MCFADDEN, C. J., MCMILLIAN, P. J. and GOSS, J.
MCFADDEN, CHIEF JUDGE.
jury trial, Chris A. Blackwell was convicted of armed
robbery, of multiple counts of aggravated assault, of making
terroristic threats, and of possession of a firearm during
the commission of a felony. Among other claims, Blackwell
argues that the trial court erred in allowing the state to
present character evidence in the form of his prior arrest
for armed robbery. We agree that this was harmful error, so
we reverse. Because the evidence authorized Blackwell's
convictions, he may be retried. We do not reach
Blackwell's other claims of error.
in the light most favorable to the judgment, see Garza v.
State, 347 Ga.App. 335 (1) (819 S.E.2d 497) (2018), the
trial evidence showed that Blackwell, along with several
other people, planned and executed the robbery of a bank in
Carrollton during the afternoon of April 29, 2013. That day,
Blackwell, Jonathan Irving,  Gibran Ezell, and one other man
(who was not named at trial) drove in two cars from Atlanta
to Carrollton. There, Ezell and the other man got into one
car and drove to the bank. Inside the bank, Ezell shot a gun
into the ceiling before pointing it at the numerous bank
customers and employees who were present. The other man
jumped over the teller counter and took approximately $14,
000 in cash. During the robbery, the men demanded money,
yelled profanities, and threatened to shoot the people inside
the bank, frightening them. After leaving the bank, the men
drove to a nearby road, abandoned their car, rejoined
Blackwell and Irving, and returned to Atlanta.
investigation of the bank robbery led law enforcement to
arrest Ezell, who ultimately gave a statement implicating
Blackwell and described Blackwell's involvement in the
robbery at trial. Other trial evidence corroborated
Ezell's testimony. Investigators found Blackwell's
fingerprint inside the car that Ezell and the other man had
abandoned near the bank. That car had been stolen two days
before the bank robbery. In addition, Blackwell's former
girlfriend testified to an instance where Blackwell had
borrowed her car in exchange for a Dodge Charger. Her
testimony was consistent with Ezell's description of a
car swap the morning of the bank robbery.
does not challenge the sufficiency of the evidence supporting
his convictions, and we find that this evidence authorized
his convictions. See OCGA § 16-5-21 (aggravated
assault), § 16-8-41 (armed robbery), § 16-11-37
(terroristic threats), § 16-11-106 (possession of
firearm). See also OCGA § 16-2-20 (a) ("Every
person concerned in the commission of a crime is a party
thereto and may be charged with and convicted of commission
of the crime."). So the state may retry him on remand.
See Frazier v. State, 339 Ga.App. 405, 413 (5) (793
S.E.2d 580) (2016).
Admission of character evidence.
testified at trial, and during his cross-examination the
prosecutor asked him about a prior arrest for armed robbery.
Blackwell's counsel objected and moved for a mistrial,
but the trial court ruled that the state could elicit that
evidence under OCGA § 24-4-404 (a) (1) ("Rule 404
(a) (1)"). (The state emphasized that it did not seek
admission of the evidence as a prior bad act under OCGA
§ 24-4-404 (b).) We review the trial court's
decision for abuse of discretion, Ramirez v. State,
303 Ga. 232, 235 (II) (811 S.E.2d 416) (2018), and because
Rule 404 (a) (1) is materially identical to Federal Rule of
Evidence 404 (a) (2) (A), we apply federal case law and
Georgia case law decided under our new Evidence Code, rather
than Georgia case law decided under our former Evidence Code.
