Christopher Hewell v. State ( 2021 )

THIRD DIVISION
DOYLE, P. J.,
DILLARD, P. J., and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 24, 2021
In the Court of Appeals of Georgia
A21A0278. HEWELL v. THE STATE.
REESE, Judge.
A jury found Christopher Hewell guilty of one count of first degree burglary
and two counts of misdemeanor theft by taking.1 Hewell filed an amended motion for
new trial, and following a hearing, the court denied his motion. Hewell appeals the
trial court’s ruling, arguing, inter alia, that the court erred in improperly admitting
evidence of his prior bad acts. For the reasons set forth infra, we agree and therefore
reverse the trial court’s ruling.
1
See OCGA §§ 16-7-1 (b); 16-8-2.
Viewed in the light most favorable to the jury’s verdict,2 the evidence shows
the following material facts. In 2016, James Swaim hired Hewell as a handyman to
perform various jobs at his lake house in Greene County. Some of these tasks
required Hewell to enter Swaim’s home, although Swaim stated that he did not
remember providing Hewell with a key. While Hewell was working on these projects,
Swaim often had to leave the house for conference calls because his cell phone had
poor service, leaving Hewell alone in the home.
Swaim reported that in the latter part of March 2017 he traveled to Kentucky,
shortly after Hewell had completed the final project on the house. Upon returning
from his trip, Swaim’s son informed him that a TV was missing from the lake house’s
sunroom. Swaim surveyed the house and discovered that, in addition to the TV,
multiple items were missing, including a compound bow, a chainsaw, a leaf blower,
and fishing equipment. Swaim informed the Greene County sheriff’s department of
the missing items and stated that, although he thought the house was secure when he
left for Kentucky, he noticed that a deadbolt was not working when he returned.
Swaim also noted that there were no signs of forced entry. According to him, the
2
See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d
560) (1979); Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
2
missing items were in the house at the time Hewell completed his work and before
Swaim traveled to Kentucky.
While working on Swaim’s house, Hewell and his family were living in two
rooms of a three-bedroom house owned by Annette Ray. Hewell rented these rooms
from Ray, who lived in the third bedroom. In February 2017, Dennis Hall also moved
into Ray’s house, and stayed in the living room as all of the bedrooms were occupied.
During this time, Hall kept his personal items in the dining room and various closets
throughout the home. Shortly after moving in, Hall discovered that several items were
missing, including his TV, a crossbow, fishing equipment, and cans of coins. Hall
reported the items as stolen to the police.
In April 2017, Hewell was arrested and interviewed regarding the property
missing from Swaim’s house. Although he initially denied taking the property,
ultimately Hewell admitted to taking items from both Swaim and Hall. Hewell was
then indicted on three counts of burglary in the first degree related to the stolen items.
Count one charged that he entered Swaim’s house with the intent to commit a theft,
and counts two and three charged that he entered Hall’s house.
At trial, Hewell admitted stealing most of the missing items, but argued that he
did not impermissibly enter either residence to take them; thus, he was only guilty of
3
theft by taking. The trial court permitted the State to present evidence of Hewell’s two
2014 convictions. The jury found Hewell guilty of burglary in the first degree for
stealing items from Swaim’s home. However, the jury found him guilty on the lesser
charge of theft by taking regarding the items taken from Hall. Hewell filed an
amended motion for new trial, which the trial court denied, and this appeal followed.
The admission of evidence pursuant to OCGA § 24-4-404 (b) is reviewed for
“clear abuse of discretion.”3 With these guiding principles in mind, we now turn to
Hewell’s claims of error.
3
Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (citation and
punctuation omitted). We note that Hewell concedes that he did not make a
contemporaneous objection to the evidence when it was introduced at trial.
