Wilson v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

Decided: June 24, 2025

S25A0430. WILSON v. THE STATE.

WARREN, Presiding Justice.

Appellant Andrew Wilson was convicted of malice murder and

other crimes in connection with the asphyxiation by smothering of

Gregory Harris. In this appeal, Wilson argues that the trial court

abused its discretion by admitting under OCGA § 24-4-404 (b)

evidence of a prior armed robbery involving Wilson. As explained

more below, we conclude that the trial court did abuse its discretion

by admitting the evidence of Wilson’s prior armed robbery and that

the error was not harmless. We therefore reverse Wilson’s

convictions.

We also conclude, however, that the evidence was

constitutionally sufficient to support the jury’s guilty verdicts on all

counts except for the count of theft by receiving stolen property. As a result, Wilson may be retried on all counts except this theft-by-

receiving count. And because there is at least one legal issue that is

likely to recur if Wilson is re-tried, 1 we address Wilson’s claim that

the trial court erred by denying his motion to suppress evidence

derived from his cell phone records and conclude that the trial court

did not err in denying the motion. 2

1. Background

1 Wilson also raises several other claims on appeal. Because we reverse Wilson’s convictions, we do not address these other enumerations, which are either moot or unlikely to recur upon re-trial. See Sheard v. State, 300 Ga. 117, 121 n.5 (793 SE2d 386) (2016).

2 Harris’s body was found on July 14, 2012. On December 21, 2012, a Fulton County grand jury indicted Wilson and Edgar Hubbard for malice murder (Count 1), felony murder based on kidnapping (Count 2), kidnapping with bodily injury (Count 3), first-degree arson (Count 4), and theft by receiving stolen property (Count 5). Hubbard was tried first and found guilty of only one count: arson. Wilson was tried separately from December 10 to 18, 2015, and the jury found him guilty of all counts. The trial court sentenced Wilson to serve life in prison without the possibility of parole for Count 1, 20 years for Count 4, and 20 years for Count 5, running concurrently with each other. Count 2 was vacated by operation of law, and the trial court merged Count 3. Wilson filed a motion for new trial, which he amended three times with new counsel. After an evidentiary hearing, the trial court entered an order denying the motion on July 11, 2023. Wilson filed a timely notice of appeal, and the case was docketed to the term of this Court beginning in December 2024 and was orally argued March 18, 2025. 2  On the evening of July 13, 2012, Harris’s family members

found his house in disarray, appearing as though it had been robbed,

and they could not find Harris. Early the next morning, Harris’s

burned vehicle was found in the backyard of a vacant home, and his

body was found bound and burned in his trunk. Wilson and

Hubbard were ultimately arrested for Harris’s murder and other

related crimes. The State’s theory of the case was that Wilson met

Harris at Onyx gentleman’s club in Atlanta and targeted Harris as

a robbery victim because of Harris’s apparent wealth, which Harris

generated by selling drugs, including marijuana, cocaine, and

heroin. Because of Harris’s visible affluence, Wilson worked with

Edgard Hubbard to steal (among other items) two expensive

watches from Harris. According to the State, Wilson and Hubbard—

as part of their robbery plan—stole Harris’s watches, kidnapped him

from his home, bound and suffocated him, put him in the trunk of

his car, drove the car to a vacant home, and set the car on fire with

Harris’s body in the trunk. In addition to presenting evidence of

Wilson’s involvement in Harris’s murder, the State advanced its

3 theory of Wilson’s robbery scheme by introducing evidence that in

2011, Wilson committed a separate armed robbery against John

Taylor—a man the State said Wilson met at Onyx—and stole,

among other items, an expensive watch.

(a) The evidence presented at trial showed the following. 3

Harris and Wilson knew each other. Harris’s fiancée testified that

she had seen Harris and Wilson interact at least twice, first at a

restaurant when Wilson approached the couple and engaged Harris

in “friendly” conversation and later when she saw Wilson and Harris

“standing together, just in the same area[,]” at Onyx. Harris’s

fiancée also testified that Wilson and Harris “would talk on the

phone,” and Harris would occasionally mention to her that he was

“going to meet [Wilson] somewhere,” but she did not know where

they would go. Harris and Wilson (as well as Hubbard) were

originally from Detroit, Michigan, but each relocated to Georgia at

3 Because our analysis involves questions of whether a trial court error

was harmless, we lay out the evidence in detail and do not do so in the light most favorable to the jury’s verdicts. See Ensslin v. State, 308 Ga. 462, 462 n.2 (841 SE2d 676) (2020). 4 different times, where they eventually settled permanently.

Phone records showed that,4 on July 12, 2012, Harris’s phone

subscribed to Metro PCS5 and Wilson’s phone subscribed to AT&T

exchanged several calls throughout the night. Wilson had an

additional phone that was subscribed to Metro PCS that exchanged

several calls with Hubbard’s phone that night. 6 At the time the calls

were made, surveillance video showed that Harris was at his home

in Newton County, and cell-phone location data showed that

Wilson’s and Hubbard’s phones were near Harris’s home. 7 This was

one of only two times within the month surrounding Harris’s murder

4 As explained in Division 4, we conclude that the trial court did not err

when it denied Wilson’s motion to suppress his cell phone records and the data derived from those records.

5 Harris also had another phone that was subscribed to Sprint.

6Phone records showed that Wilson’s AT&T number was registered under his name, but Hubbard testified that he frequently talked to Wilson on his Metro PCS number, which was subscribed to a fictitious name. Wilson’s two phone numbers were saved in Hubbard’s phone as “Andy” and “Andy Two,” and Hubbard testified that both of these contacts referred to Wilson.

7 A records custodian testified at trial that the cell phone location data

could not pinpoint the exact location of a phone but rather indicated that a phone was in the vicinity of a tower. He testified that in a densely populated area, a phone would likely be within half a mile to two miles from a tower. 5 that Wilson’s phones were in that area, with the second time being

the next day.

On the morning of July 13—the day before Harris’s body was

found—Wilson’s AT&T phone called Harris’s Metro PCS phone

twice, at 8:56 a.m. and 9:46 a.m. At the time the second of these

calls was made, Harris was in the car with his girlfriend. His

girlfriend testified at trial that Harris answered a call and told

someone that “he was coming,” but she did not know to whom he was

talking. Harris left his girlfriend at 11:09 a.m., and the location of

his cell phones indicated that he began driving toward Cobb County

around noon. Between 12:05 and 12:06 p.m., Wilson’s AT&T phone

exchanged four calls with Harris’s Metro PCS phone. From 12:12 to

1:00 p.m., Harris’s phone locations were stationary in Cobb County.

Wilson’s and Hubbard’s phones were in the same location during the

same period. At 12:38 p.m., Harris’s Sprint phone was turned off.

The last call made from or answered by either of Harris’s phones

was made by Harris’s Metro PCS phone to Wilson’s AT&T phone at

1:06 p.m. Around that time, Harris’s and Wilson’s Metro PCS

6 phones began traveling toward Harris’s home in Newton County. 8

Surveillance video showed that Harris’s black sedan returned

to Harris’s house at 1:46 p.m., but because the car windows were

tinted, the driver of the vehicle was not apparent from the video.

Around 2:00 p.m., Harris’s Metro PCS phone was turned off. Cell-

phone location data showed that Wilson’s Metro PCS phone was

near Harris’s house from 2:00 p.m. to 2:23 p.m. and that around

that time it exchanged several phone calls with Hubbard’s phone.

At 2:27 p.m., surveillance video showed Harris’s sedan leaving his

house. At the same time, Wilson’s Metro PCS phone began traveling

from Newton County toward Atlanta. Throughout the rest of the

day on July 13, Wilson’s Metro PCS phone and Hubbard’s phone

exchanged several calls.

Around 7:00 p.m., Harris’s sister and fiancée, who were

concerned because Harris had not answered his phones, went to

Harris’s house. They used a spare key to get into the home, and as

8 Wilson’s AT&T phone remained in Cobb County and called Harris’s

Metro PCS phone from this location with no answer at 2:34 p.m., 2:35 p.m., and 5:05 p.m. 7 soon as they walked in, they smelled a “strong odor of bleach.”

