FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
July 8, 2014
In the Court of Appeals of Georgia A14A0513. EVANS v. THE STATE.
MILLER, Judge.
Following a jury trial, Kelvin Lanier Evans aka Kevin Lee Woods was
convicted of one count of entering an automobile (OCGA § 16-8-18) and one count
of attempt to enter an automobile.1 (OCGA §§ 16-4-1; 16-8-18) Evans appeals from
the denial of his motion for a new trial, contending that the trial court erred in: (1)
admitting certain similar transaction evidence; (2) restricting Evans’s voir dire of
prospective jurors; and (3) refusing to grant a mistrial after striking evidence of at
least five similar incidents from the record. For the reasons that follow, we affirm.
1 The jury acquitted Evans of one additional count of entering another automobile, the trial court directed a verdict for Evans on four counts, and the State nolle prossed the remaining count. Viewed in the light most favorable to conviction,2 the evidence shows that on
March 18, 2008, Martin Fagan arrived at Joey D’s Oak Room about 7:00 p.m. for a
business dinner. The restaurant is located in DeKalb County near Perimeter Mall.
That evening, Fagan was driving his 2002 BMW 530I, he stopped at the
restaurant, and he left his Tumi briefcase in the backseat. Fagan’s briefcase contained
his Latitude laptop computer, his glasses and some work files. When Fagan returned
to his car after dinner, he saw that the rear passenger window was broken and his
briefcase and all of its contents were missing. Fagan did not give Evans or anyone
else permission to enter his vehicle that night.
On the night in question, Joey D’s had numerous surveillance cameras that
recorded video of areas around the restaurant including the parking lot. The cameras
showed a white vehicle entering the parking lot and backing into a space next to a
Pontiac Firebird. Two men got out of the vehicle and began walking around the
parking lot.
One of the men attempted to break the windows of the Firebird. Meanwhile,
the other man, who had exited the white vehicle empty handed, ran across the parking
lot and returned to the white vehicle with a briefcase in one hand. Both men got back
2 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2 into the white vehicle and sped away from the scene. The still shots taken from the
recorded video, which the jury viewed, clearly show the men who committed the
crimes.
1. Evans contends that the trial court erred in admitting similar transaction
evidence of his involvement in three prior incidents of entering an automobile. We
discern no error.
“Uniform Superior Court Rule 31.3 (B) requires the trial court to hold a pretrial
hearing to determine the admissibility of any similar transaction evidence the State
intends to offer at trial.” Johnson v. State, 289 Ga. 22, 25 (2), n.2 (709 SE2d 217)
(2011). At the pretrial hearing, the State has the burden of showing
that it seeks to introduce the evidence for an appropriate purpose; that there is sufficient evidence to establish that the accused committed the independent act; and that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.3
3 This case was tried under the old Evidence Code. Under the new Evidence Code, the provisions governing the admission of similar transaction evidence have changed. See .OCGA § 24-4-404 (b). These changes, however, are applicable to cases tried after January 1, 2013. See Ga. L. 2011, p. 99 § 101.
3 (Citations omitted.) Id. at 24 (2). “In assessing the admissibility of similar transaction
evidence, the proper focus is on the similarities, not the differences, between the
separate act and the crimes in question.” (Citation omitted.) Id. Moreover, “there can
be a substantial variation of circumstances where there exists a logical connection
between crimes which are essentially dissimilar.” (Punctuation and footnote omitted.)
Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007). We review the
trial court’s decision to admit similar transaction evidence for any abuse of its
discretion and the trial court’s factual findings as to the similarity of the incidents
under a clearly erroneous standard. Holloman v. State, 291 Ga. 338, 343 (6) (729
SE2d 344) (2012).
Here, the trial court held a pretrial hearing at which the State proffered
evidence of three similar transactions involving Evans for the purpose of showing
identity, plan, scheme and bent of mind.4 The first similar transaction involved a
charge of entering an automobile in August 2002 in a Fulton County shopping center
located on Peachtree Road. In that case, the State proffered that the victim’s car was
4 As more fully set forth in Division 3 below, the trial court, during Evans’s trial struck the evidence of the third similar transaction, and Evans moved for a mistrial. The trial court denied Evans’s motion, but instructed the jury to disregard the evidence of the third incident.
