DILLARD, P. J., GOBEIL and HODGES, JJ.
Dillard, Presiding Judge.
Jones appeals his convictions for rape and aggravated
battery, arguing that the trial court (1) improperly
expressed an opinion on his guilt in violation of OCGA §
17-8-57; (2) erred in refusing to give a jury instruction on
battery as a lesser-included offense of aggravated battery;
and (3) abused its discretion by allowing the State to
introduce extrinsic evidence of a prior aggravated-assault
conviction. For the reasons set forth infra, we
reverse Jones's convictions and remand the case for
further proceedings consistent with this opinion.
in the light most favorable to the jury's verdict,
record shows that Jones and the victim, C. W., met in 2009,
and were married in 2012. Jones was physically and verbally
abusive to C. W. during their marriage and isolated her from
family and friends. And as a result of this abusive behavior,
C. W. attempted to leave Jones several times; but each time,
they got back together because he was aggressive and she was
afraid of him. But eventually, C. W. left Jones for good and
moved to North Augusta. One night after her move, when she
was relaxing at home, Jones went to her house, kicked in the
door, "charged [her] like a quarterback[, ]" and
threatened to break her jaw if she called the police. In
February 2014, after this incident, C. W. finally filed for
months later, on August 21, 2014, Jones called C. W. and told
her that he would agree to a divorce on the condition that
she give him a ride to his car-which was at her mother's
house-and talk to him about their relationship. C. W. agreed,
but after she picked Jones up, he instigated a fight over her
car (which she had recently purchased), alleging that another
man bought it for her. Jones-who was driving the car-became
increasingly angry, and at some point, he took his hands off
the wheel, grabbed C. W.'s neck, choked her, and
threatened to flip the car and kill them both. But he
eventually calmed down, and after stopping briefly at a
convenience store, Jones drove C. W. to her mother's
house as planned. Thereafter, Jones took C. W. to "the
Riverwalk," apologized for attacking her in the car, and
told her that he wanted to discuss working on their marriage.
When C. W. told him that she did not want to talk about that,
they returned to her mother's house, and Jones left.
that evening, around 11:00 p.m., Jones returned to C.
W.'s mother's house and told her to get into the car
with him. Although C. W. did not want to go with Jones, she
agreed to do so. Then, after making a few stops, Jones took
C. W. to his family's auto shop, where he had been
living. Once there, Jones asked C. W. if she would have sex
with him one last time before the divorce. C. W. agreed, and
they had consensual sex on a mattress that had been placed on
the floor of the shop. Afterward, outside of the shop, Jones
asked C. W. if she was still sure about wanting a divorce;
and when she said yes, Jones told her that "it's
best that [she] leave before [he] hurt [her]." Jones
then went back into his shop, but when C. W. started her car,
he ran back outside, "jumped through the [car] window[,
]" pushed his elbow into her throat, took her keys, and
went back inside.
W.-who did not have her phone or keys-went back into the
shop, called out Jones's name, and then she heard the
door slam behind her. C. W. immediately looked to her left
and saw that Jones was holding a can of gasoline and a
lighter. Jones threatened C. W., saying: "Bitch, I'm
going to kill you. I'm going to teach you about playing
with me." Jones then started pouring gasoline on C. W.,
while she begged him to stop and tried to escape. After
dropping the gasoline can and lighter, Jones grabbed C.
W.'s neck "extremely hard" with his right hand
and threw her on the mattress. Jones gripped her neck so hard
that she lost consciousness, and when she awoke, he lit her
on fire and "everything went up in flames." Once
the fire was put out (by both C. W. and Jones), C. W. begged
Jones to take her to the hospital for treatment, but he told
her that she "would be fine" and drove her to a
could not move due to her injuries, so she stayed in the car
while Jones went into the pharmacy for a few minutes. But
while he was inside, C. W. saw a couple nearby and asked them
to call 911. Although the police had been called, C. W. still
went back to the shop with Jones because she was afraid of
him, and once there, Jones put Vaseline, gauze, and tape on
her burns. Then, Jones had vaginal intercourse with C. W.
against her will, while she was still in "so much
pain" and begging him to get help for her injuries.
After Jones ejaculated, she "balled over in a knot"
on her side, and he "had sex with [her] from
behind." Eventually, after several futile attempts to
escape, Jones let C. W. leave for work, and she drove to her
sister's house to get help. As a result of the attack, C.
W. suffered such severe injuries that she was hospitalized
and remained in the Intensive Care Unit for two weeks.
Jones was charged, via indictment, with rape and aggravated
battery. And following a jury trial,  Jones was convicted of both
charged offenses. Jones filed a motion for a new trial, and
after a hearing on the matter, the trial court denied the
motion. This appeal follows.