Inside the kitchen, they saw Harris’s two cell phones submerged in

a bucket of bleach. Harris’s bedroom was in “complete [] disarray.”

Empty watch boxes were on the floor, and Harris’s expensive

cologne, designer clothing, iPad, firearm, and two luxury watches –

a Rolex and an Audemars Piguet – were missing. Harris’s sister and

fiancée called 911 and filed a missing person’s report around 8:00

p.m.

Around 11:30 p.m. in Fulton County, two men saw a white

Corvette stop in front of them. They saw a man step out of the

driver’s seat, inspect the car, get back inside the car, and drive off.

There did not appear to be anyone else in the vehicle. At trial, one

of the witnesses, who was 5’11”, said that the man he saw get out of

the white Corvette may have been “about [his] height, maybe a little

bit higher.”

Around 15 to 30 minutes later, the two men saw smoke coming

from the direction that they saw the white Corvette drive toward.

As they approached the area, they saw a car on fire in the backyard

8 of an abandoned house. The car was later identified as Harris’s

black sedan. They did not see anyone around the house. They called

911. The Atlanta Fire Department arrived, and after containing the

fire, firefighters searched the car and found a body that was severely

burned in the trunk. The body was later determined to be Harris.

Harris’s hands and legs were bound behind his back; there was

wiring around his wrist and ankles; and there was plastic around

his nose and mouth and a piece of fabric around his head, holding

the plastic in place.

Later testing determined that the vehicle fire was started with

gasoline, and an Atlanta Fire Department Investigator testified that

the fire was a result of arson. At trial, the medical examiner testified

that Harris’s manner of death was homicide caused by asphyxia due

to smothering. Because there was no soot in Harris’s airways, the

medical examiner concluded that he died before being burned.

Investigation into Harris’s murder revealed that in the early

morning of July 14—around the time the car fire was discovered—

Wilson’s and Hubbard’s phones were near the location of the car fire

9 and exchanged seven calls. In total, Wilson’s and Hubbard’s phones

exchanged over 50 calls from around 9:00 a.m. on July 13 to around

3:00 a.m. on July 14. On July 16, two days after Harris’s burned

car was discovered, Wilson’s phones were in Detroit and remained

there until July 20. On July 20, Wilson changed the number for his

AT&T phone. Hubbard was also in Detroit around this time; the

general manager of a pawn store in Detroit testified that on July 17,

Hubbard made a payment on a loan he owed at the store and also

pawned a watch.9 Evidence also showed that Hubbard and Wilson

had previously been customers of this store, though Wilson’s last

transaction at the store was in 2008, and Hubbard’s last transaction

before the July 17 pawn was in 2005.

The State also presented evidence that in December 2011 and

July 2012, Harris bought from this store the Rolex and the

Audemars Piguet watches that were later stolen from him. At trial,

the store manager testified that Harris’s stolen watches were

9 The State did not present any evidence at trial that this watch matched

either of the watches stolen from Harris. 10 appraised as being worth $32,500 and $110,000, respectively. The

store manager was also shown a photo from Hubbard’s phone that

was taken on July 17, 2012, and the manager testified that the

watch Hubbard wore in the photo matched the description of

Harris’s stolen Rolex. No evidence was presented about where this

photo was taken.

After further investigation, Wilson and Hubbard were arrested

in Georgia in September 2012. Wilson admitted to investigators

that he knew Harris and that they “used to hang out.” Wilson said

that he had previously been in both of Harris’s cars 10 and that he

saw Harris “like two days before” July 13. Wilson also said that both

he and Harris owned Audemars Piguet watches, but that Wilson had

sold his recently. When asked if Wilson had ever been to Harris’s

home, Wilson said, “I don’t want to answer that question.”

Ultimately, Wilson denied having any involvement in Harris’s

killing, claiming that he and Harris “had no beef.” Pursuant to a

search warrant, investigators obtained Wilson’s AT&T phone, which

10 In addition to his sedan, Harris owned a sports car.

11 had been “wiped clean,” meaning that no information was able to be

recovered from the device. Investigators also discovered that

Hubbard and his wife shared a white Corvette that matched the

description of the car seen before Harris’s black sedan was

discovered on fire.

At trial, Wilson argued that he was not involved with any of

the crimes against Harris. He elicited testimony from the lead

investigator that he “could not say” 11 Wilson committed these crimes

and that there was no physical or forensic evidence that indicated

that Wilson was in Harris’s house on July 12, 13, or 14 or that

Wilson had been near Harris’s car when it was set on fire. Wilson

also presented evidence of potential alternate suspects, including

that investigators received information that three people were

coming from Detroit to meet Harris to complete a drug deal and that

someone from California was supposed to be transporting drugs to

Tennessee for Harris. Additionally, the witnesses who saw the

11 Wilson’s counsel asked the investigator if he could say Wilson committed the charged crimes, and the investigator responded, “No. sir.” 12 white Corvette near where Harris’s car and body were found in

Fulton County testified that they did not think the man they saw

get out of the car was Wilson.

(b) Prior to trial, the State gave Wilson notice that it would

seek to introduce evidence under OCGA § 24-4-404 (b) (“Rule 404

(b)”) of the 2011 armed robbery in the condominium of John Taylor,

a wealthy Atlanta businessman, that involved Wilson. During a

pretrial hearing, the State asserted that the 2011 armed robbery

showed Wilson’s motive, identity, absence of mistake or accident,

and common plan or scheme with respect to the charged crimes.

Wilson objected, arguing that the 2011 armed robbery was not

relevant for any of those purposes. The trial court admitted the

evidence to show motive and common plan or scheme, but not to

show identity and absence of mistake or accident. And in admitting

the evidence, the trial court stated that it “f[ound] in particular that

[the evidence was] relevant to show . . . that the accused finds out

what people have, sets them up to be robbed, steals jewelry and

small items, clothes and . . . multiple people are involved.”

13  At trial, Taylor and Andre Paulino, Taylor’s condo cleaner,

testified. Their testimony included the following: in early 2011,

Wilson contacted Taylor’s sister and offered to sell her designer

handbags at a discount. Because she wanted to buy a handbag from

Wilson, she and Taylor met Wilson in the parking lot of Onyx to

complete the transaction. When they arrived, Wilson was there with

three or four other men. Taylor, who drove a luxury sedan, handed

Wilson $10,000 in cash for four handbags. At the time he handed

Wilson the money, Taylor was wearing a $30,000 Rolex watch that

he was “pretty sure” Wilson saw.

Around three months later, Taylor saw Wilson at a restaurant,

accompanied by the woman who had sold Taylor his condo. A few

months after that, on May 31, 2011, Paulino and his assistant were

approached by a man when they arrived at Taylor’s condo for work.

Paulino later identified that man as Wilson. Wilson claimed to live

in the complex and wanted to know how much Paulino charged for

his cleaning services. After giving Wilson his business card, Paulino

and his assistant went to Taylor’s condo to begin cleaning. While

14 Paulino was cleaning the shower, a man started “knocking on the

shower[,] and he had a gun in his hand[][,] and he told [Paulino] to

come out.” The gunman led Paulino into the living room, where

Paulino saw Wilson, another man, and his cleaning assistant. The

gunman “placed the gun” on Paulino’s head and directed him to sit

on the couch; another of the men grabbed the assistant by the back

of her neck.

Paulino saw Wilson and the other two men take a camera from

Taylor’s condo, but Paulino did not know what else they took. Taylor

claimed that the items stolen from his condo included a $2,500

TechnoMarine watch, designer shoes, a designer handbag, and a

camera.

Wilson instructed Paulino and his assistant to “remain in the

house so they wouldn’t do something to [them].” Paulino and his

assistant stayed in the condo, but Paulino called Taylor to report

what happened, and then Taylor called 911. When police arrived

and were interviewing Paulino, he received a phone call, but he was

unable to answer the call.

