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Lang v. State

Court of Appeals of Georgia, Fifth Division

February 21, 2018

LANG
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         After a 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.

         Viewed 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.

         Lang 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.

         1. Motion to sever or bifurcate.

         Lang contends that the trial court erred in denying his motion to sever or bifurcate the charges. The contention is without merit.

[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).

         In the 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 376) (2014).

         2. Admission of gang-related evidence.

         Lang 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 reversible error.

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 sparingly.

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 ...


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