KIRKLAND v. THE STATE (Two Cases)

898 S.E.2d 536, 318 Ga. 639

• Court: Supreme Court of Georgia
• Decided: February 20, 2024
• Docket: S23A0942, S23A0943
• Status: Published

Opinion

318 Ga. 639 FINAL COPY

S23A0942. KIRKLAND v. THE STATE. S23A0943. OGLETREE v. THE STATE.

ELLINGTON, Justice.

A Fulton County jury found co-defendants Mark Kirkland and

Kendrick Ogletree guilty of malice murder and other offenses in

connection with the arson-related deaths of Deangelo Barbary and

Debra Morris.1 Both Kirkland and Ogletree contend that the trial

1 On July 14, 2017, a Fulton County grand jury returned an indictment

charging Kirkland and Ogletree with murder (two counts), felony murder (two counts), and arson in the first degree, and charging Ogletree with conspiracy to commit arson in the first degree and criminal solicitation. Kirkland and Ogletree were tried beginning on November 13, 2019, and on November 22, 2019, the jury found them guilty on all counts. On December 3, 2019, the trial court sentenced Ogletree to life in prison without the possibility of parole for the malice murder of Barbary, a concurrent sentence of life in prison with the possibility of parole for the malice murder of Morris, a consecutive ten-year sentence for conspiracy to commit arson in the first degree, and a concurrent three-year sentence for criminal solicitation. The two counts charging Ogletree with felony murder were vacated, and the count of arson in the first degree merged at sentencing with one of the malice murder counts. Kirkland was sentenced the same day to life in prison without the possibility of parole for the malice murder of Barbary and a concurrent life sentence without the possibility of parole for the malice murder of Morris. Kirkland’s two counts of felony murder were vacated, and the count of arson in the first degree merged at sentencing. Ogletree timely filed a motion for a new trial, which he amended through new counsel on March 31, 2022. Kirkland also filed a timely motion court erred by admitting improper character evidence and by

instructing the jury that it could consider this evidence to prove

their identity in the charged crimes. Kirkland also contends that

the trial court erred by failing to suppress evidence of a witness’s

identification of him in a photo lineup and admitting Ogletree’s

inculpatory out-of-court statements, that trial counsel was

constitutionally ineffective, and that the cumulative prejudice

from errors at trial deprived him of a fair trial. Ogletree separately

contends that the State’s evidence was insufficient to support his

convictions for murder, felony murder, and arson in the first

degree beyond a reasonable doubt.

As explained below, we conclude that Kirkland has failed to

prove that the trial court abused its discretion by admitting

evidence related to an eyewitness’s identification of him in a photo

for a new trial, which he amended through new counsel on March 31, 2022, April 1, 2022, and August 2, 2022. After a hearing was held on the motions for a new trial, the court entered orders denying both motions on March 29, 2023. Both Kirkland and Ogletree filed timely notices of appeal, and their cases were docketed in this Court to the August 2023 term and submitted for a decision on the briefs. 2 lineup, that trial counsel’s assistance was constitutionally

ineffective in any of the ways alleged, or that it was plain error to

admit evidence related to Ogletree’s pre-trial out-of-court

statements to his cellmate. We also conclude that the evidence was

sufficient to support Ogletree’s convictions for murder. Finally, we

conclude in both appeals that the evidence about which Kirkland

and Ogletree complain was admissible and that although the trial

court erred in its final instruction to the jury about the proper use

of admitted evidence of other acts, the improper instruction did not

affect the outcome of the proceedings considering the instructions

as a whole and given the strong evidence of guilt presented by the

State. Accordingly, we affirm both Kirkland’s and Ogletree’s

convictions.

The evidence presented at trial showed the following. In 2015,

Ogletree resided at 712 Jett Street and was a neighbor of Karen

Lyman, who lived at 716 Jett Street with six others, including the

two victims in this case, Barbary and Morris. Drugs were known

to be sold out of both 712 and 716 Jett Street, and there had been

3 altercations and disputes between residents of the two households,

primarily related to Ogletree’s concerns that residents of 716 Jett

Street were interfering with his drug business, which he conducted

with Kirkland. On November 9, 2015, a dog owned by James

Hardwick, who lived at 716 Jett Street, broke out from his yard

and knocked down one of Ogletree’s customers as he approached

Ogletree’s house to purchase drugs. When the customer left,

Ogletree confronted Hardwick and said that he was “going to do

something” because of the incident with the dog. That evening,

Ogletree, who was still angry, called the landowner of 716 Jett

Street and threatened to sue.

Shortly after midnight on November 10, 2015, a man later

identified by three eyewitnesses as Kirkland walked onto the front

porch of 716 Jett Street, lit an incendiary device, and threw it at

the front door, causing the house to erupt into flames. The bodies

of both Barbary and Morris were discovered by investigators in the

ashes. Following an autopsy, it was determined that both victims

died from inhalation of products of combustion, deep tissue burns,

4 and thermal injuries. Investigators also determined, based on

burn patterns, information gathered from witnesses, and the

presence of gasoline on the front porch and front door, that the fire

was intentionally set.

Investigators quickly focused their investigation on Kirkland

based on the statements of three witnesses, Qyoneshia Beard,

Betty Beard, and Stantecia Williams, who each told investigators

they were driving together on Jett Street just before the fire

started and saw a man wearing black clothing and a black skullcap

on the front porch of 716 Jett Street. They said the man shook an

object, threw the object at the house, and ran away to the back

yard of 712 Jett Street as the front porch and door of 716 Jett

Street burst into flames. Mykia Copeland, who also lived at 716

Jett Street, told investigators that as she left her house just before

the fire started, she saw a person wearing all black clothing and a

black skullcap walking from Ogletree’s house toward her house.

Investigators executed a search warrant at 712 Jett Street on

November 10, 2015. There, they found no evidence linked to the

5 fire, but Ogletree spontaneously told Detective Kyle Kleinhenz,

the lead detective investigating the arson and murders, “You are

not going to find any gas in the house.” Kleinhenz, at that time,

did not know the fire’s origin and had not told Ogletree that they

were looking for gasoline.

Several witnesses at trial testified about ongoing disputes

between Ogletree and the residents of 716 Jett Street. According

to these witnesses, Ogletree had previously accused Hardwick and

Hardwick’s father, who sold drugs out of the house at 716 Jett

Street, of being “snitches.” Ogletree claimed that Hardwick and his

father told the police about Ogletree’s drug sales, resulting in the

February 2015 raid of Ogletree’s house and the arrest of Kirkland

and Ogletree. Ogletree had also complained to several others about

people interfering with his customers and “slowing up” his money,

and had urged the owner of 716 Jett Street to evict Lyman.

In her first conversation with the investigators on November

10, Qyoneshia said she saw a skinny, male teenager with dark skin

wearing a black hoodie throw something at the house and then run

6 to the house next door. She gave a second statement later that

morning in which she said she saw a light-skinned male wearing

all black clothing set fire to the house and run to Ogletree’s house.

She recognized this person from him “being around” at Ogletree’s

house. Detective Kleinhenz then showed Qyoneshia a six-person

photo lineup and admonished her that the lineup may or may not

include a photo of the person and that she should only make an

identification if she could do so. Qyoneshia immediately identified

a photo of Kirkland as the person she saw wearing a black skullcap

and black camouflage clothing who “came right out of the back of

the house that night.” When Detective Kleinhenz specifically

asked whether Kirkland was the man Qyoneshia saw on the porch,

she stated, “[h]e could have been”; he “fits the description of the

person.” Because Qyoneshia immediately recognized Kirkland as

the person running away from the fire, Detective Kleinhenz asked

her to circle Kirkland’s photo.

