308 Ga. 894 FINAL COPY
S20A0414. ROUZAN v. THE STATE.
BOGGS, Justice.
Appellant Seth Joseph Brian Rouzan challenges his 2013
convictions for malice murder and another crime in connection with
the shooting death of Joseph Williams, Jr. Appellant claims that the
trial court applied the wrong legal test in admitting other acts
evidence; committed plain error in failing to instruct the jury that
an accomplice’s testimony is not sufficient to establish a fact unless
corroborated; and abused its discretion in denying his request to
continue the hearing on his motion for new trial based on his motion-
for-new-trial counsel’s admitted failure to prepare for the hearing.
We conclude that the trial court erred in applying an obsolete legal
standard to allow the State to introduce the other acts evidence.
Accordingly, we vacate the trial court’s judgment and remand the
case for the trial court to apply the correct test under the current Evidence Code in exercising its discretion to decide whether the
other acts evidence should have been admitted.1
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following. On August 21, 2012,
1 Williams was killed on August 21, 2012. On November 13, 2012, a
Richmond County grand jury indicted Appellant and Ronnie Jermaine Pontoon for malice murder, felony murder based on attempted armed robbery, and felony murder based on aggravated assault. Appellant also was charged with possession of a firearm during the commission of a felony by a person previously convicted of a felony involving the use or possession of a firearm, see OCGA § 16-11-133 (b) (1), and Pontoon was charged with possession of a firearm during the commission of a felony, see OCGA § 16-11-106 (b) (1). In May or June 2013, Pontoon, a minor, was allowed to enter a guilty plea to a reduced charge of attempted armed robbery in exchange for testifying against Appellant. On December 3, 2013, Appellant was re-indicted, and at a trial from December 16 to 19, 2013, the jury found him guilty of all charges. The trial court sentenced Appellant to serve life in prison without the possibility of parole for malice murder and a consecutive term of 15 years for the firearm conviction; the felony murder verdicts, which the trial court purported to merge into the malice murder verdict, were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (434 SE2d 479) (1993). On December 27, 2013, Appellant filed a motion for new trial. More than five years later, on April 16, 2019, the trial court scheduled a hearing on the new trial motion for May 17, 2019. On April 30, 2019, Appellant, represented by new counsel, filed a motion to convert the hearing into a Uniform Superior Court Rule 41.2 status conference, which the trial court summarily denied on May 2, 2019. On May 14, 2019, the trial court rescheduled the motion for new trial hearing for May 21, 2019. At the May 21 hearing, Appellant’s attorney announced that she had not been able to work on the new trial motion due to the press of other cases and requested a continuance, which the trial court denied. With the court’s permission, Appellant filed an amended new trial motion in open court. On May 23, 2019, the trial court denied the motion. Appellant filed a timely notice of appeal. The case was docketed in this Court to the term beginning in December 2019 and was orally argued on April 23, 2020. Williams’ eight-year-old son got out of school at 4:15 p.m. The child’s
grandmother picked him up at school and dropped him off with
Williams, who was sitting in the parking lot of his apartment
complex drinking beer with a friend. Appellant walked up to
Williams and asked for some pills, and Williams replied, “Hold up.”
Williams then walked his son, who had asked for something to eat,
to a nearby fast food restaurant.
Fifteen-year-old Ronnie Pontoon lived in the same apartment
complex as Williams but in a different building. Pontoon was
walking home with his brother when he saw Terrence Scriven
talking to Appellant in the breezeway of Pontoon’s building. Scriven
called Pontoon over and asked Pontoon if he had a gun, and Pontoon
asked why. Appellant said that he wanted to buy the gun and asked
Pontoon what type it was. Pontoon said it was a .22, and Appellant
asked, “How much?” Pontoon replied, “Thirty dollars.” Appellant
agreed to buy the gun, saying that he needed it for a robbery.
Pontoon went to his apartment on the first floor to get the gun,
which actually belonged to his brother. He went into the bedroom that he and his brother shared and asked his brother if he could get
the gun, but his brother said, “No.” Appellant then came around to
the bedroom window, which was open, and asked Pontoon’s brother
for the gun, but Pontoon’s brother again said, “no.” When Pontoon’s
brother went into the bathroom, Pontoon took the gun from the
bedroom closet, went outside, and gave the gun to Appellant.
Appellant said that he would meet up with Pontoon after the robbery
to pay him at the home of Tymeka Jones, who lived in a nearby
apartment complex. Pontoon then went to Jones’ apartment to wait
for Appellant.
Meanwhile, Williams and his son returned from the
restaurant, and Williams’ son began playing outside. Shortly before
5:53 p.m., Williams’ son saw Appellant approach Williams with a
gun.2 Appellant again asked for some pills, and Williams replied, “I
guess.” Appellant then asked for the whole bottle, and when
Williams refused, Appellant shot Williams in the forearm and in the
2 According to Williams’ son, Appellant got the gun out of a Ford truck,
which no other witness mentioned. chest, killing him. Appellant then went to Jones’ apartment, where
he paid Pontoon and hid the gun in a washing machine.