15  Later that day, Paulino checked his phone’s call log and saw

that the number that called him was listed under the name “Andrew

Wilson.” Paulino called the number back, and a man Paulino later

identified as Wilson answered.12 Paulino said, “[Y]ou’re the person

who just robbed the house that I was just in.” Wilson hung up the

phone; then he called Paulino back from a different phone number

and said, “I did not rob your house. I robbed someone else’s house.

I did nothing to you. I don’t want any problems.” Wilson also got

someone to translate in Spanish that “if [Paulino] went to the police

[] [he] would have problems, but [Wilson] didn’t want any

problems[,] and [Wilson] would kill [Paulino] if [he] spoke to the

police and if [Paulino] gave any information.” After the

conversation, Wilson continued to call Paulino for about a week after

the robbery.13

Around that time, Taylor’s sister received a text message from

12 Paulino did not explain how he knew the man he spoke with on the

phone was Wilson.

13 The record does not indicate whether Paulino answered those calls

from Wilson or, if he did, what Wilson said to Paulino. 16 Wilson’s phone saying that he got a new phone number and to not

“call the other number no more.” Cell phone records confirmed that

Wilson disconnected his phone on May 31, 2011, the same day as the

armed robbery.

Paulino said that he called investigators to follow up about the

incident and to let investigators know that Wilson was one of the

men responsible for the robbery, but no one answered the phone; he

left a message; and investigators never returned his call. However,

according to Taylor, about a year after the armed robbery, Paulino

saw Wilson on the news in relation to Harris’s murder investigation

and reported the 2011 armed robbery to the police again.

Paulino went to the police station, was shown a photo-array of

several individuals, and identified Wilson as one of the men

responsible for the armed robbery in Taylor’s condo a year earlier.

With respect to the 2011 crimes, Wilson was eventually arrested and

charged with (among other counts) armed robbery, burglary, and

17 aggravated assault, which the jury heard at trial.14

Before Taylor and Paulino testified, the court gave the jury a

limiting instruction, directing the jury to consider the evidence

about the 2011 armed robbery only for the purposes of motive and

common plan or scheme. The trial court gave the same limiting

instruction during the final jury charge.

(c) Throughout Wilson’s trial, the State focused on robbery

as a common thread that ran between the 2011 armed robbery in

Taylor’s condo and the later murder of Harris. During its opening

statement, the State remarked that “[t]his [was] a case about good

old fashioned American greed.” In its closing argument, the State

emphasized that “this was a case about greed, pure and simple” and

posited that Wilson’s “motive is to rob people and to get their things.

14 The entirety of Wilson’s charges for the 2011 incident included threatening a witness in an official proceeding, armed robbery, burglary in the first degree, two counts of false imprisonment, two counts of aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The charges were still pending at the time of Wilson’s murder trial. Wilson was tried on the charges in August 2016 and was found guilty only of threatening a witness in an official proceeding—facts the jury in Wilson’s murder trial never heard because those verdicts were not rendered until around eight months after the conclusion of his murder trial. 18 His motive is to take their things and then to conceal any type of

proof or evidence that might link him to it. That’s what he did[,] or

he tried to do[,] with Mr. Taylor and Paulino. And that’s what he

did in this case.” The State added, “That’s what he does. He robs

people,” “Andrew Wilson is a professional robber. That’s what he

does,” and that is “exactly who he is.” Likewise, when referring to

Wilson and Hubbard, the State said, “They rob people. They rob

people of things that they don’t have and that they want, and that’s

exactly what Mr. Paulino and Mr. Taylor showed. That is their plan,

that is their motive, and that is their scheme. That’s what they do.”

2. The Trial Court Abused its Discretion By Admitting Evidence of the 2011 Armed Robbery Under Rule 404 (b) and the Error Was Not Harmless.

Wilson contends that the trial court abused its discretion by

admitting evidence of the 2011 armed robbery under Rule 404 (b)

and that this error was not harmless. As explained more below, we

conclude that the trial court did abuse its discretion in admitting

evidence of Wilson’s 2011 armed robbery to show Wilson’s motive

and common plan or scheme and that the error was not harmless.

19  (a) Under Rule 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.” OCGA § 24-4-404

(b).15 That evidence “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.” Id. The party seeking to have Rule 404 (b) evidence

admitted must show three things:

(1) that the evidence is relevant to an issue in the case other than the defendant’s character; (2) that the probative value of the evidence is not substantially outweighed by its undue prejudice; and (3) that there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act.

Heard v. State, 309 Ga. 76, 84 (844 SE2d 791) (2020) (citation

omitted). For the first prong, evidence is deemed relevant when it

“ha[s] any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less

15 When analyzing OCGA § 24-4-404 (b) we may look for guidance in the

decisions of federal appellate courts construing and applying the materially identical Federal Rule of Evidence 404 (b). See State v. Almanza, 304 Ga. 553, 556-557 (820 SE2d 1) (2018). 20 probable than it would be without the evidence.” OCGA § 24-4-401.

“This is a binary question – evidence is either relevant or it is not.”

Heard, 309 Ga. at 85 (citation omitted). Because we conclude that

the evidence of the 2011 armed robbery was not relevant to the

purposes for which the State propounded the evidence, we do not

address the other two prongs.16 See OCGA § 24-4-402 (“Evidence

which is not relevant shall not be admissible.”). “A trial court’s

decision to admit other acts evidence will be overturned only where

there is a clear abuse of discretion.” State v. Jones, 297 Ga. 156, 159

(773 SE2d 170) (2015) (citation omitted).

(i) Motive

“Motive has been defined as the reason that nudges the will

and prods the mind to indulge the criminal intent.” Bradshaw v.

16 To admit evidence of a defendant’s uncharged crime or “other act,” the

State must show “that there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act.” Heard v. State, 309 Ga. 76, 84 (844 SE2d 791) (2020) (citation omitted). For the purposes of the Rule 404 (b) analysis, we do not consider Wilson’s later acquittal for the 2011 armed robbery, see note 14 above; because the State offered sufficient proof for a jury to conclude by a preponderance of the evidence that Wilson committed the 2011 armed robbery and related crimes, we assume for purposes of this analysis that he did so. See State v. Atkins, 304 Ga. 413, 418-419 (819 SE2d 28) (2018). 21 State, 296 Ga. 650, 657 (769 SE2d 892) (2015) (citation and

punctuation omitted). “Evidence of the defendant’s motive is of

course relevant, even though it may incidentally place the

defendant’s character in evidence.” Thompson v. State, 302 Ga. 533,

540 (807 SE2d 899) (2017). “Overall similarity between the charged

crime and the extrinsic offense is not required when the offense is

introduced to show motive.” Brooks v. State, 298 Ga. 722, 726 (783

SE2d 895) (2016) (citation and punctuation omitted). “Even so, to

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.” Id. (citation and

punctuation omitted).

Here, the State argued that Wilson’s 2011 armed robbery in

Taylor’s condo was relevant to show Wilson’s “motive [ ] to rob people

and to get their things. His motive is to take their things and then

to conceal any type of proof or evidence that might link him to it.”

This argument, however, identifies Wilson’s “motive to act in far too

generic a fashion” to show that the 2011 armed robbery was

22 “logically relevant” to prove Wilson’s motive for the crimes related

to Harris’s murder. See Kirby v. State, 304 Ga. 472, 487 (819 SE2d

468) (2018). Indeed, statements supporting the State’s

characterization of this case as one “about good old fashioned

American greed” such as “[t]hat’s what [Wilson] does. He robs

people,” “Andrew Wilson is a professional robber. That’s what he

does,” and that is “exactly who he is.” amount to an argument that

Wilson is the kind of person who likes to steal from others. That

argument—which shows only that Wilson has a general propensity

to commit a crime—is the type of propensity argument that Rule 404

(b) is designed to preclude. See Kirby, 304 Ga. at 487 (concluding

that characterizing the defendant’s motive as merely using “violence

to obtain money and sex” was “a classic improper propensity

argument”). See also White v. State, 319 Ga. 367, 398-399 (903 SE2d

891) (2024) (Peterson, PJ, concurring) (“[W]hen a jury is informed

that the criminal defendant in front of them did other bad things,

jurors (like all human beings) are naturally more inclined to think

the defendant did the separate bad thing at issue in the prosecution.

