McMillan v. State

357 Ga.App. 344

850 S.E.2d 779

MCMILLAN

v.The STATE.

A20A1313

Court of Appeals of Georgia.

October 23, 2020

Debra Kay Jefferson, Lawrenceville, for Appellant.

Daniel J. Porter, District Attorney, Samuel Richard d'Entremont, Assistant District Attorney, for Appellee.

Markle, Judge.

Following a jury trial, Arielle Bridget-Renee McMillan was convicted of armed robbery ( OCGA § 16-8-41 (a) ), aggravated assault ( OCGA § 16-5-21 (a) (2015)), and theft by receiving stolen property ( OCGA § 16-8-7 (a) ).¹ She appeals from the trial court's denial of her motion for new trial, arguing that (1) the trial court erred in admitting evidence of other acts under OCGA § 24-4-404 (b) ("Rule 404 (b)"), and (2) the evidence was insufficient to support her convictions. For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that McMillan's convictions arise from two separate armed robberies that occurred between November and December 2015.

In November 2015, McMillan visited S. G. in a motel room in Gwinnett County in order to purchase drugs from him. When she arrived, three women were also in the room. She returned two hours later to purchase more drugs. As the other women opened the door to leave, a man holding a handgun burst into the room, while a second man stayed outside. S. G. then ran into the bathroom, chased by the armed assailant. A struggle ensued, and S. G. was shot in the leg. McMillan then ran out of the motel room, carrying S. G.’s cell phone and a portable safe containing cash and drugs. S. G. identified Arielle Monroe as the woman who robbed him, and he also provided a physical description. Police later determined that Arielle Monroe was actually Arielle McMillan.

Video surveillance from the incident showed McMillan and two men walking outside S. G.’s room around the time of the incident. It then showed all three leaving about eight minutes later, with McMillan carrying a black box.

In December 2015, McMillan was involved in another armed robbery. This time, C. V. and F. O. were getting out of a van at an apartment complex when a black male, along with an accomplice, approached them holding a handgun. The assailant pointed the gun at C. V., demanded his wallet, and took his cell phone, keys, and a necklace from around his neck. The assailant then chased F. O. and demanded his wallet, and, when the two subsequently struggled over the gun, F. O. was shot in the right leg. The two assailants then drove off in a gray SUV. C. V. called the police. When they arrived on the scene, they located a cell phone dropped by one of the assailants. The cell phone was eventually linked to the co-defendant, Christopher Donte Evans, who was also involved with McMillan in the prior armed robbery at the motel.²

A few months later, Doraville police stopped a vehicle McMillan was driving and in which Evans was a passenger. After leading police on a high-speed chase, McMillan and Evans were arrested. When police searched the vehicle, they found various electronics, as well as the cell phone stolen earlier from C. V.

A Gwinnett County police detective interviewed McMillan, and she identified herself on the video from the November robbery and admitted that she carried the black box out of the motel room.

Police also found that McMillan was using what was later determined to be C. V.’s stolen cell phone, which she had activated using a new number just 12 minutes after C. V. had reported the robbery. Additionally, the detective downloaded information recovered from the cell phone Evans dropped at the crime scene, and discovered text messages between Evans and the phone number now associated with McMillan. In one text message, sent after the incident involving S. G., McMillan asked Evans: "Did u shoot him, TF?" Videos from Evans's phone, dated December 18, 2015, also revealed selfie shots of himself, along with McMillan, driving in a silver SUV. The text messages further revealed details of a home invasion and robbery in October 2015, which the State used as Rule 404 (b) evidence at trial, and which also showed both McMillan's and Evans's phones in the vicinity of that robbery.

