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Thompson v. State

Court of Appeals of Georgia, Third Division

July 18, 2018

THOMPSON
v.
THE STATE.

          ELLINGTON, P. J., BETHEL and GOBEIL, JJ.

          BETHEL, JUDGE.

         Antonio Thompson appeals from the denial of his motion for new trial following his convictions for trafficking in cocaine, possession of cocaine with intent to distribute, possession of a Schedule I controlled substance with intent to distribute, and possession of marijuana with intent to distribute. In his sole enumeration of error, Thompson argues that the trial court erred by permitting the State to introduce evidence of certain of Thompson's prior criminal acts pursuant to Rule 404 (b). Although we agree that the trial court erred by admitting such evidence, in light of the overwhelming evidence of guilt presented at trial, we find that such error was harmless. We therefore affirm the denial of Thompson's motion for new trial.

         OCGA § 24-4-404 (b) provides

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. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.

         This Court reviews the admission of evidence pursuant to Rule 404 (b) for a clear abuse of discretion. Bradshaw v. State, 296 Ga. 650, 656 (3) (769 S.E.2d 892) (2015).

         As the Supreme Court discussed in Bradshaw, admissibility of evidence of other crimes and acts under Rule 404 (b) is determined by applying the following 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.

Bradshaw, 296 Ga. at 656 (3) (citation omitted).

         Here, in addition to evidence of other prior drug convictions, the State sought to introduce evidence that in 2001, Thompson was convicted of possession of cocaine with intent to distribute and obstruction. The State also sought to introduce evidence of the circumstances of the 2000 arrest which led to those convictions; specifically, the State sought to introduce testimony from the arresting officer regarding Thompson's obstructive and violent conduct once police confronted and attempted to arrest him. Over Thompson's objection, the trial court ruled that this evidence could be introduced with the purpose of demonstrating Thompson's intent and the absence of mistake or accident.

         At trial, the State called the officer who arrested Thompson in 2000. The officer testified that on the date of the arrest he was on patrol near a crowd of people at a festival on Tybee Island. At that time, he observed what he believed to be a drug transaction involving Thompson. Thompson began to walk away when he was alerted to the officer's presence, and the officer followed him. The officer eventually began to run and chase Thompson. Upon reaching him, the officer and Thompson engaged in a "street fight" in which Thompson was ultimately subdued with the help of two additional police officers. During that altercation, Thompson called out to the crowd, asking for help. As Thompson was being taken into custody, one of the assisting officers displayed his pepper spray in order to maintain order and keep bystanders away. The officers located contraband on Thompson's person. From this incident, Thompson was convicted in 2001 of possession of cocaine with intent to distribute, felony obstruction, and misdemeanor obstruction.

         While Thompson does not appear to challenge the introduction of the evidence of his prior conviction for possession with intent to distribute, he now argues that permitting the jury to hear evidence of the circumstances surrounding his 2000 arrest and his convictions for obstruction violated Rule 404 (b)'s prohibition on the introduction of character evidence. We agree.

         In the present case, while Thompson was charged with a variety of drug offenses, he was not charged with obstruction or any similar offense. Nor does the record reflect that his arrest for these offenses involved any type of violent conduct or obstructive behavior.[1] Thus, even though the trial court was within its discretion to admit evidence of his cocaine conviction and the officer's testimony that he witnessed Thompson engage in a hand-to-hand cocaine transaction, it abused its discretion when it allowed the State's witness to testify regarding the ensuing pursuit and altercation and the obstruction convictions stemming from it. That evidence did not yield any information which would allow the jury to assess his intent or the absence of mistake or accident regarding the drug charges against him in this case and was not otherwise relevant to any issue in the case. Cf. Booth v. State, 301 Ga. 678, 681-86 (3) (804 S.E.2d 104) (2017) (evidence of prior conviction for family violence battery relevant to prove intent to commit aggravated assault against domestic partner); State v. Jones, 297 Ga. 156, 159-63 (2) (773 S.E.2d 170) (2015) (evidence of prior DUI conviction relevant to show defendant's intent to drive under influence of alcohol in current prosecution for DUI); Powell v. State, 332 Ga.App. ...


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