23 We often call this inference ‘propensity,’ and label the State’s effort

to introduce evidence for propensity ‘improper’ and

‘impermissible.’”) (citation omitted). Cf. Armstrong v. State, 310 Ga.

598, 602 (852 SE2d 824) (2020) (evidence that the defendant and co-

defendants were gang members, along with expert testimony that

defiance is seen as disrespect in gang culture, showed motive for the

shooting); Mattei v. State, 307 Ga. 300, 303-304 (835 SE2d 623)

(2019) (evidence of the defendant planning a scheme to run someone

over in his employer’s truck to collect an insurance payout was

relevant to show the defendant’s motive for killing the victim for the

purpose of obtaining insurance money because it showed “[the

defendant’s] willingness to harm another person for the specific

purpose of collecting insurance money”); Worthen v. State, 306 Ga.

600, 605 (832 SE2d 335) (2019) (“[T]he other acts evidence showing

gang membership helped to establish a motive for Appellant to

encourage [another gang member] to shoot [the victim].”).

Because the State failed to prove that the 2011 armed robbery

was relevant to prove Wilson’s motive, the trial court abused its

24 discretion in admitting that evidence for that purpose.

(ii) Common Plan or Scheme

The phrase “common plan or scheme” is not expressly listed in

Rule 404 (b), but it is a phrase often used to describe the permissible

purpose of “plan” that is contained in the text of Rule 404 (b). On

this point, we have explained that evidence may be admitted to

prove “plan” under Rule 404 (b) if the evidence tends “to prove that

[the] defendant employed a ‘common scheme’ to commit a series of

similar crimes.” Heard, 309 Ga. at 87-88 (quoting United States v.

LeCompte, 99 F3d 274, 277 (8th Cir. 1996)). 17

We have also explained that admitting evidence of “plan” to

17 Heard also recognized a second way “other acts” are used to prove plan,

explaining that in some cases, evidence admitted under Rule 404 (b) may “show[] the planning of or preparation of the charged offense.” 309 Ga. at 87- 88. Here, we acknowledge that just over one year had elapsed between the 2011 armed robbery and Harris’s murder. Although closeness in time between offenses might tend to support the admissibility of an “other act” under Rule 404 (b), the State does not contend that Wilson committed the 2011 armed robbery in the planning of, or preparation for, the crimes against Harris. See, e.g., United States v. Oppon, 863 F2d 141, 147 (1st Cir. 1988) (other-acts evidence that the defendant answered similar citizenship questions on prior job applications was relevant to show plan, and the fact that these acts occurred within a year of the charged offense supported admissibility due to temporal proximity). 25 show a common scheme “blends the purpose of plan with the purpose

of identity – showing that a distinctive plan was used tends to prove

that the same person executed both plans.” Heard, 309 Ga. at 87

(citation omitted) (emphasis in original); Pritchett v. State, 314 Ga.

767, 776 (879 SE2d 436) (2022) (same). See also United States v.

O’Connor, 580 F2d 38, 41 (2d Cir. 1978) (noting that the other-act

evidence, which showed “a unique pattern or plan,” was admitted

“to establish [the defendant’s] identity”). And that matters because

“[e]vidence offered to prove identity must satisfy a particularly

stringent analysis,” Brooks, 298 Ga. at 725 (citation omitted)—and

because of the intersection between “plan” and identity in a Rule 404

(b) analysis, the stringent identity analysis also applies to an

analysis of common plan or scheme. See, e.g., Pritchett, 314 Ga. at

776; Heard, 309 Ga. at 87-88 (“Because this distinctive-plan purpose

involves the same considerations as the State’s argument that the

other-acts evidence showed identity, it succeeds or fails with that

argument . . . .”).

“When extrinsic evidence is offered to prove identity, the

26 crucial consideration is the similarity between the charged crime

and the prior act. The physical similarity must be such that it marks

the offenses as the handiwork of the accused. In other words, the

evidence must demonstrate a modus operandi.” United States v.

Acevedo, 860 FApp’x 604, 610 (11th Cir. 2021) (citation and

punctuation omitted). “The extrinsic act must be a signature crime,

and the defendant must have used a modus operandi that is

uniquely his. The government must, therefore, show more than

simply that the defendant has at other times committed the same

commonplace variety of criminal act.” Id. (citation and punctuation

omitted).

But the State did not “show more than simply that” Wilson “at

other times committed the same commonplace variety of criminal

act” here. See id. And, as explained below, although the State’s

explanation of the commonalities between the 2011 armed robbery

and the crimes related to Harris’s murder features some

similarities, those similarities are not sufficient to establish the

“modus operandi” or “handiwork of the accused” necessary to

27 establish common plan or scheme under Rule 404 (b). See Pritchett,

314 Ga. at 775.18

With respect to the similarities, the State posits that evidence

of the 2011 armed robbery showed common plan or scheme because

for both sets of crimes, Wilson (1) went to Onyx for the purpose of

meeting rich men; (2) “g[o]t to know [them]”; (3) robbed those men

with accomplices; (4) stole expensive, unique watches as part of

those robberies; and (5) changed his mobile phone number after the

crimes. To assess the similarities between the charged crime in this

case and the prior act (the 2011 armed robbery), see Acevedo, 860

FApp’x at 610, we look to the evidence presented at trial to

determine what the record on appeal shows about whether the

18 The dissenting opinion concluding that the Rule 404 (b) evidence in

this case was admissible acknowledges that in applying Rule 404 (b) in this context, we are guided by decisions of federal appellate courts, see footnote 15 above. But the dissenting opinion fails to apply the “particularly stringent analysis” employed by those federal decisions. See Brooks, 298 Ga. at 725 (quoting United States v. Phaknikone, 605 F3d 1099, 1109 (11th Cir. 2010)). Instead, the dissenting opinion erroneously concludes that the 2011 armed robbery was relevant to prove plan or common scheme under Rule 404 (b) based on a list of similarities—such as stealing small, expensive, easily transportable items from acquaintances—that do not show a signature crime and instead show only that Wilson “has at other times committed the same commonplace variety of criminal act.” Acevedo, 860 FApp’x at 610. 28 alleged similarities are sufficiently unique to demonstrate a

common plan or scheme. See Heard, 309 Ga. at 88 (“The extrinsic

act must be a signature crime, and the defendant must have used a

modus operandi that is uniquely his.”) (citation and punctuation

omitted).

But “the State did not establish that the features of the charged

crimes and the [prior] crimes, viewed individually or as a whole,

marked those crimes as the unique ‘signature’ of the same

perpetrator.” Id. at 90 (citation omitted). First, the State alleged

that these were not “random armed robber[ies],” but that Wilson

went to Onyx, “approached[] and targeted” “gentlemen who were

very well-dressed, driving expensive cars, [and] wearing very

unusual, expensive watches.” And once Wilson met these men, the

State claimed, he would “get to know [them].”

These claims, however, are not supported by the record. To be

sure, the evidence the State presented at trial supports the

reasonable inference that Wilson visited Onyx on numerous

occasions, and Wilson’s presence at Onyx is a fact common to the

29 2011 armed robbery and to the State’s theory of the crimes related

to Harris’ murder. With respect to the 2011 armed robbery,

however, the record does not show that Wilson used Onyx as a

means of “meeting” Taylor for the first time, as the State claims, but

rather that he pre-arranged to meet Taylor in the parking lot of

Onyx for the purpose of selling Taylor’s sister handbags. Moreover,

the record does not support the State’s assertion that Wilson “g[o]t

to know” Taylor as part of a robbery scheme; it shows that before the

2011 armed robbery, Wilson saw Taylor on only two occasions—once

to sell him the handbags and once at a restaurant when Wilson was

with the woman who sold Taylor his condo.

