MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
jury trial, Michael Lang was convicted of possession of a
firearm by a convicted felon and participation in criminal
gang activity. Lang appeals, challenging the denial of a
motion to sever or bifurcate the charges and the admission of
certain gang-related evidence. Because Lang has failed to
show that the trial court abused its discretion in denying
the motion or in admitting the evidence, we affirm.
in the light most favorable to the verdict, see Jackson
v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d
560) (1979), the evidence shows that Lang, who had the word
"Crip" and the number "83" tattooed on
his face, was a member of the 83 Crips, a local set of the
national Crips criminal street gang. In 2009, Lang was
convicted of the felony offense of forgery in the first
degree. Five years later, on September 22, 2014, a police
investigator entered a house where he discovered that Lang
had hidden a loaded handgun in the bedroom closet of another
gang member. According to expert testimony, members of the 83
Crips are required by the gang to possess firearms.
was charged in a two-count indictment with possession of a
firearm by a convicted felon and with violating OCGA §
16-15-4 of the Georgia Street Gang Terrorism and Prevention
Act (OCGA § 16-5-1 et seq.), which prohibits
participating in criminal gang activity. The criminal gang
activity count was based on Lang's commission of the
firearm offense charged in the first count while being
associated with the 83 Crips gang. Lang filed a motion to
sever the counts or for a bifurcated trial of the counts. The
trial court denied the motion to sever or bifurcate because
"the [gang] charge depends on the firearm as a predicate
felony." The case was tried before a jury, which found
Lang guilty of both counts. The trial court denied Lang's
motion for a new trial, and this appeal followed.
Motion to sever or bifurcate.
contends that the trial court erred in denying his motion to
sever or bifurcate the charges. The contention is without
[T]he Georgia Supreme Court [has] ruled that where a
defendant is charged both with possession of a firearm by a
convicted felon and with a more serious offense which is
unrelated in the sense that proof of the former is not
required to prove the latter, the trial must be bifurcated to
prevent evidence of the defendant's prior felony
conviction from influencing the jury unnecessarily. On the
other hand, as the [Supreme Court has further] explained, in
cases where the count charging possession of a firearm by a
convicted felon might be material to a more serious charge -
as, for example, where the offense of murder and possession
are charged in one indictment, and the possession charge
might conceivably become the underlying felony to support a
felony murder conviction on the malice murder count of the
indictment - the trial need not be bifurcated.
Thurman v. State, 256 Ga.App. 845, 846 (1) (570
S.E.2d 38) (2002) (citations and punctuation omitted). Accord
Wilson v. State, 302 Ga. 106, 110 (IV) (805 S.E.2d
98) (2017) (trial court properly denied motion to bifurcate
where count charging possession of a firearm by a convicted
felon was the predicate offense for the other charge).
instant case, the possession of a firearm by a convicted
felon charge was material to the criminal gang activity count
as it was the underlying felony for that count. See OCGA
§§ 16-15-3 & 16-15-4 (a). "Under such
circumstances, a bifurcated trial is not required. It follows
that the trial court did not abuse its discretion in refusing
to grant the requested relief." Al-Amin v.
State, 278 Ga. 74, 80 (8) (597 S.E.2d 332) (2004)
(citations and punctuation omitted). See also Atkinson v.
State, 301 Ga. 518, 526 (6) (e) (801 S.E.2d 833) (2017);
Brown v. State, 295 Ga. 804, 807-808 (3) (764 S.E.2d
Admission of gang-related evidence.
claims that the trial court erroneously admitted certain
gang-related evidence because it was either irrelevant or its
prejudice outweighed its probative value. We find no
Generally, all relevant evidence shall be admissible, OCGA
§ 24-4-402. Under OCGA § 24-4-403, however,
relevant evidence may be excluded 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. The application of OCGA
§ 24-4-403 is a matter committed principally to the
discretion of the trial courts, and as we have explained
before, the exclusion of relevant evidence under OCGA §
24-4-403 is an extraordinary remedy that should be used only
Smith v. State, __ Ga.__ (3) (Case No. S17A1757,
decided December 11, 2017) (citations and punctuation
omitted). Accord Kim v. State, 337 Ga.App. 155, 157
(786 S.E.2d 532) (2016) (the trial court's admission of
evidence will not ...