MCFADDEN, P. J., BRANCH and BETHEL, JJ.
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
State v. Allen, 298 Ga. 1, 2 (1) (a) (779 S.E.2d
248) (2015) (citations and punctuation omitted).
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.
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
The suspects fled in a grey F-250 truck that had been
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 ...