4 broken into and his briefcase was stolen, an officer pulled over a car in which Evans,
his co-defendant in this case, and another individual were riding, and the officer
found the victim’s briefcase.5
The State proffered that the second similar transaction involved the October
2002 theft of multiple laptops and briefcases from cars in the Perimeter Mall area in
DeKalb County; resulted in multiple charges which included entering an automobile;
and showed a pattern of multiple crimes committed on the same day with the same
co-defendant in this case and the same mode of operation – breaking the window and
taking laptops and briefcases. The State further proffered that Evans and his co-
defendant in this case were found guilty after a jury trial in which an eyewitness
positively identified Evans as the person he saw break into a car in a restaurant
parking lot. After the eyewitness alerted police, Evans and his co-defendant were
found in a shopping center parking lot with the stolen goods.6
5 Although the Fulton County incident was eventually dead docketed, “[i]t is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” (Citations and punctuation omitted.) Hill v. Suto, 298 Ga. App. 677, 680 (2) (680 SE2d 702) (2009). 6 The second similar transaction involved Evans’s conviction under his alias Kevin Lee Woods. See Woods v. State, 275 Ga. App. 340 (640 SE2d 609) (2005) (affirming Evans’s convictions on two counts of entering an automobile).
5 The State proffered that the third similar transaction occurred in February 2008
in a hospital parking deck; involved the same mode of theft – breaking into the
victim’s car by damaging the window and taking goods from the car, including the
victim’s Prada purse; and resulted in a guilty verdict at trial. The State further
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FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
July 8, 2014
In the Court of Appeals of Georgia A14A0513. EVANS v. THE STATE.
MILLER, Judge.
Following a jury trial, Kelvin Lanier Evans aka Kevin Lee Woods was
convicted of one count of entering an automobile (OCGA § 16-8-18) and one count
of attempt to enter an automobile.1 (OCGA §§ 16-4-1; 16-8-18) Evans appeals from
the denial of his motion for a new trial, contending that the trial court erred in: (1)
admitting certain similar transaction evidence; (2) restricting Evans’s voir dire of
prospective jurors; and (3) refusing to grant a mistrial after striking evidence of at
least five similar incidents from the record. For the reasons that follow, we affirm.
1 The jury acquitted Evans of one additional count of entering another automobile, the trial court directed a verdict for Evans on four counts, and the State nolle prossed the remaining count. Viewed in the light most favorable to conviction,2 the evidence shows that on
March 18, 2008, Martin Fagan arrived at Joey D’s Oak Room about 7:00 p.m. for a
business dinner. The restaurant is located in DeKalb County near Perimeter Mall.
That evening, Fagan was driving his 2002 BMW 530I, he stopped at the
restaurant, and he left his Tumi briefcase in the backseat. Fagan’s briefcase contained
his Latitude laptop computer, his glasses and some work files. When Fagan returned
to his car after dinner, he saw that the rear passenger window was broken and his
briefcase and all of its contents were missing. Fagan did not give Evans or anyone
else permission to enter his vehicle that night.
On the night in question, Joey D’s had numerous surveillance cameras that
recorded video of areas around the restaurant including the parking lot. The cameras
showed a white vehicle entering the parking lot and backing into a space next to a
Pontiac Firebird. Two men got out of the vehicle and began walking around the
parking lot.
One of the men attempted to break the windows of the Firebird. Meanwhile,
the other man, who had exited the white vehicle empty handed, ran across the parking
lot and returned to the white vehicle with a briefcase in one hand. Both men got back
2 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2 into the white vehicle and sped away from the scene. The still shots taken from the
recorded video, which the jury viewed, clearly show the men who committed the
crimes.
1. Evans contends that the trial court erred in admitting similar transaction
evidence of his involvement in three prior incidents of entering an automobile. We
discern no error.
