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Turner v. State

Court of Appeals of Georgia, First Division

March 6, 2018

TURNER
v.
THE STATE

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Tyler Turner and a co-defendant were charged with crimes arising from two separate armed robberies, and after a consolidated trial, Turner was acquitted of all charges related to one of the robberies, but, as to the second robbery, he was convicted of armed robbery, four counts of false imprisonment, three counts of aggravated assault, possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon. Turner was sentenced as a recidivist pursuant to OCGA § 17-10-7 (a), and received a sentence of life plus 90 years. Following the denial of his motion for new trial, Turner appeals and contends that the trial court erred in admitting a prior conviction and that trial counsel was ineffective. Following our review, we affirm.

         Although Turner does not challenge the sufficiency of the evidence, we note that "on appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence." (Citations and punctuation omitted.) Strobel v. State, 322 Ga.App. 569, 569-570 (745 S.E.2d 796) (2013). So viewed, a brief summary of the evidence at trial demonstrates that at approximately 12:45 a.m. on December 5, 2012, the Fast Stop gas station was robbed at gunpoint by two men wearing masks. The men, who were also wearing white gloves, pointed guns at a cashier, demanded the money from the register, and left the store. Although the incident was captured on surveillance video, it was unclear whether the masked men had escaped in a car or on foot. A BOLO had been previously been issued for suspects in a similar robbery that had occurred on December 2, 2012, involving two suspects in a red Ford focus with a missing driver's side rear-view mirror.

         About 30 minutes later, while combing the area for the suspects, a police officer saw a car that matched the BOLO description parked at another gas station. Turner and his co-defendant were in the vehicle. The men were questioned, and later, after a search of the vehicle, police recovered a white latex glove, a two dollar bill stamped with the number "226"- the store number of the Gate Station convenience store, and other small denomination bills stashed in the glove compartment. The store's clerk testified that there had been no twenty dollar bills or higher in the register because the larger bills had been removed before the robbery.

         1. Turner contends that the trial court erred in admitting evidence of Turner's 2007 robbery conviction pursuant to OCGA § 24-4-404 (b) ("Rule 404 (b)"). He asserts that the prior conviction does not meet all three-prongs of the test for admissibility per Brannon v. State, 298 Ga. 601, 606 (4) (783 S.E.2d 642) (2016). We disagree.

         This Court reviews a trial court's decision under Rule 404 (b) to admit evidence of other crimes, wrongs or acts under a clear abuse of discretion standard. Parks v. State, 300 Ga. 303, 305-306 (2) (794 S.E.2d 623) (2016). At the Rule 404 (b) hearing before trial, the State proffered evidence of Turner's guilty plea to a 2006 robbery by force of a BP convenience store during which he had also worn a mask. The State argued that the two crimes "involve the same mental state, " and that one of the purposes for which it was introducing the evidence of the prior crime was to prove intent. Turner maintained that the two cases were not similar because there was no weapon used in the 2006 robbery, and "the fact that [in the present case] there was a weapon used clearly has got to distinguish this case that the State is trying to bring in from that previous case." He argued that admitting the prior conviction would result in undue prejudice because the jury would think "once a robber, always a robber." Over Turner's objection, the trial court subsequently admitted the prior conviction, finding that the State had met its burden of showing that the evidence was being admitted for a proper purpose pursuant to Rule 404 (b). Although the trial court did not specifically rule at that time that the prior conviction was being admitted for the purpose of proving intent, during the jury charge, the trial court instructed the jury that the evidence of the prior conviction was being admitted only for use in the State's effort to prove intent.

         Rule 404 (b) provides in part:

Evidence 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. . . .

         But evidence offered for a proper purpose under Rule 404 (b) may be excluded as provided by OCGA § 24-4-403 ("Rule 403"), "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." Id. To determine the admissibility of other acts evidence under these provisions, the trial court must exercise its discretion under a three-part test:

(1) the evidence must be relevant to an issue other than defendant's character; (2) the probative value must not be substantially outweighed by its undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.

Smart v. State, 299 Ga. 414, 417 (788 S.E.2d 442) (2016). Turner does not contend that the State failed to meet its burden under the third prong of the test, but asserts that the State failed to show that the prior act was relevant to any issue other than his character, or that the probative value outweighed the undue prejudice.

         First as to relevance, "[a] culpable state of mind - intent or criminal negligence -is an essential element of every crime." Olds v. State, 299 Ga. 65, 72 (2) (786 S.E.2d 633) (2016). "And because a plea of not guilty puts the prosecution to its burden of proving every element of the crime - including intent - evidence of other acts that tends to make the requisite intent more or less probable to any extent is relevant." Id. at 75. See Bradshaw v. State, 296 Ga. 650, 657 (769 S.E.2d 892) (2015) ("where the state of mind required for the charged and extrinsic offenses is the same, the first prong of the Rule 404 (b) test is satisfied.") (citation omitted).

         In this case a Screven County Sheriff's Office investigator testified that on August 3, 2006, he received a call about a robbery at the "Browers BP Amoco in Cooperville." As the clerk left the store, two men wearing masks confronted her, demanded money, and grabbed the bank bag that she was carrying. During the course of their investigation, the police executed an unrelated search warrant at a residence where Turner was located, and during the search discovered the bank bag from the store, checks written to the store, the clerk's purse, and $1440.00 in cash. Turner's defense in the current robbery was essentially that he was ...


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