Likewise, with respect to Harris, there was no evidence that

Wilson went to Onyx specifically searching for “rich men” and

subsequently met Harris. To the contrary, the record shows that

Wilson knew Harris even before he was seen at Onyx with him:

Harris’s fiancée testified that the two men were “friendly” with one

another and that Harris socialized with Wilson. Wilson himself

even admitted that he and Harris would “hang out” on occasion.

30 Moreover, the only connection shown between Wilson, Harris, and

Onyx—testimony from Harris’s fiancée that she saw Wilson and

Harris at Onyx one time, “standing together, just in the same

area”— does not show that Wilson used Onyx (as the State contends)

to “meet” Harris prior to committing the charged crimes. We

therefore see no evidence in the record that, as a part of a robbery

scheme, Wilson used Onyx to “approach[] and target[] victims” and

“get to know” them, as the State argued in support of admitting the

2011 armed robbery to prove common scheme or plan.

Next, the State argues that the 2011 armed robbery shows a

common plan or scheme because the watches stolen from Taylor and

Harris were “very unusual fancy watches,” and that they showed

that Wilson employed a common plan or scheme to obtain those

unique and expensive watches from Taylor and Harris. We

acknowledge that stealing expensive watches appears to be a

common feature between the 2011 armed robbery and the crimes

related to Harris’s murder. But even assuming the jury concluded

by a preponderance of the evidence that Wilson committed the 2011

31 armed robbery in which Taylor’s watch was stolen, the State did not

present evidence showing that the watch stolen in 2011 was similar

enough to the watches stolen from Harris to indicate that there was

a “signature crime,” and that Wilson “used a modus operandi that

[was] uniquely his,” see Pritchett, 314 Ga. at 775 (citation and

punctuation omitted), as opposed to merely stealing expensive items

in the course of committing robbery and other crimes.

To that end, each set of crimes involved the theft of various

other expensive items, not merely expensive watches. A camera,

designer handbags, and designer shoes were also stolen from Taylor

in 2011, and a luxury car, designer clothing, and an iPad were also

stolen from Harris. Accordingly, we cannot say that the fact of

stolen watches—even “very unusual fancy watches”—is indicative of

“a modus operandi that [was] uniquely” Wilson’s, such that it would

support admission under Rule 404 (b), as opposed to a generic

feature of perpetrating robberies: stealing expensive items,

including watches, from ostensibly wealthy people. See Pritchett,

314 Ga. at 775 (citation and punctuation omitted). See also United

32 States v. Thomas, 321 F3d 627, 635 (7th Cir. 2003) (“Here, the

pattern the government considers specific enough to

demonstrate modus operandi is a defendant in possession of

contraband, who, upon seeing police at night, drops or hides that

contraband, then flees on foot. If a pattern so generic can

establish modus operandi, this fairly limited exception to Rule 404

(b) would gut the Rule, rendering it useless as a check on character

evidence that would otherwise be inadmissible.”) (emphasis in

original); United States v. Lail, 846 F2d 1299, 1301 (11th Cir. 1988)

(concluding that a prior bank robbery was inadmissible under Rule

404 (b) where “at least the first three traits [were] common to many

bank robberies,” and the fourth similarity related to the location of

the crimes had no “great significance”); United States v. Luna, 21

F3d 874, 881 (9th Cir. 1994) (in the case of a bank robbery, evidence

of two prior bank robberies was inadmissible where the only

similarities between the respective offenses were “generic features

of a takeover robbery,” such as using guns, masks, gloves, bags, loud

entry, profanity, and abusing bank employees).

33  The State also argues that the 2011 armed robbery and the

crimes related to Harris’s murder are similar because Wilson acted

with accomplices for each set of crimes. On this point, Paulino

testified that Wilson committed the 2011 armed robbery with two

accomplices who were not identified. And in the crimes related to

Harris’s murder, the State presented evidence that Wilson and

Hubbard acted together to commit the crimes. But we cannot say

that evidence that a defendant works with accomplices in

committing crimes—especially when the evidence presented about

two sets of crimes does not involve the same accomplices—is so

unique that it “tended to prove that [Wilson] employed a common

scheme to commit a series of similar crimes.” Heard, 309 Ga. at 87.

(citation and punctuation omitted).

Finally, the State argues that Wilson changed his phone

number after the 2011 armed robbery and after the crimes at issue

in this case, which it says establishes Wilson’s common robbery

scheme. The record shows that after the 2011 armed robbery,

Wilson changed his phone number, telling Taylor’s sister not to call

34 the old number anymore. The record also shows that after Harris’s

death, Wilson changed the phone number for his AT&T phone. This

similarity, however, is not unique enough to show a “unique

signature of the same perpetrator.” See id. at 90 (citation and

punctuation omitted). Indeed, a common feature of many of the

appeals this Court decides is that evidence is presented that

criminals seeking to evade detection will change their phone

numbers or destroy their phones. See, e.g., Sharkey v. State, 320

Ga. 477, 481 (910 SE2d 216) (2024) (evidence showed that the

defendant’s cell phone was disconnected after the victim was shot);

Grant v. State, 319 Ga. 490, 492 (904 SE2d 338) (2024) (“Shortly

after the shooting, [the defendant’s co-defendant] changed his cell

phone number.”). Cf. Heard, 309 Ga. at 88 (noting that stealing a

vehicle and then burning and abandoning that vehicle were not

distinctive enough features to satisfy the common-scheme analysis).

It is also important to note that, although there are some

common features between the 2011 crimes and the crimes related to

35 Harris’s murder, there are also significant differences.19 See id. at

89 (“The similar (but not unique) features of the charged and

uncharged crimes in this case are undermined by the major

differences between them.”). See also Lecompte, 99 F3d at 278

(concluding that the differences between the respective offenses

showed an absence of the specific linkage necessary for Rule 404 (b),

and thus “such evidence is relevant to ‘plan’ . . . only insofar as it

tends to prove a propensity to commit crimes, which Rule 404[](b)

prohibits”). For example, one of the most notable differences was

the nature of the violence employed in each crime. In the 2011

armed robbery, the perpetrators placed a gun to Paulino’s head and

19 Although it is possible for “a number of common features of lesser

uniqueness” to establish “significant probative value when considered together,” see Heard, 309 Ga. at 88, the State has not shown that here. That is because, as described above, the perceived commonalities were more generic and less specific than the State acknowledges, and also because there are significant dissimilarities between the sets of crimes. See Lail, 846 F2d at 1301 (concluding that the “major dissimilarities” between the charged and uncharged bank robberies were more notable than the four similarities, none of which qualified as a distinctive or “signature” characteristics). Cf. McKinney v. State, 307 Ga. 129, 136-137 (834 SE2d 741) (2019) (in concluding that the other-act evidence was admissible to establish identity, the court pointed to “several significant similarities” with the charged offenses—most notably that both victims were the appellant’s former girlfriends—and found no “major differences” between the incidents). 36 grabbed his assistant’s neck. The crimes related to Harris’s murder

were, by contrast, significantly more violent: Harris was bound by

wiring around his wrist and ankles, had cloth wrapped around his

face, was suffocated with plastic, was stuffed in the trunk of his car,

and was left in the trunk to burn while his car was set on fire.

Moreover, the State presented no evidence that the perpetrators of

the 2011 armed robbery engaged in the destruction of physical

evidence, whereas there was strong evidence presented that the

perpetrators of the crimes related to Harris’s death did so: Harris’s

family smelled bleach throughout the house after his murder,

Harris’s phones were submerged in bleach, and Harris’s vehicle was

burned. Finally, the level of familiarity between victim and

perpetrator was markedly different between the 2011 armed

robbery and the crimes related to Harris’s murder. Though evidence

was presented that Wilson knew Taylor’s sister well enough to pre-

arrange and enter into a commercial transaction with her, the

evidence showed that Wilson met Taylor twice—once when they met

at Onyx to complete the transaction for the handbags and again

37 when Taylor saw Wilson at a restaurant with the woman who sold

Taylor his condo; there was no evidence of a personal or professional

relationship between them. By contrast, the evidence showed that

Harris and Wilson had a preexisting relationship: they were known

to be “friendly” and socialize with each other. These differences

meaningfully undermine the State’s theory that Wilson, as part of

his robbery scheme, used Onyx to “approach[] and target[] victims”

because they “were very well-dressed, driving expensive cars, [and]

wearing very unusual, expensive watches;” that he would “get to

know” these men before ultimately, with accomplices, stealing their

“very unusual fancy watches” and then changing his phone number.

