Lofland v. State

357 Ga.App. 92

850 S.E.2d 175

LOFLAND

v.The STATE.

A20A0913

Court of Appeals of Georgia.

October 13, 2020

Clarke & Towne, Jessica Ruth Towne, Lawrenceville, for Appellant.

Penny Alane Penn, District Attorney, Michael Shawn Mahoney, Assistant District Attorney, for Appellee.

Rickman, Judge.

Following a jury trial, Ronald Eric Lofland was convicted on one count of aggravated assault (family violence) with a deadly weapon.¹ He filed a motion for new trial, which the trial court denied. Lofland argues on appeal that the trial court erred by admitting evidence of other acts and by failing to charge the jury on an essential element of aggravated assault (family violence). We find no reversible error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(Citation and punctuation omitted.) Smart v. State , 356 Ga. App. 60, 846 S.E.2d 172 (2020).

So construed, the evidence showed that Lofland and the victim were married and had two children together, and Lofland was a stepfather to the victim's 15-year-old daughter. In January 2016, the victim returned home from work in the early morning hours and as she was attempting to fall sleep, Lofland, who had been drinking, began slapping her and accusing her of being unfaithful to him. According to the victim, he "always accused [her]" of cheating on him. The victim eventually went to sleep, but the arguing began anew after she woke up. The victim threatened to take their children and leave, at which time Lofland retrieved a knife from the kitchen, held it to the victim's abdomen, and told her, "I'm going to fucking cut you in the navel." The victim's teenage daughter then walked into the room and screamed, "[N]o, Daddy!," causing Lofland to immediately stop threatening the victim and begin comforting the child, who had dropped to the floor crying.

Lofland was subsequently arrested, charged, and convicted on one count of aggravated assault (family violence) with a knife, a deadly weapon. See OCGA §§ 16-5-20 (a) (1), (2) ; 16-5-21 (a) (2), (i). He filed a motion for new trial, which the trial court denied. This appeal follows.

1. Lofland asserts that the trial court erred by admitting other acts evidence under OCGA § 24-4-404 (b) (‘‘Rule 404 (b)’’). We disagree.

Prior to trial, the State filed a notice of its intent to admit evidence that, four months after the knife incident for which Lofland was indicted, he shot the victim and her male friend with a handgun.² The trial court conducted a hearing, after which the court determined that the evidence was admissible to the extent that it may show intent, the reasonableness of the victim's fear, and the "state of feelings" between the defendant and the victim.³

The victim thereafter testified that, approximately four months after the knife incident, she hosted several family members at her home for dinner. Lofland did not attend but was within walking distance at the victim's brother's house up the street.⁴ After the rest of her family had left, the victim was on the porch with a male friend, when Lofland approached them and asked, "What's going on here?" He then pulled out a handgun and shot both the victim and her male friend; neither wound was fatal. The male friend jumped over the balcony and fled, while the victim ran inside the house and locked the door. Lofland remained outside tampering with the door, but left after the victim's teenage daughter went to the door and screamed, "[N]o, Daddy ... get away from the door." The male friend offered testimony about the event consistent with that of the victim's, and the trial court gave the jury a limiting instruction prior to their testimony.⁵

We begin by noting that the trial court correctly determined that the admissibility of the other acts evidence, which would have previously been analyzed as evidence of "prior difficulties," is now governed by Rule 404 (b). See Flowers v. State , 307 Ga. 618, 620-621 (2), n.3, 837 S.E.2d 824 (2020) (overruling several cases from this Court which relied upon pre-Rule 404 (b) cases when analyzing the admission of prior difficulty evidence).

Rule 404 (b) provides, in pertinent part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

The rule "explicitly recognizes the relevance of other acts evidence offered for a permissible purpose and, at the same time, prohibits the admission of such evidence when it is offered solely for the impermissible purpose of showing a defendant's bad character or propensity to commit a crime." (Citation and punctuation omitted; emphasis in original.) Flowers , 307 Ga. at 621 (2), 837 S.E.2d 824.