A second photo lineup was shown to Qyoneshia on December

2, 2015, after Qyoneshia’s mother told investigators that Ogletree

7 threatened her, warning her that Qyoneshia “better not” testify.2

Using the same photos as in the first lineup but in a different

order, Detective Kleinhenz and Detective David Quinn, who knew

Qyoneshia’s mother and was assisting with the investigation,

presented Qyoneshia with the photos and asked her to describe

again what she saw on the night of the crimes. Qyoneshia said she

saw a male on the porch, and the male ran away when she started

to scream. When pressed as to whom she saw on the porch, she

replied, “the red man,” and described “the red man” as someone

she had known from the neighborhood for three or four years. She

said, “the red man” was dressed in black pants, boots, and a black

hoodie, she saw him throw something at the front door and run

next door, and then she saw the fire. After answering a few more

questions, Qyoneshia identified a photo of Kirkland as depicting

the man she saw. When Detective Quinn asked her why she

hesitated to identify Kirkland in the first lineup, she replied,

2 Qyoneshia also testified that prior to trial, another man, someone she

knew to be associated with Ogletree, told her not to testify.

8 “fear.”

At trial, Qyoneshia again identified Kirkland from the witness

stand as the man she saw set fire to 716 Jett Street. She testified

that she was intentionally vague in her first statement because

her uncle, who sold drugs from the house at 716 Jett Street, told

her to be quiet and let the “street” handle it. Betty Beard and

Stantecia Williams also identified Kirkland from the witness

stand as the man they saw throw something at the front of 716

Jett Street and then run toward Ogletree’s house. Williams further

testified that she saw Kirkland outside Ogletree’s house about an

hour after the fire wearing different clothing.

While Ogletree was incarcerated and awaiting trial, the

prosecutor’s office received a letter from Ogletree’s cellmate,

Gregory Escobar, indicating that Ogletree had made statements

about the fire. Escobar gave a recorded statement that was played

at trial in which he stated that Ogletree said he had attempted to

pay someone to set fire to 716 Jett Street on another occasion but

the man he hired took his money. Escobar also testified that

9 Ogletree told him Kirkland was his boyfriend; that Ogletree

nodded when Escobar asked him whether he knew that Kirkland

went to the neighbors’ house to set the fire; that Ogletree said “the

kerosene” had been in his basement; and that after the fire, he

instructed Kirkland to change out of his clothes because someone

may have seen him. While talking about the fire, Ogletree told

Escobar, “I got that b**ch.”

The State presented evidence at trial of another fire at 716

Jett Street that occurred in 2014, sixteen months before the

November 10 fire. That fire, like the November 10 fire, occurred

within a day of Ogletree’s argument with a resident of 716 Jett

Street. Officials were unable to determine the cause of the 2014

fire or whether an accelerant was used.

The State also presented evidence showing that Kirkland and

Ogletree were arrested together in February 2015 and charged

with possession of heroin with the intent to distribute. Their

arrests resulted from a narcotics investigation based on two

controlled buys of heroin from Ogletree’s home in January and

10 February 2015 that culminated in the execution of a search

warrant. During the search of Ogletree’s house, officers found

heroin, marijuana, $696 in cash, razors, a scale, and packing

materials. The charge against Kirkland was later dismissed, but

Ogletree was tried and convicted.

Portions of audio-recordings of two witness interviews

conducted during the investigation of the November 10 fire were

also played at trial. In the first, Victor Reese told investigators that

a month before the November 10 fire, Ogletree gave him $500, a

bucket filled with gasoline, and a hooded jacket and told him to set

fire to a house on Jett Street by throwing gas on the front door.

Reese declined Ogletree’s offer, however. Ogletree told Reese he

wanted to set the fire because “they were messing with his money.”

In the second recorded interview, Jerrel Hampton, who had

known Ogletree for at least 25 years, told investigators that on two

occasions Ogletree offered him money to set fire to 716 Jett Street.

Ogletree first asked Hampton to set fire to the house in 2013 and

asked him again on November 10, 2015. On the second occasion,

11 Ogletree offered Hampton $500 to set the fire and suggested he do

it at night with gasoline or an accelerant. When he made this offer,

Ogletree told Hampton he wanted to start the fire because

someone at 716 Jett Street pulled a gun and threatened him.3

Hampton declined Ogletree’s offer to set the fire.

S23A0942. Kirkland v. The State

1. Kirkland argues that the second lineup in which Qyoneshia

identified him as the arsonist was unduly suggestive because she

was told to circle Kirkland’s photo in the first lineup, the same six

photos were used in the second lineup as in the first, no admonitions

were given, and, he asserts, a detective told her to pick a photo,

suggesting that she had to pick a photo. Kirkland argues that these

circumstances invalidated the second identification procedure and

that the trial court erred by not suppressing evidence related to

Qyoneshia’s second identification of him.

3 Both Reese and Hampton testified at trial that they talked with investigators about their role in a prior arson attempt, but they claimed that they had lied to the investigators. Consequently, the State impeached them with their prior recorded statements.

12 The record shows that investigators presented Qyoneshia with

a second lineup after they learned that Ogletree had threatened her.

The second lineup contained the same six photos as the first, but the

photos were placed in a different order. During this procedure,

Detective Quinn handed the photos to Qyoneshia and said, “just say

the number.” Qyoneshia then identified Kirkland’s photo.

Kirkland’s counsel filed a pre-trial motion to suppress evidence

related to the second lineup, but the motion was denied based on the

trial court’s conclusion that neither lineup was impermissibly

suggestive.

An unduly suggestive procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, “This is our suspect.” Where the identification procedure is not unduly suggestive, it is not necessary to consider whether there was a substantial likelihood of irreparable misidentification.

Williams v. State, 286 Ga. 884, 888 (4) (b) (692 SE2d 374) (2010)

(citation and punctuation omitted). A trial court’s ruling that a

lineup was not impermissibly suggestive is reviewed for an abuse of

13 discretion. Westbrook v. State, 308 Ga. 92, 99 (4) (839 SE2d 620)

(2020).

Here, the record does not support Kirkland’s contentions that

the detectives’ actions during the second lineup led Qyoneshia to the

“virtually inevitable” conclusion that Kirkland was the perpetrator.

See Williams, 286 Ga. at 888 (4) (b). Kirkland cites no authority for

his proposition that use of the same photos in both lineups unduly

suggested that Qyoneshia should pick a particular photo, and we

have previously held that a lineup where the witness was shown the

same photo of the defendant in two lineups using the same photos

in a different order was not unduly suggestive. Kirkland v. State,

310 Ga. 738, 742 (2) (b) (854 SE2d 508) (2021). See also Clark v.

State, 279 Ga. 243, 245 (4) (611 SE2d 38) (2005) (no abuse of

discretion in trial court’s ruling that a lineup was not impermissibly

suggestive where the witness was shown two lineups and the

defendant’s photo was the only photo to appear in both). The

identification procedure used in this case was the same as that used

14 in Kirkland, 310 Ga. at 740 (2), and was no more suggestive than

the procedure in Clark.

As for Detective Quinn’s suggestion that Qyoneshia “say the

number,” the record shows that his request was not equivalent to

telling her which photo she should select or even that she had to pick

a photo. Rather, viewing the request in context, this request is

reasonably understood as Detective Quinn’s response to Qyoneshia’s

fear of identifying a suspect by saying that she did not need to say

the suspect’s name. See Ivey v. State, 277 Ga. 875, 876-877 (3) (596

SE2d 612) (2004) (concluding that officer’s question whether “one of

the guys pictured is the one [who committed the crimes]” did not

lead the witness “to the inevitable identification of [the defendant]

as the perpetrator” (punctuation omitted)).