We therefore conclude that the trial court also abused its discretion

by admitting evidence of the 2011 armed robbery to show common

scheme or plan. See Heard, 309 Ga. at 89-90 (concluding that

“[t]here was no reason to believe” that the defendant committed the

respective offenses considering the “the major differences between

them”).

(b) Having concluded that the trial court abused its discretion

38 in admitting evidence of the 2011 armed robbery under Rule 404 (b),

we must now determine whether the error was harmless, such that

Wilson’s convictions may stand, or harmful, such that they must be

reversed. In evaluating nonconstitutional harmless error, we

“examine whether it is highly probable that the error did not

contribute to the verdict.” Thompson, 302 Ga. at 542 (citation and

punctuation omitted). “[W]e 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.” Heard, 309 Ga. at 90 (citations and punctuation

omitted).

Importantly, the State has the burden of showing that a

nonconstitutional error was harmless—that is, that it was highly

probable the trial court’s error did not contribute to the verdict. See

Rivera v. State, 295 Ga. 380, 382 (761 SE2d 30) (2014). This burden

is more stringent than the standard for showing prejudice in the

context of plain-error review. See Shaw v. State, 292 Ga. 871, 873

(742 SE2d 707) (2013) (for plain-error review, the burden is on the

39 defendant to make “an affirmative showing that the error probably

did not affect the outcome below”). See also Campbell v. State, 320

Ga. 333, 366 n.35 (907 SE2d 871) (2024) (“Although we reviewed one

of the errors as to [the co-defendants] for only plain error, we need

not decide how that could affect our evaluation of the cumulative

harm because these claims fail even under the stricter harmless-

error standard for preserved non-constitutional errors.”) (emphasis

supplied). Whether or not the State meets its burden is, in part,

dependent on how “powerful the wrongly admitted evidence was

relevant to the overall mix of evidence.” See Harris v. State, 321

Ga. 87, 102 (913 SE2d 570) (2025). In other words, “the harmless-

error question turns on how much the wrongly admitted evidence

likely mattered to the jury’s decision to convict.” Id. at 101 (citation

omitted). If the wrongly admitted evidence was “relatively benign”

or cumulative of other evidence, the State may be able to show that

the error was harmless. See Harris v. State, 314 Ga. 238, 284 (875

SE2d 659) (2022). See also Jivens v. State, 317 Ga. 859, 863 (896

SE2d 516) (2023) (explaining that the allegedly improper admission

40 of photographs of the defendant with firearms was harmless, partly

because “any prejudicial effect these photographs may have had was

minimized by properly admitted evidence that [the appellant], in

fact, had access to guns”). “By contrast, if the wrongly admitted

evidence was weighty—perhaps because it carried a high risk of

prejudice or was important to proving an element of the State’s

case—only the most compelling admitted evidence of guilt might

prevent reversal.” Harris, 321 Ga. at 102 (citation and punctuation

omitted). See also Strong v. State, 309 Ga. 295, 316 (845 SE2d 653)

(2020) (“[A]lthough the jury could have found Appellant guilty if it

believed the State’s witnesses and disbelieved Appellant, we cannot

say that it is highly probable that the trial court’s erroneous

admission of the voluminous evidence that Appellant had previously

committed multiple serious violent acts did not contribute to the

guilty verdicts that the jury returned.”). Critically, other-acts

evidence may be deemed not harmless where it “affects the jury’s

perception of the defendant and its assessment of his credibility.”

Harris, 321 Ga. at 102.

41  Here, we conclude that the trial court’s error was not harmless:

the wrongly-admitted Rule 404 (b) evidence was highly prejudicial

and played a significant role in the State’s case and its portrayal of

Wilson to the jury, and the properly admitted evidence against

Wilson was not so overwhelming that we can say it was highly

probable that the wrongly-admitted Rule 404 (b) evidence did not

contribute to the verdicts.

The State’s case against Wilson was entirely circumstantial.

As we recounted above in Division 1, that circumstantial evidence

included phone records showing that Wilson’s and Hubbard’s phones

communicated on the day of the murder about 50 times, and that

their phones were in the same area as Harris’s phones when Harris

was in Cobb County; that Wilson’s Metro PCS phone then matched

the movement of Harris’s car when it arrived at Harris’s house and

left Harris’s house; and that Wilson’s and Hubbard’s phones were

near the area where Harris’s body was found around the time the

fire started. Additionally, shortly before two witnesses saw smoke

coming from Harris’s vehicle, they saw a white Corvette, which

42 matched the one owned by Hubbard, driving in the direction of the

location where Harris’s car and body were found. This was also

around the same time Wilson’s and Hubbard’s phones were in that

area. Finally, a photo stored on Hubbard’s phone showed him

wearing a watch that matched the description of the watch stolen

from Harris, and the day that photo was taken, both Wilson and

Hubbard were in Detroit—which was the location of a pawn store at

which Harris, Wilson, and Hubbard were customers.

Though this circumstantial evidence is admittedly strong—and

is sufficient to affirm Wilson’s convictions (except for theft by

receiving, as explained more below in Division 3) as a matter of

constitutional due process—it was not so overwhelming that it

rendered the error in admitting the Rule 404 (b) evidence harmless.

See Thompson, 302 Ga. at 542 (in evaluating nonconstitutional

harmless error, we “examine whether it is highly probable that the

error did not contribute to the verdict”).

Indeed, the evidence presented in this case is different from,

and of less probative value than, the evidence presented in other

43 cases in which we have concluded that erroneously-admitted Rule

404 (b) evidence was harmless. Unlike in those cases, where other

direct and overwhelming evidence—such as DNA evidence,

eyewitness testimony, surveillance footage, or a defendant’s

incriminating admissions—meant that it was not highly probable

that the erroneously-admitted Rule 404 (b) evidence contributed to

the verdict, no evidence of that kind was presented here, and the

evidence of Wilson’s guilt was not overwhelming. Compare, e.g.,

Rivera v. State, 317 Ga. 398, 408-411 (893 SE2d 696) (2023)

(erroneous admission of Rule 404 (b) evidence was deemed harmless

in a murder prosecution that involved an alleged sexual assault,

given the overwhelming evidence of guilt—including DNA evidence

and witness testimony placing a car resembling defendant’s

distinctive car at the nightclub where the witness had dropped the

victim off on the night she was last seen alive); Rooks v. State, 317

Ga. 743, 762 (893 SE2d 899) (2023) (893 SE2d 899) (2023) (erroneous

admission of Rule 404 (b) evidence was deemed harmless in light of

surveillance footage showing the defendant with accomplices before

44 and after the murder, cell-phone location data placing him near the

crime scene, the presence of defendant’s DNA at the crime scene,

and defendant’s own admissions to the crime); Randolph v. State,

317 Ga. 146, 154 (891 SE2d 818) (2023) (holding that admission of a

prior home burglary under Rule 404 (b) was harmless in light of the

strong evidence of the defendant’s guilt, including eyewitness

testimony that he was the shooter and the presence of fingerprints

matching the defendant’s at the crime scene); Priester v. State, 316

Ga. 133, 137-138 (886 SE2d 805) (2023) (concluding that the

admission of a prior armed robbery under Rule 404 (b) was harmless

where the other evidence presented at trial included surveillance

video of the defendant committing the crime and testimony from

witnesses who saw the defendant in possession of the vehicle seen

on surveillance video). Nor was the evidence presented against

Wilson cumulative of other properly-admitted evidence, as we have

concluded in other cases where erroneously-admitted Rule 404 (b)

evidence was deemed harmless. Compare, e.g., Kirby, 304 Ga. at

487 (erroneous admission of Rule 404 (b) evidence was deemed

45 harmless because the evidence was cumulative of other properly-

admitted evidence); Hood v. State, 299 Ga. 95, 105-106 (786 SE2d

648) (2016) (wrongly-admitted Rule 404 (b) evidence of defendant’s

participation in drug deals was harmless where evidence that the

defendant had distributed drugs to people other than the murder

victim was properly admitted).