The next day, Investigator Chris Langford of the Richmond
County Sheriff’s Office and his partner went to Williams’ apartment
complex to canvass for witnesses who had not yet come forward. The
officers saw Pontoon and his brother and went to speak with them,
but Pontoon “took off running on foot.” Pontoon’s brother stayed and
spoke with the officers, and at some point, Pontoon’s brother told
Langford that Appellant “was actually the person with the gun and
the one that did the robbery.”
The following day, Williams’ son was shown a six-man
photographic lineup and identified Appellant as the person who shot
his father. That night, Appellant went to the police station, where
Langford interviewed him. Appellant initially denied being in the
area when the shooting occurred and said that he did not know
anything about it but eventually acknowledged that he was at
Williams’ apartment complex around the time of the shooting.
Appellant claimed that he went there to buy marijuana from someone that he knew only as “Mr. Mike,” that he overheard
Pontoon talking to Terrence Scriven and another man about robbing
Williams, and that he saw Pontoon with a gun. However, Appellant
denied that he was involved in the shooting.
Williams’ son was nine years old at the time of Appellant’s
trial. Williams’ son testified that he saw Appellant shoot his father.3
Pontoon testified about selling the gun to Appellant to commit a
robbery on the day of the shooting and about meeting up with
Appellant later that day to receive payment of $30. The medical
examiner who performed the autopsy on Williams testified, as did
Investigator Langford and several other law enforcement officers
who were involved in the investigation. The State also introduced
extensive evidence of Appellant’s involvement in the December 2006
shooting death of Jeffrey LaBord that resulted in Appellant’s entry
of negotiated guilty pleas to voluntary manslaughter and burglary
in July 2009.
3 Williams’ son also testified that he saw only the first shot, which he did
not think hit his father, and that he heard but did not see the additional shots, because he “ran behind the apartments” after the first shot. Appellant took the stand in his own defense. Appellant
testified that on the day of Williams’ murder, he went to Williams’
apartment complex to buy marijuana from a man named “Mike.”
Appellant said that when he arrived, Mike, Pontoon, and Scriven
were talking about robbing someone who lived in the complex, that
a gun was mentioned, that Mike went to get the marijuana, and that
as Mike was coming back, Appellant saw Pontoon with what looked
like a gun. Appellant stated that when he left, Pontoon was still
there, and that he heard gunshots as he was walking away from the
complex. Appellant admitted that he “may have seen” Williams’ son
at the complex but denied having any contact with either Williams
or Williams’ son that day.
Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
with this Court’s usual practice in murder cases, we have reviewed
the record and conclude that, when viewed in the light most
favorable to the verdicts, the evidence presented at trial and
summarized above was sufficient as a matter of constitutional due process to authorize a rational jury to find Appellant guilty beyond
a reasonable doubt of the crimes for which he was convicted. See
Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979). See also OCGA § 16-2-20 (defining parties to a crime); Vega
v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury
to determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.’” (citation omitted)).
2. Appellant contends — and the State concedes — that the
trial court erred when it applied the wrong legal test in deciding
whether to admit the other acts evidence concerning the shooting
death of Jeffrey LaBord. We agree.
On February 13, 2013, the State filed a “Notice of State’s Intent
to Present Evidence of Similar Transactions” for the purposes of
showing Appellant’s intent, knowledge, course of conduct, bent of
mind, and motive. On April 5, 2013, the trial court held a “Similar
Transaction Hearing,” at which the State said that it sought to
admit evidence of Appellant’s involvement in the December 2006
robbery and shooting death of LaBord to show Appellant’s intent, knowledge, and motive with respect to the pending charges; the
State did not mention course of conduct or bent of mind. The State
recited the pending charges against Appellant; recounted what it
expected the evidence at trial to show regarding Williams’ murder;
and noted that Appellant’s firearm charge for violating OCGA § 16-
11-133 (b) (1) was based on his July 2009 guilty pleas to burglary
and voluntary manslaughter in connection with the shooting death
of LaBord.4 The State also outlined the “similar transaction”
evidence that it intended to present at Appellant’s trial. According
to the State’s proffer, the “similar transaction” evidence would show
as follows. Early on the morning of December 12, 2006, LaBord’s
body was found lying in the street. LaBord’s house was robbed, and
his car, which had blood in it, was found behind a vacant house in
Appellant’s neighborhood. Within hours of the shooting, Appellant
was attempting to sell items taken from LaBord’s house to people
who lived in Appellant’s neighborhood. Appellant lived with his
4 The trial court later indicated that it would bifurcate the OCGA § 16-
11-133 (b) (1) charge if it excluded the other acts evidence. parents, who consented to a search of their house that evening. A
pair of Appellant’s shoes recovered from underneath his bed had
blood on them, which DNA testing later showed came from LaBord.5
On May 3, 2013, the trial court entered a “Similar Transaction
Order,” finding that the State met its burden under Williams v.
