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State v. Plaines

Court of Appeals of Georgia, Fifth Division

March 15, 2018

THE STATE
v.
PLAINES.

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

          Branch, Judge.

         After Andre Plaines was charged with second-degree burglary, second-degree criminal damage to property, possession of tools for the commission of crime, and smash-and-grab burglary, the State filed a motion of its intention to introduce other-act evidence of a different second-degree burglary in the same county to which Plaines had pled guilty. The trial court denied the State's motion on the ground that the other-act evidence was not relevant under OCGA § 24-4-404 (b). On appeal from this ruling, the State argues that this other-act evidence is relevant and that the trial court therefore abused its discretion when it denied the State's motion. Because we agree, we vacate the trial court's judgment and remand for further proceedings consistent with this opinion.

          "A trial court's decision under OCGA §§ 24-4-403 and 24-4-404 (b) to exclude or admit other acts evidence will be overturned only where there is a clear abuse of discretion." State v. Dowdell, 335 Ga.App. 773 (783 S.E.2d 138) (2016) (citation and punctuation omitted). In our review, we

must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. This means that [we] generally must accept the trial court's findings as to disputed facts unless they are clearly erroneous, although [we] may also consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility, such as facts indisputably discernible from a videotape.

State v. Allen, 298 Ga. 1, 2 (1) (a) (779 S.E.2d 248) (2015) (citations and punctuation omitted).

         Construed in favor of the trial court's findings and judgment, the record shows that at the hearing on the admissibility of the other-act evidence, a detective with the Savannah Chatham Metropolitan Police Department testified about the instant crime, a burglary of a Red and White grocery store in which an orange circular saw was used to cut around the cash box of an ATM, as well as the other act, a burglary of a Food Lion grocery store in which an orange circular saw was also used to cut into an ATM. The trial court asked the detective whether in his investigation of burglaries he had ever seen a circular saw used in that manner. The detective responded, "I have never, sir, not until this came -- came up, and then there were several other investigators working other incidents similar to this. That was the only time I've ever heard of somebody using a concrete saw to cut into an ATM machine, and those were all within a very close proximity of these crimes." The trial court then filed an order finding that the evidence of the Food Lion burglary was relevant, probative, and admissible at Plaines's trial for the Red and White burglary.

         At some later point, the State informed the trial court that the detective's testimony was inaccurate. The court conducted two additional hearings: one at which the detective testified that he was aware of a third burglary where a circular saw was used to cut into an ATM, and one at which a different law enforcement officer testified about the third burglary. After these hearings, the trial court ruled that evidence of the Food Lion burglary was not admissible in the prosecution for the Red and White burglary. In its second order on the issue, the trial court made the following findings of fact concerning the Red and White burglary:

On the night of February 3, 2015, three unknown individuals entered the premises of a Red and White grocery store with the use of a crowbar.
One of the three suspects was carrying a black crowbar and another was carrying a yellow crowbar.
The suspects pried open the sliding doors to the business; once inside, they used an orange concrete saw to cut into the ATM in the spot required to remove the cash box without damaging it.
The suspects fled in a grey F-250 truck that had been reported stolen.

         The trial court made the following findings of fact concerning the Food Lion burglary:

On February 26, 2015, Plaines entered the Food Lion, a grocery store located in Port Wentworth, Georgia. It was night time and the store was closed.
Plaines and another individual pried open the first set of doors and then broke the second set of sliding glass doors.
Plaines entered the store with an orange Husqvarna concrete saw that he used to cut into the front portion of the ATM, located at the front of the store.
Officers responded to the alarm and witnessed Plaines cutting into the ATM with the ...

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