Nor do we see merit in Kirkland’s claim that the second lineup

was unduly suggestive because Qyoneshia circled his photo in the

first lineup or the detectives failed to read an admonition form to

her. The record does not show that these circumstances can

reasonably be said to have led Qyoneshia to the “virtually inevitable 15 identification of [Kirkland] as the perpetrator.” Williams, 286 Ga. at

888 (4) (b) (citation and punctuation omitted). See also Roseboro v.

State, 308 Ga. 428, 434 (2) (a) (841 SE2d 706) (2020) (failure to read

an admonition form to the witness before making the identification

did not make the procedure unduly suggestive); Ivey, 277 Ga. at 876-

877 (3) (concluding that, although “it would have been preferable for

the investigating officer to give the witness the standard admonition

that the lineup may or may not contain a picture of the perpetrator,”

the officer’s failure to do so did not make the identification procedure

impermissibly suggestive). Accordingly, the trial court did not abuse

its discretion by denying Kirkland’s motion to suppress Qyoneshia’s

identification of him in the second lineup. See Thomas v. State, 310

Ga. 579, 585 (4) (853 SE3d 111) (2020).

2. In several enumerations of error, Kirkland contends that

trial counsel rendered constitutionally ineffective assistance. To

prevail on a claim of ineffective assistance of counsel, Kirkland must

show “both that counsel’s performance was deficient, and that the

deficient performance was prejudicial to his defense.” Lockhart v.

16 State, 298 Ga. 384, 385 (2) (782 SE2d 245) (2016). See also

Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984). To establish deficient performance, Kirkland

must “overcome the strong presumption that counsel’s performance

fell within a wide range of reasonable professional conduct, and that

counsel’s decisions were made in the exercise of reasonable

professional judgment.” Lockhart, 298 Ga. at 385 (2) (citation and

punctuation omitted). To meet the prejudice prong, Kirkland must

establish “a reasonable probability that, absent any unprofessional

errors on counsel’s part, the result of his trial would have been

different.” Id. at 385 (2). “If the defendant fails to satisfy either the

‘deficient performance’ or the ‘prejudice’ prong of the Strickland test,

this Court is not required to examine the other.” Redding v. State,

297 Ga. 845, 850-851 (5) (778 SE2d 774) (2015).

We address Kirkland’s claims of ineffective assistance in turn.

(a) Kirkland first contends that trial counsel was ineffective for

failing to challenge the second lineup in his pre-trial motion to

suppress on the same grounds on which he challenges the admission 17 of this evidence on appeal. See Division 1, supra. His claim is belied

by the record, however, which shows that counsel made the

arguments at the hearing on his motion to suppress that Kirkland

now contends should have been raised. Furthermore, Kirkland’s

mere assertion that the trial court would have granted the motion if

counsel had “more thoroughly” raised these same arguments does

not explain what else counsel should have argued that would have

resulted in a different outcome.4 For these reasons, Kirkland has

failed to show deficient performance on this ground. See Washington

v. State, 312 Ga. 495, 503 (3) (b) (863 SE2d 109) (2021) (“[D]eficiency

cannot be demonstrated by merely arguing that there is another, or

even a better, way for counsel to have performed.” (citation and

4 In a related claim, Kirkland argues that counsel was deficient for failing to call Detective Quinn as a witness at the motion to suppress hearing. Because he failed to make any showing of what evidence Detective Quinn would have offered about the lineup procedure had he been called as a witness that was not admitted through Detective Kleinhenz’s testimony, this claim also fails. See Lupoe v. State, 284 Ga. 576, 578-579 (3) (b) (669 SE2d 133) (2008) (defendant did not demonstrate ineffective assistance based on trial counsel’s failure to call an alibi witness where no testimony substantiated the claim that the witness’s testimony would have been favorable).

18 punctuation omitted)); Brown v. State, 303 Ga. 617, 621 (2) (b) (814

SE2d 364) (2018) (trial counsel’s performance was not deficient in

allegedly failing to cross-examine a witness about a particular issue

when counsel did explore that issue on cross-examination and the

appellant presented no argument as to how counsel could have

better developed that issue).

(b) Kirkland also asserts trial counsel provided ineffective

assistance by failing to establish at the hearing on his motion to

suppress that the detectives conducting the second lineup engaged

in malfeasance or coercive behavior by telling Qyoneshia to “say the

number” and not admonishing her as was done at the first lineup.

We held in Division 1, supra, however, that the trial court did not

abuse its discretion in admitting evidence of Qyoneshia’s

identification of Kirkland in the second lineup, and counsel cannot

be faulted for failing to move to suppress evidence on a ground that

would not have succeeded. See Peacock v. State, 314 Ga. 709, 721-

723 (4) (878 SE2d 247) (2022) (counsel was not ineffective for failing

to move to suppress evidence on a ground that would not have

19 succeeded); White v. State, 307 Ga. 882, 889 (3) (c) (838 SE2d 828)

(2020) (counsel’s failure to make a meritless motion does not support

a finding of ineffective assistance of counsel). Thus, Kirkland has

failed to show deficient performance with regard to this claim.

(c) Kirkland next asserts that trial counsel provided ineffective

assistance because he failed to investigate more thoroughly

Qyoneshia’s identification of Kirkland as the arsonist and failed to

ask her on cross-examination whether Kirkland was “the red man,”

to whom she referred when she spoke with the investigators. Had

counsel done so, he argues, the jury may have believed Qyoneshia

first identified Ogletree as “the red man,” thus creating reasonable

doubt regarding her subsequent identification of Kirkland.

“In the absence of evidence to the contrary, counsel’s decisions

are presumed to be strategic and thus insufficient to support an

ineffective assistance of counsel claim.” Mitchell v. State, 290 Ga.

490, 492 (4) (a) (722 SE2d 705) (2012) (citation and punctuation

omitted). Decisions about the investigation of a case and what

questions to ask on cross-examination are quintessential trial 20 strategy and will not constitute ineffective assistance unless they

are so patently unreasonable that no competent attorney would have

chosen that approach. Watts v. State, 308 Ga. 455, 460 (2) (841 SE2d

686) (2020) (decisions about what questions to ask on cross-

examination are quintessential trial strategy and rarely constitute

ineffective assistance); Romer v. State, 293 Ga. 339, 344 (3) (745

SE2d 637) (2013) (counsel’s tactical decision will not form the basis

for an ineffective assistance of counsel claim unless it was “so

patently unreasonable that no competent attorney would have

chosen it” (citation and punctuation omitted)).

Viewing counsel’s investigation and cross-examination

decisions in this light, we conclude that Kirkland has failed to meet

his burden of proving that trial counsel’s performance was deficient.

Trial counsel testified at the motion for a new trial hearing that he

tried but was unsuccessful in his efforts to interview Qyoneshia

before trial. Nevertheless, after reviewing the State’s file, he filed a

motion to suppress evidence of her identification of Kirkland in the

photo lineups. That motion was denied. After Qyoneshia identified

21 Kirkland at trial as the arsonist, counsel attempted on cross-

examination to both cast doubt on her identification and challenge

the completeness of the State’s investigation by showing that

investigators were “laser focused” on Kirkland to the exclusion of

other possible suspects. Under these circumstances, we cannot say

that trial counsel’s investigation of Qyoneshia’s identification of

Kirkland or his tactical decisions about cross-examining Qyoneshia

were patently unreasonable. See Davis v. State, 306 Ga. 140, 146 (3)

(e) (829 SE2d 321) (2019); see also Head v. State, 288 Ga. App. 205,

208 (2) (653 SE2d 540) (2007) (counsel’s decision not to question a

witness about an inconsistent statement was a question of trial

strategy not amounting to ineffective assistance).

