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State v. Battle

Court of Appeals of Georgia, Third Division

February 14, 2018

THE STATE
v.
BATTLE.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Andrews, Judge.

         Alexander Darelle Battle was indicted for fourteen criminal offenses arising out of a June 20, 2015 armed robbery.[1] Prior to the trial of those offenses, the state filed this direct appeal pursuant to OCGA § 5-7-1 (a) (5) from the trial court's order excluding evidence the state sought to have admitted at trial showing that Battle committed crimes, wrongs, or acts other than the charged offenses. For the following reasons, we (1) vacate the trial court's order in part and remand, and (2) dismiss the appeal in part.

          1. We first address the state's right to bring a direct appeal pursuant to OCGA § 5-7-1 (a) (5). Under OCGA § 5-7-1 (a) (5), the state is authorized in a criminal case to file a direct appeal from the trial court's

order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if: (A) Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and (B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding.

(emphasis supplied).

         Read in context with OCGA § 5-7-1 (a) (4), the "other evidence" referred to in OCGA § 5-7-1 (a) (5) "is most naturally and reasonably understood to authorize appeals from orders excluding evidence other than the evidence with which OCGA § 5-7-1 (a) (4) is concerned." State v. Andrade, 298 Ga. 464, 466 (782 S.E.2d 665) (2016). Under OCGA § 5-7-1 (a) (4), the state is authorized to file a direct appeal from the trial court's order, decision, or judgment

suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first.

         "Accordingly, one cannot properly determine that an appeal from an order excluding evidence must be brought pursuant to OCGA § 5-7-1 (a) (5) without first ascertaining that it could not be brought under OCGA § 5-7-1 (a) (4)." Andrade, 298 Ga. at 466.

         The record shows that, pursuant to OCGA § 24-4-404 (b), the state filed a notice in advance of trial informing the defense of the general nature of evidence the State intended to introduce at trial showing "other crimes, wrongs or acts" committed by Battle: to wit, armed robbery, aggravated assault with intent to rob, and possession of a firearm during the commission of a crime, all occurring on or about June 25, 2015, five days after the charged offenses.[2] Under 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 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.

         Evidence of other crimes, wrongs, or acts relevant under OCGA § 24-4-404 (b) may, nevertheless, be excluded by the court

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.

         OCGA § 24-4-403. To determine the admissibility of other acts evidence under OCGA §§ 24-4-404 (b) and 24-4-403, the trial court ...


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