State, 261 Ga. 640 (409 SE2d 649) (1991),6 and allowing the State to
admit the evidence for the purposes of showing Appellant’s intent,
knowledge, and motive. At Appellant’s December 2013 trial, more
than half the testimony and more than two-thirds of the exhibits
related to the LaBord incident. The trial court gave an other acts
5 Appellant was indicted for the malice murder of LaBord, felony murder
based on aggravated assault, armed robbery, possession of a firearm during the commission of a crime, and the burglary of LaBord’s house. Appellant was tried for those crimes, but his trial ended in a mistrial. On July 13, 2009, Appellant entered negotiated guilty pleas to voluntary manslaughter and burglary and was sentenced to serve twenty years in prison with the first five years in confinement and the balance on probation. 6 Under Georgia’s old Evidence Code, when offering similar transaction
evidence, the State had the burden to show that: (1) it sought to introduce the evidence “not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility”; (2) “there [was] sufficient evidence to establish that the accused committed the independent offense or act”; and (3) “there [was] a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tend[ed] to prove the latter.” Williams, 261 Ga. at 642. limiting instruction before evidence of the LaBord incident was
introduced and repeated the instruction as part of the jury charge.
Both the so-called “Similar Transaction Hearing” and
Appellant’s trial took place after the current Evidence Code went
into effect on January 1, 2013. See Ga. L. 2011, p. 99, § 101 (“This
Act shall become effective on January 1, 2013, and shall apply to any
motion made or hearing or trial commenced on or after such date.”).
Under the current Evidence Code, the admission of evidence of
“other crimes, wrongs, or acts” is governed by OCGA § 24-4-404 (b).
Such other acts evidence is admissible under OCGA § 24-4-404 (b)
only if: (1) the evidence is relevant to an issue in the case other than
the defendant’s character; (2) the probative value of the evidence is
not “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,” OCGA § 24-4-403; and (3) there is sufficient proof for a
jury to find by a preponderance of the evidence that the defendant
committed the other act. See Worthen v. State, 306 Ga. 600, 604-605 (832 SE2d 335) (2019). See also Hood v. State, 299 Ga. 95, 101-105
(786 SE2d 648) (2016) (discussing the proper application of this
three-part test). But instead of applying the test for the admission
of other acts evidence under the current Evidence Code, the trial
court applied the test that we articulated in Williams for admitting
similar transaction evidence under the old Evidence Code. This was
error.
Moreover, the evidence of Appellant’s involvement in the
December 2006 shooting death of LaBord and Appellant’s resulting
guilty pleas to voluntary manslaughter and burglary in July 2009
was not relevant to the non-character purposes of proving
Appellant’s motive for committing the crimes for which he was on
trial or any relevant “knowledge” on his part as that term is used in
OCGA § 24-4-404 (b). See Kirby v. State, 304 Ga. 472, 487 (819 SE2d
468) (2018) (holding that the State’s argument that an armed
robbery showed the defendant’s “inclination” to use violence to
obtain money as he did in the crimes charged was a “classic improper
propensity argument . . . identifying his motive to act in far too generic a fashion”); Thompson v. State, 302 Ga. 533, 540 (807 SE2d
899) (2017) (holding that where the only similarities between an
attempted armed robbery and the charged armed robberies and
murders were the “all-too-common elements of guns and an
assortment of co-conspirators,” other acts evidence of the attempted
armed robbery was not admissible to prove the defendant’s motive
for committing the charged crimes); Paul S. Milich, Ga. Rules of
Evidence § 11:17 (Oct. 2019 update) (explaining that “knowledge” in
OCGA § 24-4-404 (b) refers either to a special skill like safecracking,
bomb-making, or document forgery or to specific knowledge based
on past experience such as the admission of a prior assault
conviction in a criminal trespass prosecution to establish the
defendant’s knowledge that he was not welcome on the invaded
premises).
Applying the correct test under the current Evidence Code, the
trial court may have been able to admit at least some of the
challenged evidence for the purpose of showing Appellant’s intent.
After all, Appellant was charged with malice murder and felony murder based on aggravated assault in connection with both
shootings, and he was charged with the armed robbery of LaBord
and with felony murder based on the attempted armed robbery of
Williams. See Hood, 299 Ga. at 101 (stating that other acts evidence
is relevant for the non-character purpose of showing intent where
“‘the same state of mind was required for committing the prior act[s]
and the charged crimes’” (citation omitted)). See also Brewner v.
