must have affected the appellant's substantial rights,
which in the ordinary case means he must demonstrate that it
affected the outcome of the trial court proceedings. Fourth
and finally, if the above three prongs are satisfied, the
appellate court has the discretion to remedy the error -
discretion which ought to be exercised only if the error
seriously affects the fairness, integrity, or public
reputation of judicial proceedings.
State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d
232) (2011) (citations and punctuation omitted).
trial court made no error, much less plain error, in reading
the indictment to the jury during the competency hearing. At
issue in a competency proceeding is whether "a defendant
is capable at the time of the trial of understanding the
nature and object of the proceedings going on against him and
rightly comprehends his own condition in reference to such
proceedings, and is capable of rendering his attorneys such
assistance as a proper defense to the indictment preferred
against him demands." Lewis v. State, 279 Ga.
69, 70 (3) (608 S.E.2d 602) (2005). Whether a defendant
understands the nature and gravity of the charges against him
is highly relevant to the competency proceeding. Black v.
State, 261 Ga. 791, 794 (2) (410 S.E.2d 740) (1997).
Because the indictment provided information about the nature
and gravity of the charges against Booth, the trial court
made no error in reading the indictment to the special jury
where it otherwise properly charged the jury on its duty to
determine Booth's competency. See Waldrip v.
State, 267 Ga. 739, 743 (6) (482 S.E.2d 299) (1997)
(trial court did not err in allowing the State to repeatedly
refer to the pending charges against a defendant at the
competency proceeding; the nature of the charges was relevant
to the competency determination and the court properly
charged the jury on its role), abrogated on other grounds as
recognized by Archie v. State, 248 Ga.App. 56, 57
(1) n.3 (545 S.E.2d 179) (2001).
Booth argues that the trial court erred by admitting evidence
of other acts for the purpose of proving his intent to commit
the charged crimes. We disagree.
other acts evidence involved Booth's assault and battery
of ex-girlfriends. Traveaka Banks testified that, during the
time she dated and lived with Booth, Booth became angry and
hit Banks in the head and arms with his fist after she said
she wanted to end their relationship. Ciara Hassell, another
of Booth's ex-girlfriends, also testified that Booth was
physically abusive during their relationship. Once, Booth
became angry when he asked Hassell to use her food stamp card
and she told him she did not have it. Booth threw things and
then hit Hassell in the head. For this offense, Booth pled
guilty to family violence battery. Hassell also said that
about a week after the first incident, she and Booth were
arguing about money when Booth hit her on the head with his
hand and threw something that hit her in the back. Booth
pleaded guilty to aggravated stalking and family violence
battery for his acts during the argument.
review a trial court's decision to admit other acts
evidence for an abuse of discretion. See State v.
Jones, 297 Ga. 156, 159 (1) (773 S.E.2d 170) (2015). For
trials, like Booth's, that occur after January 1, 2013,
the admissibility of other acts evidence is governed by OCGA
§ 24-4-404 (b) ("Rule 404 (b)"), which
provides that "[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 therewith. It
may, however, be admissible for other purposes, including,
but not limited to, proof of . . . intent . . . ." For
other acts evidence to be admissible, the moving party must
show that: (1) the evidence is relevant to an issue other
than the defendant's character, (2) the probative value
is not substantially outweighed by undue prejudice under OCGA
§ 24-4-403, and (3) there is sufficient proof so that
the jury could find that the defendant committed the acts.
Jones, 297 Ga. at 158-159 (1); Bradshaw v.
State, 296 Ga. 650, 656 (3) (769 S.E.2d 892) (2015).
Rule 404 (b) is a rule of inclusion, but it does prohibit the
introduction of other acts evidence when it is offered for
the sole purpose of showing a defendant's bad character
or propensity to commit a crime. See Jones, 297 Ga.
at 160 (2); see also United States v. Covington, 565
F.3d 1336, 1341 (11th Cir. 2009) ("Rule 404 (b)
prohibits the introduction of pure propensity
evidence."); Ronald L. Carlson & Michael Scott
Carlson, Carlson on Evidence 128 (5th ed. 2016) ("Rule
404 (b) is one of inclusion [that] allows extrinsic evidence
unless it tends to prove only criminal propensity.").
asserts an argument regarding only the first part of Rule 404
(b)'s three-part test. He argues that the other acts
evidence, which he claims constituted no more than battery or
simple battery, was not relevant to the issue of intent
because the intent required for battery or simple battery was
not the same as that for the offenses charged
here. He focuses specifically on the intent
required for malice murder. Malice murder, however, is not
the only crime for which he was prosecuted in this case and
thus for which the State was required to prove intent. Booth