We acknowledge that evidence of cell-phone location data was

presented at trial that placed Wilson’s phone near Harris’s house

shortly before the house was found ransacked, and later near the

locations where Harris’s car and body were discovered, and that

Wilson and Hubbard exchanged numerous phone calls throughout

the day on which Harris was murdered. However, that data could

only show the general area of the cell phone locations, see

Thompson, 302 Ga. at 542 (concluding that that the improper

admission of Rule 404 (b) evidence was not harmless, even though

there was evidence that the defendant’s phone was “near the crime

scene at about the time the murders took place”), and no witnesses

testified to seeing Wilson and Hubbard together on the days in

46 which the crimes against Harris were committed, or to seeing

Wilson near Harris’s house or near Harris around the time of the

crimes, or to seeing Wilson near where Harris’s burning car was

discovered test, see Heard, 309 Ga. at 93 (concluding that the

erroneous admission of Rule 404 (b) evidence was not harmless

despite evidence that the defendant and his accomplice exchanged

28 calls in the hours before the murder—and 10 more shortly before

it—during which time both of their phones were near the crime

scene). And this Court has before concluded that erroneous

admission of Rule 404 (b) evidence in a murder prosecution was not

harmless—despite evidence of a defendant’s multiple phone calls

with his accomplice on the day of the murder, in part, because the

only eyewitness connecting the defendant to the crime scene never

saw the defendant “come, go, or interact with the direct perpetrators

of the crimes.” See Heard, 309 Ga. at 92.

In the face of this less-than-overwhelming, circumstantial

evidence, the introduction of evidence that Wilson committed an

armed robbery that involved holding victims at gunpoint and

47 threatening them to keep quiet slightly over a year before Harris

was robbed and murdered was undoubtedly prejudicial. See Strong,

309 Ga. at 316 (concluding that the violent nature of the erroneously

admitted prior act contributed to its prejudicial value). First,

although the jury heard that Wilson had been charged with some

crimes related to the 2011 armed robbery, the State did not present

evidence that Wilson already had been tried or convicted of any

crimes related to it. This “increased the risk that the jury would

want to punish” Wilson “for his past conduct rather than only for the

charged crimes,” see Jackson v. State, 306 Ga. 69, 79-80 (829 SE2d

142) (2019), especially because the State argued in closing that

Paulino’s interest in testifying in this case was “to seek justice for

his own case” related to the 2011 armed robbery.

Second, evidence of the 2011 armed robbery was a significant

focus of the State’s case, as outlined above in Division 1, and in

particular, because of its heavy reliance on the fact that watches

were stolen in both the prior act and in this case. From the outset

of the State’s prosecution of Wilson, it emphasized the importance

48 of watches. The evidence presented at trial included testimony from

the general manager of the watch store where Harris was a

customer; among other things, he testified about the value of

Harris’s watches. The State also elicited testimony from Harris’s

family members, fiancée, and girlfriends about his affinity for and

ownership of expensive watches and asked Taylor what type of

watch he was wearing when he was introduced to Wilson, as well as

the value of that watch. All of this appeared to be in service of the

State’s effort to connect the 2011 armed robbery to Harris’s murder.

The watches were a focal point the State used to construct and

advance the following transitive relationship: Wilson stole watches

from Taylor; watches were stolen from Harris; and so, Wilson must

have murdered Harris and stolen his watches. See Harris, 321 Ga.

at 102 (“[I]f the wrongly admitted evidence . . . was important to

proving an element of the State’s case—only the most compelling

properly admitted evidence of guilt might prevent reversal.”)

(citation and punctuation omitted). Moreover, the State’s

unrelenting focus on the 2011 armed robbery pervaded its case: the

49 State emphasized the Rule 404 (b) evidence throughout trial to

shape its narrative of Wilson as the kind of person who “rob[s] people

of things that they don’t have and that they want, and that’s exactly

what Mr. Paulino and Mr. Taylor showed” and to show that Wilson’s

“motive is to rob people and to get their things. . . . That’s what he

did[,] or he tried to do[,] with Mr. Taylor and Paulino. And that’s

what he did in this case.” Compare Baker v. State, 318 Ga. 431, 451

n.20 (899 SE2d 139) (2024) (“Although the jury was authorized to

disbelieve [the defendant’s] account, we would expect that the

prosecutor’s repeated use of the video to emphasize [the defendant’s]

alleged propensity for gun violence would have significantly

undermined his credibility with the jurors. In other words, the

prosecutor’s use of the video to emphatically cast [the defendant] as

a violent gunman before the jury had an opportunity to listen to [the

defendant’s] own account and assess his credibility made it more

likely that the jury would disbelieve [the defendant’s] testimony not

because it was unworthy of belief, but because he had been

portrayed as the sort of person who would commit a crime like the

50 one with which he was charged.”) with Bowman v. State, 319 Ga.

573, 584-585 (905 SE2d 605) (2024) (admission of Rule 404 (b)

evidence that the defendant used violence against his ex-wife was

deemed harmless because the “marginal harm” of the other-acts

evidence “was unlikely to have significantly altered the jury’s

perception of [the defendant], given that the jury heard substantial

other evidence, unchallenged on appeal, of [the defendant’s] violence

and jealousy against [the victim]”). In part because of the significant

weight and importance the State placed on watches and the 2011

armed robbery in proving its murder case against Wilson, and the

State’s repetition of improper propensity arguments, the admission

of the Rule 404 (b) evidence was prejudicial.

And this prejudicial effect was exacerbated by the State’s

characterization of Wilson in closing arguments, labeling him a

“professional robber” and, regarding the respective offenses,

emphasizing that “that’s what he does.” This type of framing

underscores the State’s use of the other-acts evidence for propensity,

rather than for a use permissible under Rule 404 (b), because it

51 “added sharper, more damning, and more plainly criminal details to

the State’s portrayal of [Wilson] as a man of despicable character

who deserved punishment.” Harris, 314 Ga. at 284. See also Baker,

318 Ga. at 448-449 (in analyzing whether erroneous admission of

evidence under OCGA § 24-4-403 (“Rule 403”) was harmful,

concluding that admitting evidence of the defendant’s rap music

video was highly prejudicial where the State, during its closing

argument, emphasized that the defendant and “other rap artists

promoted gun violence, because that’s all they know, a pointed

argument that reinforced to the jury [the defendant’s] alleged

violent character”) (citation and punctuation omitted).20 Moreover,

the State has the burden of showing that the erroneously-admitted

Rule 404 (b) evidence was not harmful, and it has not done so here.

20 We recognize that reasonable jurors may have viewed the strength of

the circumstantial evidence described above differently and may have drawn different inferences and conclusions from it as a result. But given the outsized impact the erroneously-admitted Rule 404 (b) watch evidence had at trial, the fact that reasonable jurors may have viewed the strength of the evidence of Wilson’s guilt differently undermines, rather than supports, a conclusion that the evidence was so overwhelming that the jury would have convicted Wilson notwithstanding the admission of the 2011 armed robbery.

52  *

Given the State’s focus on the 2011 armed robbery, its focus on

the common link of expensive watches being stolen (even though

other expensive items were stolen, too), its characterization of

Wilson as a “professional robber,” and the repetition of these

characterizations at key points during Wilson’s trial, we cannot say

that it is “highly probable” that the erroneously admitted evidence

did not contribute to the jury’s verdict. See, e.g., Harris, 314 Ga. at

288-289 (reversing the defendant’s convictions due to the improper

admission of evidence under Rule 403, which was not harmless,

because the evidence was highly prejudicial and the proof of the

defendant’s guilt “was not ‘overwhelming,’ ‘compelling,’ or even

strong”). And the State has not carried its burden to show

otherwise. Because the trial court abused its discretion by

admitting evidence of Wilson’s 2011 armed robbery and that error

was not harmless, we reverse Wilson’s convictions.