“Uniform Superior Court Rule 31.3 (B) requires the trial court to hold a pretrial
hearing to determine the admissibility of any similar transaction evidence the State
intends to offer at trial.” Johnson v. State, 289 Ga. 22, 25 (2), n.2 (709 SE2d 217)
(2011). At the pretrial hearing, the State has the burden of showing
that it seeks to introduce the evidence for an appropriate purpose; that there is sufficient evidence to establish that the accused committed the independent act; and that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.3
3 This case was tried under the old Evidence Code. Under the new Evidence Code, the provisions governing the admission of similar transaction evidence have changed. See .OCGA § 24-4-404 (b). These changes, however, are applicable to cases tried after January 1, 2013. See Ga. L. 2011, p. 99 § 101.
3 (Citations omitted.) Id. at 24 (2). “In assessing the admissibility of similar transaction
evidence, the proper focus is on the similarities, not the differences, between the
separate act and the crimes in question.” (Citation omitted.) Id. Moreover, “there can
be a substantial variation of circumstances where there exists a logical connection
between crimes which are essentially dissimilar.” (Punctuation and footnote omitted.)
Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007). We review the
trial court’s decision to admit similar transaction evidence for any abuse of its
discretion and the trial court’s factual findings as to the similarity of the incidents
under a clearly erroneous standard. Holloman v. State, 291 Ga. 338, 343 (6) (729
SE2d 344) (2012).
Here, the trial court held a pretrial hearing at which the State proffered
evidence of three similar transactions involving Evans for the purpose of showing
identity, plan, scheme and bent of mind.4 The first similar transaction involved a
charge of entering an automobile in August 2002 in a Fulton County shopping center
located on Peachtree Road. In that case, the State proffered that the victim’s car was
4 As more fully set forth in Division 3 below, the trial court, during Evans’s trial struck the evidence of the third similar transaction, and Evans moved for a mistrial. The trial court denied Evans’s motion, but instructed the jury to disregard the evidence of the third incident.
4 broken into and his briefcase was stolen, an officer pulled over a car in which Evans,
his co-defendant in this case, and another individual were riding, and the officer
found the victim’s briefcase.5
The State proffered that the second similar transaction involved the October
2002 theft of multiple laptops and briefcases from cars in the Perimeter Mall area in
DeKalb County; resulted in multiple charges which included entering an automobile;
and showed a pattern of multiple crimes committed on the same day with the same
co-defendant in this case and the same mode of operation – breaking the window and
taking laptops and briefcases. The State further proffered that Evans and his co-
defendant in this case were found guilty after a jury trial in which an eyewitness
positively identified Evans as the person he saw break into a car in a restaurant
parking lot. After the eyewitness alerted police, Evans and his co-defendant were
found in a shopping center parking lot with the stolen goods.6
5 Although the Fulton County incident was eventually dead docketed, “[i]t is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” (Citations and punctuation omitted.) Hill v. Suto, 298 Ga. App. 677, 680 (2) (680 SE2d 702) (2009). 6 The second similar transaction involved Evans’s conviction under his alias Kevin Lee Woods. See Woods v. State, 275 Ga. App. 340 (640 SE2d 609) (2005) (affirming Evans’s convictions on two counts of entering an automobile).
5 The State proffered that the third similar transaction occurred in February 2008
in a hospital parking deck; involved the same mode of theft – breaking into the
victim’s car by damaging the window and taking goods from the car, including the
victim’s Prada purse; and resulted in a guilty verdict at trial. The State further
proffered that it planned to offer a video of this incident showing Evans carrying the
victim’s purse. The trial court accepted the State’s proffer, and admitted evidence of
the three similar transactions over trial counsel’s ongoing objection.
As set forth above, the decision to admit similar transaction evidence is within
the trial court’s discretion and that decision will not be disturbed absent an abuse of
discretion. See Matthews v. State, 294 Ga. 50, 52 (3) (a) (751 SE2d 78) (2013). Here,
the trial court properly concluded that the State introduced the similar transactions for
a proper purpose—to show identity, plan, scheme and bent of mind; there was
sufficient evidence that Evans committed the independent offenses; there was a
sufficient connection or similarity between the independent offenses; and the
probative value outweighed the prejudicial effect. Notably, the similar transactions
involved crimes that were almost identical to the crimes in this case —the breaking
of car windows in parking lots, and the theft of a briefcase, laptop or other items from
those cars. Accordingly, there is no evidence to dictate that the trial court abused its
6 discretion in admitting evidence of the similar transactions. See Woods, supra, 275
Ga. App. at 342 (1) (holding that trial court did not abuse its discretion in admitting
similar incidents for the purpose of showing identity, plan, scheme, and bent of
mind).