Moreover, Kirkland has failed to show prejudice with regard to

this claim because he made no proffer of what a more thorough

investigation would have uncovered or what Qyoneshia would have

said if she was asked about her reference to “the red man.”

Qyoneshia was not called as a witness at the hearing on his motion

for a new trial, and Kirkland introduced no evidence as to what

22 Qyoneshia would have said in response to the unasked question.

Accordingly, Kirkland has failed to demonstrate ineffective

assistance on this ground. See Anthony v. State, 302 Ga. 546, 553-

554 (IV) (807 SE2d 891) (2017) (defendant failed to show counsel’s

failure to investigate a potential witness was deficient in the

absence of any evidence that the witness would have provided

relevant evidence); Lupoe v. State, 284 Ga. 576, 578-579 (3) (b) (669

SE2d 133) (2008) (defendant did not demonstrate ineffective

assistance based on trial counsel’s failure to call an alibi witness

where no testimony substantiated the claim that the witness’s

testimony would have been favorable).

(d) Kirkland contends that counsel provided ineffective

assistance by failing to object to statements made at trial

referencing his use of drugs and his sexual relationship with

Ogletree, as well as a witness’s comment suggesting that Kirkland

“don’t really like nobody.” Kirkland contends this evidence was

inadmissible under OCGA § 24-4-404 (“Rule 404”) (a) and (b)

because it placed his character in evidence and under OCGA § 24-4-

23 403 (“Rule 403”) because its probative value was substantially

outweighed by its prejudice.

(i) Failure to Object to Evidence of Kirkland’s Drug Use

Statements about Kirkland’s drug use and his dislike of others

were admitted through the testimony of Betty Beard as she

responded to the prosecutor’s question regarding how she knew

Kirkland. While explaining that she knew Kirkland from the

neighborhood, she briefly commented that she and Kirkland

frequented some of the same drug houses and then added that she

thought Kirkland was “like a sick person. He don’t really like

nobody.” The State asked no follow-up questions related to

Kirkland’s drug use or Betty Beard’s opinion of Kirkland’s

personality. At the motion for a new trial hearing, Kirkland’s

counsel stated that he did not believe the comment about

Kirkland’s drug use would have any effect on the jury’s findings

regarding identity, which was the main issue in the case, because

the case was about a dispute in a neighborhood where everyone

knew each other and drugs were prevalent. For this reason, rather 24 than highlighting the drug evidence by objecting, he focused on

discrediting Betty Beard’s identification testimony.

Betty Beard’s response that she knew Kirkland from the

neighborhood and that they had spent time together was relevant to

show the basis and credibility of her identification of Kirkland.

Although her comment that the houses they frequented were drug

houses may have incidentally put Kirkland’s character at issue, it

was a single, brief reference in a case where evidence of drug use

and the sale of drugs in the neighborhood and by the residents of

both 712 and 716 Jett Street was prevalent. Under these

circumstances, we cannot say that counsel’s strategic decision to

forgo objecting to her fleeting comment and instead focus the jury’s

attention on weaknesses in her identification of Kirkland as the

arsonist was so patently unreasonable that no competent lawyer

would have made the same decision. See Hayes v. State, 298 Ga. 98,

105 (2) (c) (779 SE2d 609) (2015) (“The matter of when and how to

raise objections is generally a matter of trial strategy.” (citation and

punctuation omitted)); Johnson v. State, 294 Ga. 86, 92-93 (7) (b)

25 (750 SE2d 347) (2013) (counsel’s decision to forgo objection to

witness’s testimony in favor of impeaching the witness was

reasonable trial strategy and did not support an ineffectiveness

claim); Armour v. State, 290 Ga. 553, 556 (2) (c) (722 SE2d 751)

(2012) (finding no prejudice in fleeting introduction of evidence of

prior charges because the charges were never mentioned again, the

defendant was impeached on other grounds, and the evidence

against the defendant was strong). Kirkland, therefore, has failed to

demonstrate constitutionally deficient performance, and this claim

fails.

(ii) Failure to Object to Evidence that Kirkland Did Not Like Other People

With regard to Betty Beard’s unsolicited opinion about

whether Kirkland was a “sick” person and “liked” other people,

Kirkland has failed to show that counsel’s failure to object was

unreasonable given that it was a passing reference that did not

obviously implicate Kirkland’s character and any potential prejudice

was minimized by the fact that no additional questions were asked.

26 See generally Johnson v. State, 256 Ga. 604, 605 (2) (351 SE2d 623)

(1987) (decided under former OCGA § 24-2-2) (witness’s passing

reference to a defendant’s criminal record did not place defendant’s

character in evidence). Accordingly, this claim fails because

Kirkland has not shown that reasonable counsel would not have

elected to forgo this objection. See Calhoun v. State, 308 Ga. 146, 151

(2) (b) (839 SE2d 612) (2020) (“[I]n the absence of testimony to the

contrary, counsel’s actions are presumed strategic.” (citation and

punctuation omitted)).

(iii) Failure to Object to Evidence of Kirkland’s Same-Sex Relationship with Ogletree

Evidence related to Kirkland’s relationship with Ogletree was

admitted at trial in two ways. Several witnesses who lived in the

neighborhood testified that they had seen Ogletree and Kirkland

together both in the neighborhood and at Ogletree’s house. In

addition, Ogletree’s cellmate, Gregory Escobar, was allowed to

testify about statements Ogletree made while they were

incarcerated. Prior to trial, the court ruled that although evidence

27 of the relationship between Kirkland and Ogletree would be

admissible at trial, the sexual nature of the relationship was not

relevant and witnesses would not be allowed to speculate about it.

This ruling was revisited at trial as Escobar began his testimony

and said that Ogletree told him that Kirkland was his boyfriend.

Following that statement, the court held a conference outside the

presence of the jury where Kirkland’s counsel confirmed that he had

no objection to a witness referring to Kirkland as Ogletree’s

boyfriend, but he would object to any witness speculating about the

sexual nature of the relationship. After the State noted that the

witness was not speculating and reassured the court that it expected

the witness to say only that Ogletree said he “was in a relationship

with” Kirkland or “was his boyfriend,” the court announced it would

allow Escobar to continue testifying. The jury returned to the

courtroom, and the following exchange occurred:

PROSECUTOR: And how did Mr. Ogletree describe his relationship with Mr. Kirkland? ESCOBAR: They were — they were lovers. PROSECUTOR: And this is — he told you this? ESCOBAR: In so many words, yes.

28 PROSECUTOR: And what does that mean? ESCOBAR: Well, he described the sexual acts. That’s for one. . . . They had an intimate relationship to the point where he said —

At this point, the prosecutor interrupted Escobar’s testimony and

began a new line of questioning.

Kirkland complains that his trial counsel provided ineffective

assistance by failing to object to evidence suggesting he was involved

in a sexual relationship with Ogletree and claims that he was

prejudiced by the admission of this evidence because it is likely the

jury convicted him because he is a “homosexual who had a proclivity

to follow his gay ‘lover’ Ogletree into crime.”

Again, we conclude Kirkland has failed to establish ineffective

assistance. Any objection to the admission of evidence of the general

nature of Kirkland’s relationship with Ogletree would have been

meritless given that it tended to show Kirkland’s relationship with

his co-defendant and his personal interest in the neighborhood

disputes. With regard to Escobar’s comment about the sexual nature

of the relationship, Kirkland’s counsel testified that he did not object

29 to this comment by Escobar because he knew other evidence about

the relationship would be admitted, and he felt comfortable that the

jury he selected would not be affected by the admission of this

evidence because he intentionally eliminated through voir dire

jurors who may have held a bias against persons involved in a same-

sex relationship. Under these circumstances, we cannot say that

counsel’s decision not to object to Escobar’s brief and truncated

reference to the sexual nature of Kirkland’s relationship with

Ogletree was so patently unreasonable that no competent lawyer

would have made the same decision. See State v. Abernathy, 289 Ga.