Nevertheless, we review the trial court’s admission of the evidence for an abuse of
discretion (rather than plain error) because Hewell objected to the admissibility of the
other acts evidence at the pre-trial Rule 404 (b) conference. In this context, once the
court makes a definitive ruling on the record admitting the evidence, either at or
before trial, a criminal defendant need not renew an objection to preserve such claim
of error for appeal. See Heard v. State, 309 Ga. 76, 85 n.12 (844 SE2d 791) (2020);
Anthony v. State, 298 Ga. 827, 831-832 (785 SE2d 277) (2016); Terry v. State, 358
Ga. App. 195, 197 n.5 (854 SE2d 366) (2021). This appears to be the law, at least
with respect to Rule 404 (b) evidence, despite the recent ruling requiring a
contemporaneous objection by a party in a civil proceeding with the opposing party
violates a successful motion in limine. See Williams v. Harvey, Case No. S20G1121,
(decided May 17, 2021).
4
1. Hewell argues that the trial court abused its discretion by improperly
admitting evidence of other crimes, specifically his two prior burglary convictions.4
He asserts the trial court should not have admitted these prior acts as they constituted
impermissible character evidence and were unduly prejudicial. For the following
reasons, we agree.
OCGA § 24-4-404 (b) hearing states:
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.
When examining the admissibility of evidence under OCGA § 24-4-404 (b), the
Supreme Court of Georgia has adopted the three-part test applied by the Court of
4
At the Rule 404 (b), the trial court found some similarity between “[Hewell’s]
motive and intent for . . . stealing and pawning” in the prior convictions and the
current burglary charges. The State also noted in its brief that “Appellant’s prior
burglary convictions [were admitted] for the limited purpose of showing motive and
intent[.]” However, at trial the court instructed the jury, “[i]n order to prove its case
. . . , the State must show knowledge and intent and may show motive and
opportunity. To do so, the State . . . will offer evidence of other crimes committed by
the accused.” Although the exact reasoning behind admitting the prior acts evidence
is unclear, we will use the four purposes offered by the trial court in its jury charge
as the bases of our analysis.
5
Appeals of the Eleventh Circuit, which states “(1) the evidence must be relevant to
an issue other than defendant’s character; (2) the probative value must not be
substantially outweighed by its undue prejudice; (3) the government must offer
sufficient proof so that the jury could find that defendant committed the act.”5
(a) Motive. Motive is “the reason that nudges the will and prods the mind to
indulge in the criminal intent.”6 While evidence of another crime “may be admitted
to show a defendant’s motive for committing the crime with which he is charged,” it
cannot be used “to demonstrate a propensity to act in accordance with the character
indicated by that other crime or conduct.”7 Moreover, demonstrating motive though
such evidence requires “something other than the accused’s propensity to commit the
crime charged.”8
The State presented to the jury Hewell’s prior convictions for burglary where
he stole items, specifically TVs among other electronics, from individuals’ houses.
5
Bradshaw, 296 Ga. at 656 (3) (citation and footnote omitted).
6
Amey v. State, 331 Ga. App. 244, 250 (1) (b) (770 SE2d 321) (2015) (citations
and punctuation omitted).
7
Id. (citation and punctuation omitted).
8
Brooks v. State, 298 Ga. 722, 726 (2) (783 SE2d 895) (2016) (citations and
punctuation omitted).
6
Although evidence of prior crimes may be used to prove motive, as in evidence of
drug use being presented to establish a motive for robbery,9 this was not the case here.
The State argues in its brief that Hewell’s prior convictions demonstrated “the motive
for entering, stealing and pawning[ ] was the same in both cases: to fund his pain pill
addiction.” Yet, the testimony offered at trial relating to his prior convictions for
burglary did not mention Hewell’s addiction, and nothing in the convictions
themselves related to his drug use. As this Court has stated, “the fact that the accused
has committed one kind of crime in the past does not, without more, prove his motive
to commit the same kind of crime again. Such logic would make all prior [burglaries]
admissible in any [burglary] case[.]”10 Thus, his prior convictions went more to his
character to commit these types of crimes than to his motive.11
9
Staten v. State, 219 Ga. App. 536, 539 (3) (466 SE2d 20) (1995) (holding that
defendant’s heavy drug use was admissible to establish motive for robberies); Brock
v. State, 179 Ga. App. 519, 520 (1) (347 SE2d 230) (1986) (holding that evidence of
narcotic dependancy was motive for burglary of pharmacy).