2. Evans contends that the trial court erred in prohibiting him from questioning
potential jurors to determine if evidence of his prior convictions would prejudice
them in evaluating the evidence in this case. We disagree.
With regard to the trial court’s limitation on voir dire, Evans was entitled under
OCGA § 15-12-133 to examine the individual jurors as to any matter or thing that
would illustrate any bias of the juror in the case. See Stell v. State, 210 Ga. App. 662
(1) (436 SE2d 806) (1993). However, hypothetical questions involving evidence,
such as the question in this case, that would require a response from a juror that might
amount to a prejudgment of the case are improper and should be excluded from voir
dire. See id; see also Anderson v. State, 236 Ga. App. 679, 682 (3) (513 SE2d 235)
(1999) (prejudgment questions may not be asked in voir dire). Accordingly, the trial
court did not err in prohibiting defense counsel’s examination of the prospective
jurors regarding their possible reaction to Evans’s prior convictions.
7 3. Evans contends that the trial court should have granted his motion for a
mistrial after striking evidence of other incidents of entering automobiles. We do not
agree.
After the State rested its case, Evans moved for a mistrial based on the trial
court’s admission of the August 2002 and the February 2008 similar transactions,
arguing that the evidence presented by the State during trial differed from the State’s
pretrial proffer. The trial court struck the evidence from the February 2008 similar
transaction. The trial court denied Evans’s motion for a mistrial, and ruled that
evidence of the first two similar transactions in August 2002 and October 2002 were
admissible.
Evans then moved for a directed verdict on four of the eight counts charged in
Evans’s indictment. The trial court granted Evans’s motion for a directed verdict on
Counts 2, 4, 5, and 8 of the indictment, finding that there was insufficient evidence
to justify a finding beyond a reasonable doubt that Evans’s committed those offenses.
The trial court then denied Evans’s renewed motion for a mistrial, and, without
objection, instructed the jury to disregard evidence of the additional counts which
resulted in directed verdicts, as well as the evidence of the third similar transaction.
8 The circumstances of this case do not show that the trial court abused its discretion
in denying Evans’s motion for a mistrial.
“The decision to grant a mistrial is within the discretion of the trial court and
will not be disturbed on appeal unless there is a showing that a mistrial is essential
to the preservation of the right to a fair trial.” (Citation omitted.) Jackson v. State, 292
Ga. 685, 689 (4) (740 SE2d 609) (2013); see also Norwood v. State, 252 Ga. 292, 294
(3) (313 SE2d 98) (1984) (denial of mistrial does not constitute grounds for reversal
unless mistrial is mandated to ensure fair trial). Prejudice in the minds of the jury
cannot be assumed merely because the trial court grants a directed verdict on some
of the charged crimes. See Harbin v. State, 193 Ga. App. 248, 251 (5) (387 SE2d 367)
(1989).
Here, the trial court’s instruction to the jury to disregard evidence of the third
similar transaction and the counts on which the trial court directed a verdict was
sufficient to correct any error in admitting this evidence during the State’s case in
chief. See Rucker v. State, 293 Ga. 116, 121 (2) (744 SE2d 36) (2013) (curative
instruction sufficient to correct any error); Dulcio v. State, 292 Ga. 645, 648 (2) (740
SE2d 574) (2013) (no abuse of discretion in failing to grant mistrial where trial court
instructed jury to disregard stricken comments). Moreover, the fact that the jury
9 acquitted Evans on one of the three remaining counts showed that the jurors were not
prejudiced by evidence of the other crimes. See Smith v. State, 271 Ga. 507, 508 (3)
(521 SE2d 562) (1999) (lack of apparent prejudice where jury acquitted defendant on
malice murder and convicted instead on felony murder). Accordingly, Evans has not
shown that a mistrial was essential to the preservation of his right to a fair trial.
Judgment affirmed. Doyle, P. J., and Dillard, J., concur.