603, 609 (4) (d) (715 SE2d 48) (2011) (counsel’s failure to object to

evidence regarding defendant’s same-sex relationship with a

witness, who was also a co-arrestee, was not deficient because the

relationship was relevant; the State did not “belabor the issue

beyond this limited purpose”; and counsel “had sought through voir

dire to eliminate jurors who may have held biases against those

practicing homosexuality”); Hayes, 298 Ga. at 105 (2) (c); Johnson,

294 Ga. at 92-93 (7) (b). Kirkland, therefore, has failed to

30 demonstrate constitutionally deficient performance, and this claim

3. Evidence of Kirkland’s February 2015 arrest for possession

of heroin with the intent to distribute was admitted at trial pursuant

to Rules 403 and 404 (b) to show Kirkland’s motive and intent in the

charged crimes, i.e., that residents of 716 Jett Street were

interfering with Kirkland and Ogletree’s drug sales. Kirkland

argues that the trial court abused its discretion by admitting this

evidence because it was not relevant and its probative value was

substantially outweighed by the danger of unfair prejudice to him.

See OCGA § 24-4-403 (“Relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”). We disagree.

Evidence that reflects on a person’s character or trait of

character, which is inadmissible to show the person acted in

conformity with such character or trait, may nevertheless be 31 admitted under Rule 404 (b) for other purposes, including to show

“proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” OCGA § 24-4-404 (b).

Under the statutory framework of Rule 404 (b) and Rule 403,

extrinsic act evidence may be admitted if a three-part test is met: (1) the evidence is relevant to an issue in the case other than the defendant’s character, (2) the probative value is not substantially outweighed by the danger of unfair prejudice as required by Rule 403, and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act. When an appellate court reviews the admission of Rule 404 (b) evidence and the proper application of the Rule 403 balancing test, the trial court’s decision will not be disturbed unless there is a clear abuse of discretion.

West v. State, 305 Ga. 467, 473 (2) (826 SE2d 64) (2019) (citations

and punctuation omitted).

Kirkland does not challenge the trial court’s determination

that there was sufficient proof for the jury to find that he was

arrested in February 2015 and charged with possession of heroin

with the intent to distribute. Accordingly, we need only address the

32 first and second prongs to determine whether evidence of his prior

arrest was properly admitted at trial.

As stated, the trial court allowed this evidence, in part, for the

purpose of showing Kirkland’s motive, which we have defined as

“the reason that nudges the will and prods the mind to indulge the

criminal intent.” Brooks v. State, 298 Ga. 722, 726 (783 SE2d 895)

(2016) (citation and punctuation omitted). Kirkland argues this was

error because the evidence lacked any relevance and was offered by

the State solely to “suggest he had a proclivity to participate in

Ogletree’s criminal conduct.” This evidence, however, was relevant

to show Kirkland’s motive for committing the arson as it shed light

on the nature of the relationship between Kirkland and his

neighbors, especially because Ogletree believed his neighbors set

them up for this arrest, and showed that Kirkland was in

competition with his neighbors for drug sales. Accordingly, the trial

court did not abuse its discretion by deciding that evidence of

Kirkland’s prior arrest was relevant to the charged crimes to show

33 his motive.5 See Smart v. State, 299 Ga. 414, 417-418 (2) (a) (788

SE2d 442) (2016) (evidence of prior acts of domestic violence

committed by the defendant against the victim was relevant to show

the defendant’s motive in beating her).

We similarly identify no abuse of discretion in the trial court’s

findings related to the second prong, which requires a court to weigh

the probative value of the other-act evidence against the danger of

unfair prejudice under Rule 403.

The application of the Rule 403 test is a matter committed principally to the discretion of the trial courts, but as we have explained before, the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly. The major function of Rule 403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.

Smart, 299 Ga. at 418 (2) (b) (citations and punctuation omitted).

5 Because we conclude that evidence of Kirkland’s prior arrest was properly admitted to show motive and Kirkland asserts no claim regarding the trial court’s instruction that the jury could consider the evidence for intent, we need not consider whether it was admissible under Rule 404 (b) for the purpose of showing Kirkland’s intent. 34 Here, evidence that Kirkland was arrested for possession of

drugs with the intent to distribute showed not only that he may have

engaged in drug sales but also the nature of his relationship with

his neighbors and why he may have wanted to interfere with his

neighbors’ competing drug sales or retaliate against them after they

“snitched” to police, resulting in his arrest. Although this evidence

may have been prejudicial, as evidence of a defendant’s prior arrest

would tend to be, the jury also heard evidence that the charge

against Kirkland was later dismissed and

there was nothing inherent in this evidence that would create a risk that [Kirkland] would be convicted on a ground different from proof specific to the offense[s] charged. . . . [N]othing in the [testimony] would shock the average juror or otherwise render the jury incapable of weighing the evidence in a disinterested manner, and given the relevance of the evidence to the question of motive, we cannot say that any prejudice it might have caused outweighed its significant probative value.

Smart, 299 Ga. at 419 (2) (b) (citation and punctuation omitted).

Thus, Rule 403 was satisfied because the probative value of this

evidence was not substantially outweighed by the danger of unfair

35 prejudice. See Anglin v. State, 302 Ga. 333, 336-337 (3) (806 SE2d

573) (2017) (trial court did not abuse its discretion in performing the

balancing required by Rule 403 and admitting evidence of the

defendant’s gang membership to explain the defendant’s motive).

For all of these reasons, we discern no error in the trial court’s

decision to admit evidence of Kirkland’s prior arrest. See Smart, 299

Ga. at 416-419 (2).

4. Kirkland contends the trial court committed plain error by

admitting evidence of Ogletree’s pre-trial statements to Escobar as

statements of a co-conspirator under OCGA § 24-8-801 (d) (2) (E)

(“Rule 801 (d) (2) (E)”).6 Counsel did not object to the admission of

this evidence, and therefore, its admission is reviewed for plain

error. See Lupoe v. State, 300 Ga. 233, 243 (4) (794 SE2d 67) (2016);

see also OCGA § 24-1-103 (d) (“Nothing in this Code section shall

6 Specifically, Escobar was allowed to testify that Ogletree told him (1)

that the case was “about a fire” and “about his boyfriend on the second fire,” (2) that the kerosene was in his basement, and (3) that after the fire, Ogletree told Kirkland to change his clothes, in case anyone came looking for him. Escobar also testified that Ogletree nodded when he was asked whether he knew that Kirkland went to the neighbors’ house to set the fire.

36 preclude a court from taking notice of plain errors affecting

substantial rights although such errors were not brought to the

attention of the court.”).

To show plain error, a defendant must point to an error that

was “not affirmatively waived, the error must have been clear and

not open to reasonable dispute, the error must have affected his

substantial rights, and the error must have seriously affect[ed] the

fairness, integrity or public reputation of judicial proceedings.”

Lupoe, 300 Ga. at 243 (4) (citation and punctuation omitted). We

need not analyze all of the elements of the plain-error test when the

defendant has failed to establish one of them. See Stripling v. State,

304 Ga. 131, 135 (2) (816 SE2d 663) (2018).

Rule 801 (d) (2) (E) provides, in pertinent part, that admissions

by party-opponents shall not be excluded under the hearsay rule. An

“admission,” as applicable here, includes statements offered against

a party that were made by a co-conspirator “of a party during the

course and in furtherance of the conspiracy, including [statements]

made during the concealment phase of a conspiracy. OCGA § 24-8-

37 801 (d) (2) (E).” Kemp v. State, 303 Ga. 385, 392 (2) (b) (810 SE2d

515) (2018) (punctuation omitted). “To admit evidence under Rule

801 (d) (2) (E), the State is required to show by a preponderance of

the evidence that a conspiracy existed, the conspiracy included the

declarant and the defendant against whom the statement is offered,

and the statement was made during the course and in furtherance

of the conspiracy.” Id. The State need only make a prima facie case

of conspiracy to admit a co-conspirator’s statements. See Davis v.