10
Amey, 331 Ga. App. at 251-252 (1) (b) (citation and punctuation omitted);
see Thompson v. State, 302 Ga. 533, 540 (III) (A) (807 SE2d 899) (2017) (“[T]o be
admitted to prove motive, extrinsic evidence must be logically relevant and necessary
to prove something other than the accused’s propensity to commit the crime
charged.”) (citation and punctuation omitted).
11
See Amey, 331 Ga. App. at 252 (1) (b) (“Based upon the State’s failure to
present evidence of [appellant’s] impecuniousness at the time of the prior attempted
7
(b) Intent. Regarding the use of extrinsic evidence to show intent, this Court
has noted,
a defendant who enters a not guilty plea makes intent a material issue
which imposes a substantial burden on the government to prove intent,
which it may prove by qualifying OCGA § 24-4-404(b) evidence absent
affirmative steps by the defendant to remove intent as an issue. Where
the extrinsic offense is offered to prove intent, its relevance is
determined by comparing the defendant’s state of mind in perpetrating
both the extrinsic and charged offenses. Thus, where the state of mind
required for the charged and extrinsic offenses is the same, the first
prong of the OCGA § 24-4-404(b) test is satisfied.12
However, “the potential for prejudice caused by the introduction of other acts
evidence is great and the often subtle distinctions between the permissible purpose[
] of intent . . . and the impermissible purpose of proving character may sometimes be
robbery, we conclude that motive was not a proper purpose for admitting such
evidence.”).
12
State v. Brown, 333 Ga. App. 643, 655 (3) (777 SE2d 27) (2015) (citation,
punctuation, and footnote omitted); see Ronald L. Carlson and Michael Scott Carlson,
Carlson on Evidence (6th ed. 2018), at 167 (“[I]n cases where the defendant has
placed intent at issue by pleading not guilty and in which the existence of a criminal
conspiracy is not at issue, the Rule 403 balancing test must be considered on a case-
by-case basis.”).
8
difficult to discern.”13 More specifically, “probative value depends . . . upon the need
for the evidence. When the fact for which the evidence is offered is undisputed or not
reasonably susceptible of dispute, the less the probative value of the evidence.”14
Here, even assuming arguendo Hewell’s prior crimes were relevant to
demonstrate intent, he did not dispute stealing the property. Although he pled not
guilty to burglary, thereby technically placing intent at issue, the fact that Hewell took
the property with the requisite intent was undisputed.15 Thus, as intent was not in
dispute, the probative value of these prior crimes for this purpose is minimal.16
Additionally, as noted above, the general prejudicial risk of introducing other
acts evidence is great.17 Here, the risk of prejudice was increased through the State’s
13
Id. at 657 (3) (citation and punctuation omitted).
14
Olds v. State, 299 Ga. 65, 76 (2) (786 SE2d 633) (2016); see Ronald L.
Carlson and Michael Scott Carlson, Carlson on Evidence (6th ed. 2018), at 164
(noting that whether other acts evidence is unduly prejudicial includes examining,
inter alia, whether the opponent of the other act contests intent and the proponent’s
need to present the other act).
15
See OCGA § 16-7-1 (b).
16
See Jackson v. State, 306 Ga. 69, 79-80 (2) (b) (ii) (829 SE2d 142) (2019)
(holding that the prejudice of admitting a prior shooting to show intent to commit
felony murder was outweighed by its minimal probative value because, inter alia,
intent was not at issue).
17
See State v. Jones, 297 Ga. 156, 163 (3) (773 SE2d 170) (2015).