Jones argues that the trial court erred by improperly
expressing an opinion on his guilt in violation of OCGA
§ 17-8-57. We agree.
OCGA § 17-8-57 (a), "[i]t is error for any judge in
any criminal case, during its progress or in his charge to
the jury, to express or intimate his opinion as to what has
or has not been proved or as to the guilt of the
accused." And should any judge express an opinion as to
"the guilt of the accused, the Supreme Court or
Court of Appeals or the trial court in a motion for a new
trial shall grant a new trial."
Jones was represented by counsel for the majority of the
trial, he asked to represent himself for the purpose of
cross-examining C. W. Specifically, after the State presented
the testimony of C. W. and two other witnesses, Jones
notified the court that he was not satisfied with his
attorney, and he asked the court to appoint new counsel to
represent him. The court responded that it would not appoint
new counsel because Jones was represented by a skilled
attorney; but the court asked if he wanted to represent
himself. The court then questioned Jones at length to make
sure that he understood what representing himself would
entail, including that he would be bound by all of the rules
of evidence lawyers must adhere to and that defendants who
represent themselves usually have a negative outcome with the
jury. Eventually, after a lengthy discussion on the matter,
the trial court granted Jones's request to represent
himself, but required his counsel to remain in the courtroom
to assist him if necessary.
then recalled C. W.-who had been previously examined by the
State and his counsel-for additional cross-examination.
Throughout Jones's cross-examination of C. W., he asked
numerous improper questions, and the State objected each time
that he did so. The court also interrupted Jones several
times to explain why certain questions were impermissible.
And after Jones asked C. W. a string of objectionable
questions, the State argued that he was badgering her, noting
that she had been on the witness stand for over two days and
Jones was not asking her any relevant questions. Immediately
thereafter, the court had the following exchange with Jones:
The court: Sir, I've told you you're bound by the
same rules of evidence that lawyers are. You can't just
say anything you want to. Move on to the next question.
Jones: I just asked the question a bad way. I just want to
get some truth of this, what happened that night.
The court: Sir, all of this is the truth. Move to
your next question.Jones then continued with his
cross-examination of C. W.
appeal, Jones argues that the trial court improperly
expressed its opinion on his guilt when-during the
victim's testimony-it stated "all of this is
true." Both parties agree that Jones failed to object at
the time when the court made this statement, but acknowledge
that we still review Jones's claim for plain error under
OCGA § 17-8-57 (b), which provides:
Except as provided in subsection (c) of this Code
section, failure to make a timely objection to an alleged
violation of paragraph (1) of subsection (a) of this Code
section shall preclude appellate review, unless such
violation constitutes plain error which affects
substantive rights of the parties. Plain error may be
considered on appeal even when a timely objection informing
the court of the specific objection was not made, so long as
such error affects substantive rights of the
regardless, under OCGA § 17-8-57 (c), "[s]hould any
judge express an opinion as to the guilt of the accused, the
Supreme Court or Court of Appeals or the trial court in a
motion for a new trial shall grant a new
during an exchange with Jones regarding his improper
questioning of the victim, the trial court expressed an
opinion as to his guilt. Specifically, during Jones's
cross-examination of C. W., the victim and only
eyewitness to the attack, the trial court stated that
"all of this is the truth." The State contends
that, taken in context, this statement was merely an attempt
by the court to "control the conduct of the trial and
guide [Jones][, ] who was acting as his own attorney."
This argument is a nonstarter. To the contrary, the damning
testimony offered by C. W. against Jones right before the
trial court's "all of this is truth" statement
extensively detailed the violence inflicted on her by Jones
during the incident at issue. Additionally, the plain
language of OCGA § 17-8-57 (c)-which applies when a
trial court expresses an opinion regarding a defendant's
guilt-does not remotely suggest that the court's
subjective intent in making the offending statement
is relevant. Indeed, all that matters are the words
expressed by the trial court. And this is perfectly
reasonable because the purpose of this statutory section-as
reflected by the relevant text-is to "keep the
jury from being influenced by the judge's
the State also contends that Jones cannot show plain error
because, inter alia, he has not demonstrated that
the trial court's comments likely affected the outcome of
the trial. But this contention is likewise without
merit because, under OCGA § 17-8-57 (c), when a court
expresses an opinion as to the defendant's guilt, he or
she shall be granted a new trial. We conclude,
then, that the trial court's statement that all of the
victim's testimony is "the truth" is equivalent
to communicating its belief to the jury that Jones was
guilty, even if that is not what it intended. As a ...