State, 302 Ga. 576, 583 (4) (805 SE2d 859) (2017).

Kirkland concedes that Escobar’s testimony about Ogletree’s

inculpatory statements was admissible against Ogletree, but he

argues that it was not admissible against him under Rule 801 (d) (2)

(E) because the statements were not made in furtherance of the

conspiracy. We identify no clear error in the admission of this

evidence under Rule 801 (d) (2) (E) because the record shows the jury

was properly instructed as to the limited use of this evidence. The

record shows that the court instructed the jury that

[a]ny out-of-court statement by one of the defendants on 38 trial in this case, after the alleged criminal act has ended, may be considered only against the person who has made the statement, and only if you find that such statement was freely and voluntarily made.

Thus, contrary to Kirkland’s claim, the jury was specifically

instructed that Ogletree’s out-of-court statements could only be

considered against Ogletree, and there is no evidence that, as

Kirkland asserts, the interval between Escobar’s testimony and the

court’s final instructions impermissibly allowed the jury to use this

evidence for any improper purpose or that the jury ignored the trial

court’s instruction in deciding Kirkland’s guilt or innocence of the

charged crimes. See Bentley v. State, 307 Ga. 1, 8 (2) (b) (2) (834

SE2d 549) (2019) (recognizing that we ordinarily presume that

jurors follow the trial court’s instructions).

In a related claim, Kirkland argues that admission of Escobar’s

statements violated his due process rights under the Georgia and

United States Constitutions and that his constitutional right to be

confronted with the witnesses against him should be expanded, or

expanded beyond testimonial statements. See Bruton v. United

39 States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968). In the

absence of clear authority supporting his proposition that his right

to confront witnesses should be expanded, however, Kirkland’s

claim fails because he has failed to show clear error that is beyond

reasonable dispute. Lupoe, 300 Ga. at 243 (4); see Leonard v. State,

316 Ga. 827, 835 (3) (889 SE2d 837) (2023) (holding that the absence

of clear authority to support the proposition advanced by the

defendant on appeal prevented the finding of plain error); State v.

Herrera-Bustamante, 304 Ga. 259, 266 (2) (b) (818 SE2d 552) (2018)

(there was no clear error, and thus no plain error, where defendant

argued that evidence was inadmissible on a ground that would have

required extension of established precedent).

5. Kirkland also argues that the trial court was required under

OCGA § 24-1-104 (a) and (c) to hold a hearing related to the

admissibility of Ogletree’s statements to Escobar and that the court

erred by failing to do so. We disagree.

“OCGA § 24-1-104 (a) lays out the general standard for trial

court rulings on preliminary questions concerning the qualification 40 of a person to be a witness, the existence of a privilege, or the

admissibility of evidence[.]” Hampton v. State, 308 Ga. 797, 805 (3)

(c) (843 SE2d 542) (2020) (punctuation omitted). It does not require

the State to file a pre-trial motion for rulings on preliminary issues,

id., and it does not require a court to sua sponte hold such a hearing.7

6. Kirkland also challenges a portion of the trial court’s final

instructions. Specifically, he asserts that the trial court committed

plain error by instructing the jury that evidence of his February

2015 arrest for drug possession could be considered to prove his

identity in the charged crimes under Rule 404 (b). Under the facts

of this case, we disagree.

The record shows that immediately after the jury heard the

evidence regarding Kirkland’s prior arrest and Ogletree’s prior

arrest and conviction on drug charges, the court gave a limiting

7 The record shows that a pre-trial hearing was held regarding the admissibility of evidence of the nature of Kirkland and Ogletree’s relationship, and a similar discussion was held outside the presence of the jury before Escobar’s testimony on that subject was admitted at trial. There is no indication, however, that Kirkland sought a preliminary ruling on the admissibility of any other aspect of Escobar’s expected testimony, which, of course, he would have been authorized to do pursuant to OCGA § 24-1-104 (a). 41 instruction stating that other-act evidence could be used to attack

Ogletree’s credibility and nothing else. A short time later, the

State advised the court that the limiting instruction it gave was

incorrect and that the court should have instructed jurors that the

evidence could be used to show intent and motive, as those were

the purposes proposed by the State in its Rule 404 (b) motion. See

OCGA § 24-4-404 (b) (providing, in pertinent part, that “[t]he

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”). Both defense

attorneys agreed, and with the agreement of all parties, the court

instructed the jury to ignore its previous instruction and gave a

new instruction stating that evidence of other acts could be

considered to show the defendants’ intent and motive. However, in

its final instruction, the court told the jury that other-act evidence

could be used for the purpose of showing identity and motive.

Because Kirkland’s counsel did not object to the court’s final

42 instructions, this challenge is subject to plain-error review. See

Smith v. State, 315 Ga. 357, 362-363 (3) (882 SE2d 289) (2022);

OCGA § 17-8-58 (b).

This Court conducts a plain-error analysis of unrequested and

unobjected-to jury instructions under OCGA § 17-8-58 (b) and will

reverse “only if there was an instructional error that was not

affirmatively waived, was obvious beyond reasonable dispute,

likely affected the outcome of the proceedings, and seriously

affected the fairness, integrity, or public reputation of judicial

proceedings.” Smith, 315 Ga. at 363 (3) (citation and punctuation

omitted); see Lupoe, 300 Ga. at 243 (4). In this analysis, we

consider the court’s instructions as a whole, rather than looking at

the challenged instruction in isolation. Priester v. State, 316 Ga.

133, 139 (3) (886 SE2d 805) (2023).

Here, the court clearly erred when it instructed the jury that

it could use other-act evidence to prove identity in the charged

crimes, a purpose for which it was not offered by the State or

approved for admission by the court. At the time evidence of

43 Kirkland’s prior arrest was admitted, however, the jury was

instructed that its use of other-act evidence was limited to the

permissible purposes of showing intent and motive. The record

also shows that the jury was instructed numerous times during

trial that other-act evidence could not be used to show a

defendant’s character or propensity to commit the charged crimes.

Viewing the court’s instructions as a whole then, as we must, and

considering the strength of the evidence of Kirkland’s guilt, as

previously summarized, we conclude that although the court’s

general instruction regarding the use of other-act evidence, which

neither mentioned Kirkland nor referenced any specific other-act

evidence, was clearly erroneous, it likely did not affect the outcome

of the proceedings in his case. See Priester, 316 Ga. at 139 (3)

(court’s erroneous instruction that jury could use other-act

evidence for an improper purpose was harmless error where the

instructions, as a whole, reduced the likelihood that the error

contributed to the verdict and the jury was told it could not use

that evidence as proof of the defendant’s propensity to commit

44 crimes). See Gates v. State, 298 Ga. 324, 328 (3) (781 SE2d 772)

(2016) (admission of possibly improper evidence likely did not

affect outcome of trial where evidence of guilt was overwhelming).

Therefore, the third prong of the plain-error test has not been met,

and Kirkland’s challenge to the court’s final instruction fails. See

Burley v. State, 316 Ga. 796, 803 (888 SE2d 507) (2023) (“If one

prong of the plain error test is not satisfied, we need not address

the other prongs of the test.”).