9
cross-examination of Hewell. Not only did the State introduce evidence of Hewell’s
prior crimes, but after doing so stated to Hewell, “So you’re not arguing with me,
though, then that you — you steal people’s stuff, you enter people’s house[s] to steal
their stuff, receive stolen property, and you lie to the police.”18 Given that the
prejudicial impact of this evidence outweighed its probative value, intent was not a
valid purpose for admitting these prior acts.19
(c) Knowledge. The admission of similar acts may be used to demonstrate that
the accused possessed a special skill, such as safecracking or bomb-making, or to
show 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.20 Here, the crime of
18
See Jackson, 306 Ga. at 79 (2) (b) (ii) (noting the prosecutor enhanced the
prejudice by extensively questioning appellant about prior crimes and implying the
prior crimes demonstrated he had the kind of character to commit the alleged crime).
19
Additionally, although the State cites Silvey v. State, 335 Ga. App. 383 (780
SE2d 708) (2015), this case is distinguishable. In Silvey, the appellant pled not guilty
and also denied any involvement with the burglaries. Id. at 387 (1) (a). Therefore,
prior similar acts would have carried a heavier probative value in Silvey, where the
appellant denied improperly taking the property. In contrast, here Hewell never
disputed stealing the items, and so intent was not a contested issue.
20
See Rouzan v. State, 308 Ga. 894, 899 (2) (843 SE2d 814) (2020).
10
burglary does not require a special skill that would require demonstrating Hewell
possessed this unique knowledge.21 Further, there was no issue regarding any
“specific knowledge” connecting these past crimes to the current charges.
Accordingly, the evidence went toward Hewell’s character rather than to demonstrate
knowledge.
(d) Opportunity. Although opportunity is “probably the most rarely used
purpose of those listed in Rule 404(b)[,]” extrinsic evidence may be used to
demonstrate “the defendant’s specific ability or wherewithal to commit the crime
charged.”22 Here, opportunity was not at issue, and the prior burglaries had no
connection to the charged acts at issue. Therefore, opportunity was not a proper
justification for admitting evidence of his prior convictions.23
21
See Paul S. Milich, Georgia Rules of Evidence § 11:17 (October 2020).
22
Amey, 331 Ga. App. at 252 (1) (c) (citation and punctuation omitted).
23
See id. at 252-253 (1) (c) (holding prior attempted robbery had no connection
with the current robbery charge occurring three years later and therefore did not
support its admission under Rule 404 (b)).
11
(e) Harm. After examining the purposes proposed for the extrinsic evidence,
and failing to find a proper justification for its admission, we must now determine
whether the trial court’s error requires a new trial.24
The test for determining nonconstitutional harmless error is whether it
is highly probable that the error did not contribute to the verdict. In
determining whether trial court error was harmless, we review the record
de novo, and we weigh the evidence as we would expect reasonable
jurors to have done so as opposed to viewing it all in the light most
favorable to the jury’s verdict.25
Here, as noted above, the State cross-examined Hewell on his prior convictions, and
asked if it was not true Hewell stole people’s stuff, entered their houses, received
stolen property, and lied to the police. Further, Swaim testified there were no signs
of forced entry and there were several times he left the house to take conference calls,
thereby leaving Hewell alone inside. Additionally, although Swaim claimed the items
were in his house after Hewell finished working for him, implying that Hewell must
have unlawfully entered the house, Hewell testified he stole the items from Swaim’s
garage and inside the house while Swaim was away on a conference call, thus during
24
See Amey, 331 Ga. App. at 253 (1) (d).
25
Id. (citation and punctuation omitted).
12
the time that Hewell had permission to be in the residence. So while the evidence
against Hewell was legally sufficient to support the jury’s finding, it is not
overwhelming.26 Because we cannot say that it is highly probable the admission of
Hewell’s prior convictions for burglary failed to contribute to the jury’s verdict, we
likewise cannot say the admission of this evidence was harmless.27
For the reasons stated above, we reverse the trial court’s denial of Hewell’s
motion for new trial.
2. In light of our ruling in Division 1, supra, we need not consider Hewell’s
remaining claims of error.
Judgment reversed. Doyle, P. J., and Dillard, P. J., concur.
26
See Amey, 331 Ga. App. at 253 (1) (d).
27
See id.
13