State, 302 Ga. 6, 12-14 (804 SE2d 94) (2017) (holding that there was
no plain error in admitting evidence of the defendant’s involvement
in a previous home invasion and robbery where the defendant
claimed that he merely introduced the participants in the home
invasion and armed robbery for which he was on trial with no intent
to further orchestrate or actively assist in the enterprise).
However, given the sheer volume of the LaBord-related
evidence that was admitted, the trial court properly could have
exercised its discretion under the current Evidence Code to conclude
that the probative value of that evidence on the issue of intent was
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations
of undue waste of time or needless presentation of cumulative
evidence. See OCGA § 24-4-403; Hood, 299 Ga. at 101 (stressing that
“it is important to distinguish between the relevance and the
probative value of the other acts evidence in question” in applying
the first and second parts of the OCGA § 24-4-404 (b) test (emphasis
in original)). See also Jackson v. State, 306 Ga. 69, 78-79 & n.10 (829
SE2d 142) (2019) (explaining that where neither side argues that
the charged conduct was unintentional, other acts evidence has
minimal probative value on the issue of intent, and stating that “an
issue of identity, not intent,” is presented where the defendant
disputes that he was the shooter (emphasis in original)).
Finally, we cannot say that any error in the admission of the
challenged evidence was harmless. The harmless error test for
nonconstitutional error is whether it is highly probable that the
error did not contribute to the verdict. See Jackson, 306 Ga. at 80.
In determining whether a legal error by the trial court was
harmless, “we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so.” Id. (citation and
punctuation omitted). As explained above in Division 1, when
viewed in the light most favorable to the verdicts, the evidence of
Appellant’s guilt was sufficient to satisfy due process. But aside from
the other acts evidence of Appellant’s intent, Appellant’s convictions
rest on the testimony of a nine-year-old child, Appellant’s initial
willingness to lie to police about his whereabouts and knowledge of
the shooting, the statement by Pontoon’s brother to Investigator
Langford that Appellant had the gun and attempted to rob Williams,
and the testimony of Pontoon, a minor who was himself indicted for
the murder and thus had a motive to lie and who at the very least
was willing to steal a gun from his brother and sell it to a man to
commit a robbery.7 By contrast, the evidence presented to the jury
of Appellant’s guilt for the killing of LaBord was both extensive and
strong.
7 The State conceded at oral argument that the trial court should have
given an accomplice corroboration jury instruction. In short, the evidence supporting Appellant’s convictions was
not so strong that we can say that it is highly probable that the jury
was not improperly influenced by the strength and sheer volume of
the other acts evidence concerning another homicide. See Old Chief
v. United States, 519 U.S. 172, 180-181 (117 SCt 644, 136 LE2d 574)
(1997) (“‘Unfair prejudice’ within its context means an undue
tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one. Such improper grounds
certainly include . . . generalizing a defendant’s earlier bad act into
bad character and taking that as raising the odds that he did the
later bad act now charged (or, worse, as calling for preventive
conviction even if he should happen to be innocent momentarily).”
(citation and punctuation omitted)). Accordingly, we cannot say that
any error in the admission of the other acts evidence was harmless.
The proper course under this Court’s precedents for similar
errors is to vacate the trial court’s judgment and to remand the case
to the trial court with direction to exercise its discretion to determine
under the correct OCGA § 24-4-404 (b) test if the other acts evidence was properly admitted. See Moore v. State, 290 Ga. 805, 809-810
(725 SE2d 290) (2012) (collecting cases). See also Parker v. State,
296 Ga. 586, 596 (769 SE2d 329) (2015) (holding that the Court of
Appeals should have vacated the defendant’s convictions and the
trial court’s order that was based on an erroneous evidentiary
ruling, reversed the trial court’s exclusion of the defendant’s
proffered documents, and remanded the case to the trial court with
direction to issue a new order after considering the improperly
excluded documents). If the trial court decides under the correct test
that the other acts evidence was properly admitted, then the court
should reenter the judgment against Appellant, who could then take
another appeal challenging that ruling. See Parker, 296 Ga. at 597;
Moore, 290 Ga. at 810. If, on the other hand, the court decides that
the other acts evidence should have been excluded, then a new trial
will be necessary. See Parker, 296 Ga. at 597; Moore, 290 Ga. at 809.
3. We do not address Appellant’s other enumerations of
error because they relate to issues that are unlikely to recur in the
event of a retrial. Appellant may raise them again in a renewed appeal if the trial court does not grant him a new trial and reenters
the judgment.
Judgment vacated and case remanded with direction. All the Justices concur.
DECIDED JUNE 1, 2020. Murder. Richmond Superior Court. Before Judge Craig. Veronica M. O’Grady, Brandon A. Bullard, for appellant. Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.