7. Finally, Kirkland asserts that he is entitled to a new trial

because of the cumulative prejudicial effect of the trial court’s errors.

See State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020) (holding

that “Georgia courts considering whether a criminal defendant is

entitled to a new trial should consider collectively the prejudicial

effect of trial court errors”). To establish cumulative error, however,

an appellant must show that “at least two errors were committed in

the course of the trial.” Jackson v. State, 317 Ga. 95, 107 (4) (891

SE2d 866) (2023). Here, there is no basis for evaluating the

cumulative effect of errors because we have identified only one error

45 and rejected Kirkland’s other claims. See Flood v. State, 311 Ga. 800,

808-809 (2) (d) (860 SE2d 731) (2021) (finding no basis for evaluating

cumulative effect where only one error with respect to a jury charge

was shown).

S23A0943. Ogletree v. The State

8. Ogletree contends that the lack of physical evidence linking

him to the crimes and questionable credibility of several State

witnesses demands the conclusion that the evidence was

insufficient to sustain his convictions for murder.8

8 Ogletree also argues that the evidence was insufficient as to the felony

murder and arson charges. These arguments are moot given our conclusion that the evidence was sufficient to sustain Ogletree’s malice murder convictions and the fact that the trial court merged Ogletree’s conviction on the arson count into the murder count and his convictions on the felony murder counts were vacated by operation of law. See White v. State, 287 Ga. 713, 714- 715 (1) (a) (699 SE2d 291) (2010). With regard to the propriety of the trial court’s conclusion that the arson count merged into the murder count, the State failed to raise a merger error issue by cross-appeal, and the record shows that it did not raise an issue at the sentencing hearing. When the State fails to raise a merger error that benefits a defendant by cross-appeal, we will exercise our discretion to correct the error only in exceptional circumstances. See Dixon v. State, 302 Ga. 691, 696-698 (4) (808 SE2d 696) (2017) (“[W]hen a merger error benefits a defendant and the State fails to raise it by cross-appeal, we henceforth will exercise our discretion to correct the error upon our own initiative only in exceptional circumstances.”). There are no exceptional circumstances here, and we will not exercise our discretion to correct any error in sentencing. Id. 46 The test established in Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979), is the proper standard for

evaluating the sufficiency of the evidence as a matter of

constitutional due process. Under that test, we view all of the

evidence presented at trial in the light most favorable to the

verdicts and consider whether any rational juror could have found

the defendant guilty beyond a reasonable doubt of the crimes of

which he was convicted. See id. at 319 (III) (B); Fitts v. State, 312

Ga. 134, 141 (3) (859 SE2d 79) (2021). “This ‘limited review leaves

to the jury the resolution of conflicts in the evidence, the weight of

the evidence, the credibility of witnesses, and reasonable

inferences to be made from basic facts to ultimate facts.’” Muse v.

State, 316 Ga. 639, 647 (2) (889 SE2d 885) (2023) (citation

omitted).

In addition, “[e]very person concerned in the commission of a

crime is a party thereto and may be charged with and convicted of

commission of the crime.” OCGA § 16-2-20 (a). A person is

concerned in the commission of a crime if he, among other things,

47 “[d]irectly commits the crime” or “[i]ntentionally aids or abets” in

its commission. OCGA § 16-2-20 (b) (1), (3). “‘Conviction as a party

to a crime requires proof of a common criminal intent, which the

jury may infer from the defendant’s presence, companionship, and

conduct with another perpetrator before, during, and after the

crimes.’” Muse, 316 Ga. at 648 (2) (citation omitted).

Here, there was evidence from which the jury would be

authorized to conclude that Ogletree had an ongoing dispute with

his neighbors, whom he believed were interfering with his drug

sales and had notified the police of his criminal activities, and that

he shared with Kirkland a criminal intent to start the fire. There

was also evidence that after the fire, Ogletree told Kirkland to

change his clothing and attempted to intimidate a witness in an

effort to conceal their crimes. See Muse, 316 Ga. at 648 (2); State

v. Cash, 302 Ga. 587, 595 (807 SE2d 405) (2017) (“[I]f a defendant

has knowledge of the crime which is intended and shares in the

criminal intent of the principal actor, that defendant is an aider

and abettor.”). This evidence, when viewed in the light most

48 favorable to the verdicts, was sufficient as a matter of due process

to authorize the jury to find Ogletree guilty beyond a reasonable

doubt as either a direct participant in or party to the crime of the

malice murder of the victims. See Jackson, 443 U. S. at 319 (III)

(B). See also, e.g., Muse, 316 Ga. at 647-648 (2) (the State is not

required to prove that the defendant personally fired at the victim

to prove a defendant’s guilt as a party to a crime); Palmer v. State,

303 Ga. 810, 816 (IV) (814 SE2d 718) (2018) (evidence that the

defendant attempted to influence or intimidate a witness can serve

as circumstantial evidence of guilt); Cash, 302 Ga. at 595-596

(evidence that the defendant assented to and lent approval to the

commission of the crime by a co-defendant and lied to police after

the crime about the weapon used was sufficient to support the

jury’s finding that the defendant aided and abetted the crime). See

also OCGA § 16-2-20 (a), (b) (1), (3). Contrary to Ogletree’s

assertion, it was for the jury to determine the credibility of the

State’s witnesses. See Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d

223) (2009).

49 9. Ogletree also raises two claims related to the trial court’s

admission of evidence that he contends improperly put his

character in issue in violation of Rule 404 (b). He contends that the

trial court abused its discretion by admitting this evidence at trial,

specifically arguing that it was not relevant, violated Rule 404 (b)’s

prohibition on bad character evidence, and was highly prejudicial

and should have been excluded under Rule 403. We conclude that

none of these claims requires reversal.

(a) Prior Arrest and Conviction Evidence

Similar to Kirkland’s argument challenging the admission of

evidence of his prior arrest, see Division 3, supra, Ogletree contends

the trial court erred in ruling that evidence of his 2015 arrest and

conviction for possession of drugs with the intent to distribute was

admissible under Rules 403 and 404 (b) to show motive.9 Ogletree

does not challenge the sufficiency of the proof that he committed

9 Evidence of Ogletree’s 2015 conviction was admitted at trial without

objection. Evidence of the investigation leading to Ogletree’s 2015 arrest was admitted at trial over objection through the testimony of the officer involved in the investigation of that crime under Rule 404 (b) for the purpose of showing Ogletree’s motive and intent. 50 the prior crime, and for the same reasons explained in Division 3 of

Kirkland’s appeal, supra, we identify no abuse of discretion in the

trial court’s decision to admit evidence of Ogletree’s prior arrest and

conviction to prove his motive in the charged crimes. Even

assuming the evidence incidentally placed Ogletree’s character at

issue, it was relevant to show his motive for the charged crimes and

its probative value was not substantially outweighed by the danger

of unfair prejudice, especially given that there was other evidence

presented showing that Ogletree sold drugs from his home. See

Anglin, 302 Ga. at 336-337 (3). Accordingly, the trial court did not

abuse its discretion by admitting evidence of Ogletree’s prior

conviction. See Davis, 301 Ga. at 400 (2).