When assessing the admissibility of other acts evidence, the trial court must apply a three-part test to examine whether

(1) the other acts evidence is relevant to an issue other than the defendant's character, (2) the probative value is not substantially outweighed by undue prejudice under OCGA § 24-4-403 ("Rule 403"), and (3) there is sufficient proof that a jury could find by a preponderance of the evidence that the defendant committed the acts.

(Citation, punctuation and footnote omitted.) Id. ; see Bradshaw v. State , 296 Ga. 650, 656 (3), 769 S.E.2d 892 (2015). Because Rule 404 (b) is modeled on Federal Rule of Evidence 404 (b), we look to the decisions of the federal appellate courts for guidance in construing and applying the Georgia rule. See Flowers , 307 Ga. at 622 (2), n.5, 837 S.E.2d 824 ; see also Strong v. State , 309 Ga. 295, 314 (3) n.21, 845 S.E.2d 653 (2020).

We will affirm the trial court's decision to admit other acts evidence absent a clear abuse of discretion. See Flowers , 307 Ga. at 621 (2), 837 S.E.2d 824. And we note that for the purpose of the admissibility analysis, the governing principles are the same whether the conduct occurs before or after the offense charged. See United States v. Delgado , 56 F.3d 1357, 1365 (III) (B) (11th Cir. 1995) (a) With respect to the evidence that he shot his wife, Lofland does not challenge its relevance or the sufficiency of the proof that he committed the act. Rather, he argues that because aggravated assault is a general intent crime,⁶ the probative value of the evidence was minimal and was substantially outweighed by its unduly prejudicial impact, such that it should have been excluded under the second part of the Rule 404 (b) analysis.

The second part of the Rule 404 (b) analysis is governed by Rule 403, which provides that even 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." The rule is one of inclusion, and the exclusion of evidence under its balancing test "is an extraordinary remedy which should be used only sparingly." (Citation and punctuation omitted.) Olds v. State , 299 Ga. 65, 70 (2), 786 S.E.2d 633 (2016) ; see also Hood v. State , 299 Ga. 95, 103 (4), 786 S.E.2d 648 (2016) ("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.") (citation and punctuation omitted). The Rule 403 analysis requires the trial court to exercise its discretion and make "a common sense assessment of all the circumstances surrounding the extrinsic act and the charged offense." (Citation and punctuation omitted.) Castillo-Velasquez v. State , 305 Ga. 644, 648 (2), 827 S.E.2d 257 (2019) ; see Kirby v. State , 304 Ga. 472, 481 (4) (a), 819 S.E.2d 468 (2018).

With respect to evidence offered to prove intent, the relevant circumstances to be considered by the trial court when assessing its probative value include (1) the prosecutorial need for the extrinsic evidence; (2) the overall similarity between the extrinsic act and the charged offense; and (3) the temporal remoteness of the other act. See Castillo-Velasquez , 305 Ga. at 648 (2), 827 S.E.2d 257.

Lofland was charged with assaulting the victim, his wife, with a knife, a deadly weapon. See OCGA § 16-5-21 (a) (2), (i). Thus, the State had the burden of proving, beyond a reasonable doubt, that Lofland used a knife against the victim with the intent either to violently injure her, or to commit an act that placed her in reasonable apprehension of immediately receiving a violent injury.⁷ See OCGA § 16-5-20 (a) (1), (2).

As Lofland correctly asserts, the crime as charged was a general intent crime, which undoubtedly lessened the State's need for the other acts evidence. See Jones v. State , 301 Ga. 544, 548 (2), 802 S.E.2d 234 (2017) (explaining that the probative value of other acts evidence generally lessens when the crime charged is one of general intent). Nevertheless, Lofland placed his intent at issue by pleading not guilty, see State v. Jones , 297 Ga. 156, 161 (2), n.4, 773 S.E.2d 170 (2015), and at trial, he denied threatening the victim and attempted to discredit her by asserting that she was the aggressor in the relationship. We agree with the trial court that the shooting evidence derived some probative value in showing that Lofland exhibited "aggressive behavior involved in a domestic relationship" and "an intent to control ... [and] influence" the victim. See...