McMillan was charged with three counts each of armed robbery and aggravated assault, and two counts of aggravated battery in connection with the November and December offenses. Prior to the start of trial, the State indicated its intent to introduce evidence of the October home invasion and robbery under Rule 404 (b) to show motive, intent, and plan. At a hearing, the State proffered text messages exchanged between Evans and McMillan, showing how the two planned the robbery: Evans provided McMillan with the address, directions on how to get to the home, and who would be home. The State also went through the details of the incident, which, as discussed below, were as the victims testified to at trial. The trial court admitted the evidence, finding that it was being admitted to show motive, intent, and plan, that the evidence was sufficiently similar considering temporal proximity, and that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice after considering the balancing test under OCGA § 24-4-403 ("Rule 403"). The trial court also gave a limiting instruction.

At trial, the victims of the October home invasion and armed robbery testified that two women came to their home, knocked on the door, and asked to use the phone because their car had broken down. Once the husband opened the door to let them in, a man with a gun also entered the house, and he ordered the victims to the floor. The man then tied them up and searched the house for a safe. When he was unable to find it, he poured bleach on the victims, and took two cell phones from the home before leaving. The victims were able to give a description of the man, and the husband identified McMillan from a photo lineup.

McMillan did not testify at trial. She was convicted of one count of armed robbery and one count of aggravated assault in connection with the November robbery, and of the lesser included crime of theft by receiving stolen property for the December robbery. She subsequently filed a motion for new trial, which the trial court denied. This appeal followed.

1. McMillan argues that the trial court erred in admitting evidence of the prior October home invasion under Rule 404 (b) because the trial court failed to conduct a hearing on the admissibility of the evidence, and the State failed to indicate an appropriate purpose for this evidence³ and to show by a preponderance of the evidence that McMillan committed the uncharged act. We disagree.

Under OCGA § 24-4-404 (b),

[e]vidence 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.

Also, [t]o be admissible under Rule 404 (b), the State must show that

(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.

(Citations and punctuation omitted.) McWilliams v. State , 304 Ga. 502, 509 (3), 820 S.E.2d 33 (2018). We review the admission of Rule 404 (b) evidence and the proper application of the Rule 403 balancing test for abuse of discretion, and the trial court's decision will not be disturbed unless there is a clear abuse. Jones v. State , 301 Ga. 544, 548 (2), 802 S.E.2d 234 (2017). With these principles in mind, we turn to McMillan's specific arguments.

McMillan first complains of the trial court's failure to hold a hearing, contending it was error to determine admissibility based on the State's evidentiary proffer alone. This argument is unavailing.

During its proffer, the State provided details of the home invasion. McMillan's trial counsel argued that the evidence regarding the victims’ ability to identify McMillan as one of the persons involved in the home invasion was not strong; however, the State submitted that it had other evidence placing McMillan at the scene of the robbery. At no time did McMillan's counsel object to the State presenting its evidence via proffer, nor did she otherwise request an evidentiary hearing, despite the trial court's suggestion to conduct a hearing where the victims could be called to make an in-court identification of McMillan. McMillan's counsel declined to provide the victims another chance to identify her, and suggested that, if they were going forward with a hearing, she would waive her client's presence.

Where counsel makes statements in ... her[ ] place, they may be received without verification unless the same is required by the opposing party at the time. Accordingly, in the absence of a timely objection when the evidentiary proffer was made to the trial court, the prosecutor's "in her place" proffer during the hearing will be treated on appeal as the equivalent of evidence.

(Citations and punctuation omitted.) State v. Battle , 344 Ga. App. 565, 571 (2), 812 S.E.2d 1 (2018) ; see also Rank v. Rank , 287 Ga. 147, 149 (2), 695 S.E.2d 13 (2010). Given that McMillan's counsel did not object to the State's proffer when made, the trial court did not abuse its discretion by not conducting an evidentiary hearing.⁴

Turning to the merits of whether this evidence was admissible under Rule 404 (b), we conclude that McMillan's challenge is without merit.

(a) Although McMillan argues that the State sought to introduce this evidence for an improper purpose, her argument is belied by the record.

In ...