State v. Almanza, 304 Ga. 553, 556 (2) (820 S.E.2d
1) (2018). Considering that authority, we agree with
Blackwell that the trial court's ruling was error and
that the error was harmful, requiring us to reverse the
404 of our new Evidence Code, like its federal counterpart,
embodies "the fundamental rule . . . that the government
may not rely on the accused's bad character to win a
conviction unless character has been put in issue by the
defense." United States v. LeQuire, 943 F.2d
1554, 1570 (VII) (C) (11th Cir. 1991) (citation and
punctuation omitted). Generally, "[e]vidence of a
person's character or a trait of character shall not be
admissible for the purpose of proving action in conformity
therewith on a particular occasion[.]" OCGA §
24-4-404 (a). See United States v. Rutgerson, 822
F.3d 1223, 1239 (IV) (11th Cir. 2016). But Rule 404 (a) (1)
provides an exception to that general rule: "Evidence of
a pertinent trait of character [may be] offered by an accused
or by the prosecution to rebut the same[.]" OCGA §
24-4-404 (a) (1). This exception permits the admission of
prior bad act evidence, that would not be admissible
otherwise, "after the opposing party has 'opened the
door' to its admission.'" United States v.
Birchette, 908 F.3d 50, 61 (III) (B) (4th Cir. 2018).
Proof of good character is that evidence "introduced by
a defendant to show circumstantially that he is unlikely to
have committed the crime for which he is accused[.]").
United States v. Thomas, 676 F.2d 531, 537 (III)
(11th Cir. 1982). If a defendant introduces evidence of
"pertinent" - meaning relevant - character traits,
he "open[s] the door to cross-examination and rebuttal
on those traits." United States v. Hewitt, 634
F.2d 277, 278-279 (5th Cir. 1981).
state has substantial latitude in this regard. United
States v. Bah, 574 F.3d 106, 118 (III) (2d Cir. 2009).
Nevertheless, prosecutorial use of character evidence under
this exception is "limited to instances that are
relevant to the traits of character about which the witnesses
have testified." United States v. Coumaris, 399
F.3d 343, 348 (II) (A) (D.C. Cir. 2005). "[T]he new
evidence must be reasonably tailored to rebut the original
evidence," Birchette, 908 F.3d at 61 (III) (B)
(citation and punctuation omitted), and its relevance
"is to be determined with reference to the
characteristics of the proffered trait and the elements of
the charged offense." United States v.
Williams, 2014 U.S. Dist. LEXIS 199704, *3 (I) (B) (SD
Ga. 2014) (citing Hewitt, 634 F.2d at 279). See
Montgomery v. State, ____ Ga.App.____, ___ (1)
(S.E.2d ___) (Case No. A19A1353, decided May 24, 2019)
(rebuttal evidence under Rule 404 (a) (1) is limited to
specific instances of defendant's conduct relevant to
character trait offered by defendant).
state makes two different arguments that evidence of
Blackwell's prior arrest for armed robbery was admissible
to rebut purported character evidence offered by Blackwell.
As detailed below, neither has merit.
Claim that evidence rebutted Blackwell's mention of
being a mentor.
trial court found, and the state argues on appeal, that
evidence of Blackwell's prior arrest for armed robbery
was admissible under Rule 404 (a) (1) to rebut his testimony
that he mentored children. But Blackwell did not offer this
testimony to establish a pertinent trait of character that
would allow for rebuttal evidence. And even if
Blackwell's testimony did open the door under Rule 404
(a) (1), the evidence of his prior arrest was not reasonably
tailored to rebut that evidence.
Rule 404 (a) (1) exception to apply, a defendant "must
choose to place his good character in issue. . .
." Montgomery, ___ Ga.App. At ___ (1) (emphasis
supplied). See generally Michelson v. United States,
335 U.S. 469, 477 (69 S.Ct. 213, 93 LE 168) (1948)
(describing act of defendant "elect[ing] to initiate a
character inquiry"); United States v. Lewis,
482 F.2d 632, 637 (II) (D.C. Cir. 1973) (referring to
election by defendant to advance evidence of one or more
character traits as evidence of innocence).
"[P]rosecutors should not be allowed to go into matters
of character if the defendant presents background facts
briefly and simply, painting an ordinary picture of a life in
being. On the other hand, prosecutors certainly should be
able to answer any inference suggested by the defendant that
he is not the kind of person who would do the acts . . .
charged. . . ." 1 Christopher B. Mueller et al., Federal
Evidence § 4:24 (4th ed. updated June 2019). The record
shows that Blackwell's comments about mentoring fall into