(b) Prior Fire Evidence

Evidence of the previous fire at 716 Jett Street was admitted

primarily through the testimony of Captain Jeff Cutral of the

Atlanta Fire Rescue, who testified that he investigated the 2014

fire but was unable to determine its cause. Other evidence showed

that the 2014 fire, like the 2015 fire, occurred within a day of an 51 altercation between Ogletree and a resident of 716 Jett Street. The

trial court admitted evidence of the prior fire for the purpose of

supporting the State’s theory that Ogletree was trying to eliminate

competing drug dealers and had asked others to burn his neighbors’

house as well as the purpose of showing the circumstances

surrounding the charged crimes. The State argues that evidence of

the prior fire was admissible without the notice required by Rule

404 (b) because it was intrinsic to the charged crimes. See Williams

v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350) (2017)

(stating that “[t]he limitations and prohibition on ‘other acts’

evidence set out in OCGA § 24-4-404 (b) do not apply to intrinsic

evidence” (punctuation and footnote omitted)). Neither defense

counsel objected to the admission of this evidence at trial, and

therefore, its admission is subject to plain-error review. Lupoe, 300

Ga. at 243 (4); see also OCGA § 24-1-103 (d).

As stated, to show plain error, a defendant must point to an

error that was “not affirmatively waived, the error must have been

clear and not open to reasonable dispute, the error must have

52 affected his substantial rights, and the error must have seriously

affected the fairness, integrity or public reputation of judicial

proceedings.” Lupoe, 300 Ga. at 243 (4) (citation and punctuation

We need not decide here whether it was clear error to admit

evidence of the earlier fire or whether such error was affirmatively

waived, however, because we conclude admission of this evidence

did not “affect[ ] [Ogletree’s] substantial rights.” See Lupoe, 300 Ga.

at 243 (4) (citation and punctuation omitted). The evidence of

Ogletree’s guilt, which included his admissions to Escobar, was

strong, and evidence of the prior fire was cumulative of both

evidence that Ogletree had previously tried to hire others to set fire

to 716 Jett Street and the numerous disputes between Ogletree and

his neighbors. See Virger v. State, 305 Ga. 281, 293-294 (7) (a) (824

SE2d 346) (2019) (holding that the trial court’s erroneous

admission of extrinsic-act evidence was harmless error because it

was cumulative of other, properly admitted evidence). Moreover,

the court instructed the jury that it could not conclude from the

53 other-act evidence admitted at trial either Ogletree’s bad character

or his propensity to commit the crimes, and jurors were reminded

that Ogletree was only “on trial for the offenses charged” in the

indictment and “not for any other acts, even though such acts may

incidentally be criminal.” Because we presume the jury followed the

court’s instruction not to use the other-act evidence to make

improper inferences about Ogletree’s propensity to commit the

crimes for which he was on trial, see Bentley, 307 Ga. at 8 (2) (b)

(2), any potential prejudice from the admission of evidence of the

prior fire was minimized by the court’s instructions as a whole. See

Howell v. State, 307 Ga. 865, 875-876 (3) (838 SE2d 839) (2020)

(admission of Rule 404 (b) evidence was harmless where the

evidence of defendant’s guilt was strong and the trial court

instructed the jury that it could consider the other-act evidence only

for the limited Rule 404 (b) purpose, that the defendant was on trial

only for the offenses charged in the indictment, and that the other-

act evidence, by itself, could not be a basis for conviction). Under

these circumstances, Ogletree has not met his burden of showing

54 that the assumed error affected his substantial rights, and he has

failed to demonstrate plain error on this ground.

(c) Evidence That Ogletree Sold Drugs

Ogletree similarly asserts that the trial court erred by

allowing several witnesses to testify that he sold drugs. He argues

that this evidence was highly prejudicial because the evidence

against him was weak, and the court failed to instruct the jury on

how it could use this other-act evidence. Like the evidence of

Ogletree’s prior arrest and the prior fire, the admission of this

evidence is subject to plain-error review because it was admitted

without objection. See Lupoe, 300 Ga. at 243 (4); OCGA § 24-1-103

(d).

Again, even assuming Ogletree could show that admission of

the witness testimony he now challenges was error and that the

error was not affirmatively waived, he has not shown prejudice.

There was other admissible evidence demonstrating that he sold

drugs, including evidence of his prior arrest and conviction for

possession of drugs with the intent to distribute. Moreover, as 55 discussed above, the evidence of Ogletree’s guilt, which included his

own admissions and evidence that he had tried, on several prior

occasions, to hire others to set fire to his neighbors’ house, was

strong. See Virger, 305 Ga. at 293-294 (7) (a). Accordingly, Ogletree

has failed to establish the third prong of the plain-error test, that

the error affected his substantial rights, and his claim of plain error

on this ground fails. See Burley, 316 Ga. at 803.

10. Ogletree also asserts that the trial court committed plain

error by instructing the jury that it could use evidence of his prior

arrest and conviction for possession of heroin with the intent to

distribute to show identity in the charged crimes. This is the same

argument raised by Kirkland and discussed in Division 6, supra,

and because Ogletree’s counsel did not object to the court’s

instruction, this alleged error is also reviewed under the plain-

error standard. See State v. Williams, 308 Ga. 228, 231 (1) (838

SE2d 764) (2020).

As in Kirkland’s appeal, the State here has conceded that the

court’s final instruction regarding the jury’s use of other-act

56 evidence was erroneous. We conclude, however, as we did in

Kirkland’s appeal, that any prejudice from the court’s erroneous

instruction was minimized because we consider the instructions as

a whole, and we presume the jury followed the court’s instruction

not to use the other-act evidence to make improper inferences

about Ogletree’s propensity to commit the crimes for which he was

on trial. See Priester, 316 Ga. at 140 (3). Moreover, as in Kirkland’s

appeal, we conclude that despite the erroneous instruction, it is

not likely that the jury used the evidence of Ogletree’s prior

conviction to establish identity, given the strength of the State’s

evidence against him. As detailed above, the evidence, including

Ogletree’s own admissions, showed that Ogletree had attempted

to hire others to set fire to his neighbors’ home, and when those

efforts failed, he conspired with Kirkland to set the fire. After the

fire, he then attempted to conceal the crimes. In these

circumstances, we cannot say that the court’s erroneous

instruction likely affected the outcome of Ogletree’s trial. See id.

at 139 (3); Jones v. State, 302 Ga. 892, 897-898 (3) (810 SE2d 140)

57 (2018) (court’s error in instructing the jury was harmless, given

the court’s instruction as a whole and the very strong evidence of

defendant’s guilt). Accordingly, Ogletree has failed to satisfy the

third prong of plain-error review, that the challenged instruction

likely affected the outcome of the proceedings. See Burley, 316 Ga.

at 803.

11. Although Ogletree does not argue that we should apply a

cumulative error review, we have assumed one trial court error of

an evidentiary nature and determined that the trial court erred in

its instruction to the jury regarding its use of other-act evidence

and concluded that both were harmless. Nevertheless, even

assuming that we must sua sponte apply a cumulative error

review under State v. Lane, 308 Ga. 10, 17 (1) (838 SE2d 808)

(2020), we conclude that Ogletree has failed to establish that the

combined prejudicial effect of the court’s erroneous jury

instruction and assumed trial court error in the admission of

evidence of his drug sales denied him a fundamentally fair trial.

See, e.g., Huff v. State, 315 Ga. 558, 568 (6) (883 SE2d 773) (2023)

58 (rejecting cumulative error claim “because Appellant ha[d] not

demonstrated that the prejudicial effect of the assumed trial court

errors and ineffective assistance denied him a fundamentally fair

trial, given the strong evidence against him”).

Judgments affirmed. All the Justices concur.

Decided February 20, 2024 — Reconsideration denied March

19, 2024.

Murder. Fulton Superior Court. Before Judge Krause.

Jacob D. Rhein, for appellant (case no. S23A0942).

Brian V. Patterson, for appellant (case no. S23A0943).

Fani T. Willis, District Attorney, Kevin C. Armstrong, Alex M.

Bernick, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Beth A. Burton, Deputy Attorney General, Clint C. Malcolm,

Senior Assistant Attorney General, Eric C. Peters, Assistant Attorney

General, for appellee.