3. Wilson does not contend that the evidence was insufficient

as a matter of constitutional due process to support the jury’s guilty

53 verdicts. See Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt

2781, 61 LE2d 560) (1979). But because we have reversed Wilson’s

convictions, we address the sufficiency of the evidence to determine

whether Wilson may be re-tried on the counts for which he was

indicted. See Baker, 318 Ga. at 452 n.21 (reversing the defendant’s

conviction but concluding that he could be re-tried because the

evidence “was constitutionally sufficient to sustain the jury’s guilty

verdicts”) (citation omitted); Harris, 314 Ga. at 289 (same). See also

Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020)

(explaining that we may exercise our discretion to consider the

sufficiency of the evidence sua sponte where the circumstances

justify such review).

When evaluating whether evidence is constitutionally

sufficient to support a jury’s guilty verdicts, “we view all of the

evidence presented at trial in the light most favorable to the

verdict[s] and ask whether any rational trier of fact could have found

the [appellant] guilty beyond a reasonable doubt of the crimes of

which he was convicted.” Jones v. State, 304 Ga. 594, 598 (820 SE2d

54 696) (2018) (citing Jackson, 443 U.S. at 318-319). “We leave to the

jury the resolution of conflicts or inconsistencies in the evidence,

credibility of witnesses, and reasonable inferences to be derived from

the facts, and we do not reweigh the evidence.” Harris v. State, 313

Ga. 225, 229 (869 SE2d 461) (2022) (citation and punctuation

omitted).

(a) As to Wilson’s conviction for theft by receiving stolen

property, we conclude that the evidence was not constitutionally

sufficient to support his conviction. Here, the indictment alleged

that Wilson “did unlawfully receive and retain . . . two watches, of a

value in excess of $25,000 and property of Gregory Harris, said

property having been stolen from the said Gregory Harris and

[Wilson] should have known said property was stolen; said property

not having been received and retained by [Wilson] with intent to

restore the same to its owner.” “A person commits the offense of

theft by receiving stolen property when he receives, disposes of, or

retains stolen property which he knows or should know was stolen

unless the property is received, disposed of, or retained with intent

55 to restore it to the owner. ‘Receiving’ means acquiring possession or

control or lending on the security of the property.” OCGA § 16-8-7

(a).

A review of the record shows that the only evidence presented

at trial that could have supported the allegation that Wilson

committed theft by receiving was that Wilson’s phone was near

Harris’s house prior to Harris’s family discovering that his watches

had been stolen from his home and that Wilson and Hubbard were

in Detroit on the same day that Hubbard pawned a watch and took

a photo of a watch that appeared to be similar to one owned by

Harris. Based on this scant evidence, however, no rational juror

could have concluded beyond a reasonable doubt that the watch

Hubbard had a picture of was, in fact, Harris’s watch, and that thus

Wilson “receiv[ed],” “dispos[ed] of,” or “retain[ed]” Harris’s watch

(and therefore committed theft by receiving). See OCGA § 16-8-7

(a); Jackson, 443 U.S. at 318-319. Cf. Pender v. State, 311 Ga. 98,

102-105 (856 SE2d 302) (2021) (evidence was sufficient to support

theft by receiving stolen property conviction where the State

56 presented evidence that the defendant was in possession of the truck

that had been stolen by his accomplice). This is especially so

considering evidence was presented at trial that Wilson and

Hubbard were previous customers of the pawn store and had bought

and sold multiple watches in the past. We therefore conclude that

the evidence presented at trial was not constitutionally sufficient to

support his conviction for theft by receiving; we reverse that count;

and Wilson may not be retried on it. See Jefferson v. State, 310 Ga.

725, 726-727 (854 SE2d 528) (2021).

(b) As to the remaining guilty verdicts for murder, kidnapping,

and arson, we have reviewed the record and conclude that the

evidence presented at trial and recounted in relevant part above was

constitutionally sufficient to support these convictions. See Beamon

v. State, 314 Ga. 798, 802 (879 SE2d 457) (2022) (concluding that

circumstantial evidence of guilt was constitutionally sufficient to

support convictions for malice murder, kidnapping, and other crimes

where evidence showed, in part, that the defendant’s phone was

near the victim’s apartment on the day of the murder); Heard, 309

57 Ga. at 79-83 (concluding that evidence was constitutionally

sufficient to support the defendant’s convictions where phone

records showed that the defendant and his accomplice

communicated a number of times before the murder and the

defendant’s phone was near the crime scene); Williams v. State, 300

Ga. 161, 164 (794 SE2d 127) (2016) (“Most damning are the cell

phone records, reflecting 25 phone calls between [the co-defendant’s]

cell phones on the day of the crimes, most of which occurred in the

hours leading up to the crimes and which were transmitted from cell

towers in close proximity to the crime scene.”). See also Floyd v.

State, 318 Ga. 312, 317-318 (898 SE2d 431) (2024) (citing Jackson,

443 U.S. at 319). As a result, Wilson may be re-tried on those

counts.

4. Because we have reversed Wilson’s convictions and he may

be retried on some counts, we address a claim that seems likely to

recur if the State elects to retry him: that the trial court erred by

denying his motion to suppress evidence of his cell phone records

and cell phone location data. See McIver v. State, 314 Ga. 109, 144

58 (875 SE2d 810) (2022) (“Because we are reversing some of [the

defendant’s] convictions, we next consider those evidentiary issues

that are likely to recur if the State elects to retry [the defendant].”);

Moon v. State, 312 Ga. 31, 50 (860 SE2d 519) (2021). We disagree

that the trial court erred by denying Wilson’s motion to suppress

this evidence.

In 2012, the lead investigator in Harris’s murder case filed

motions seeking court orders requiring AT&T and Metro PCS to

disclose Wilson’s phone records, including cell phone location data.

The trial court issued the orders under the federal Stored

Communications Act (“SCA”). See 18 USC § 2703 (c) (1) (B) & (d).21

21 At the time Wilson’s cell phone records and cell-phone location data

were obtained by court order in 2012, 18 USC § 2703 (c) (1) provided that “[a] governmental entity may require a provider of electronic communication service . . . to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications),” including, in subparagraph (c) (1) (B), when the governmental entity “obtains a court order for such disclosure under subsection (d) of this section.” 18 USC § 2703 (d) then said, in relevant part: A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that . . . the records or other information sought[] are

59 See also OCGA § 16-11-66.1 (a) (permitting a prosecutor to require

the disclosure of cell phone records “to the extent and under the

procedures and conditions provided for by the laws of the United

States”).

Prior to trial, Wilson filed a motion to suppress his phone

records, “including, but not limited to call details, text messages

details, text message content, subscriber information, etc.” At a

hearing on the motion to suppress, Wilson’s counsel argued that text

messages on Wilson’s phones were inadmissible because

investigators failed to obtain a search warrant, but conceded that

cell phone records and other information derived from those records,

such as subscriber information, call details, and incoming and

outgoing calls, were admissible and could be obtained by court order.

The trial court then suppressed the content of text messages on

Wilson’s phones but admitted his cell phone records. At trial, Wilson

did not object to the admission of his phone records and

relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. 60 accompanying cell-phone location data.

On appeal, Wilson argues that the State’s failure to obtain a

search warrant for his phone records and cell-phone location data

violated his right against illegal searches and seizures under the

Fourth Amendment to the United States Constitution. Relying on

Carpenter v. United States, 585 U.S. 296, 316 (138 SCt 2206, 201

LE2d 507) (2018), Wilson contends that he had a reasonable

expectation of privacy in his phone records and location data and the

State was thus required to secure a search warrant supported by

probable cause (not merely a court order) to obtain his cell phone

records and accompanying location data. See 585 U.S. at 316

(holding that the government must generally obtain a search

warrant supported by probable cause before acquiring historical

cell-phone location data from wireless carriers). Accordingly, Wilson

argues that the trial court should have suppressed all evidence

related to his phone records and not just his text messages.

Without deciding whether Wilson preserved this claim for

ordinary appellate review, we conclude that the trial court did not

61 err in admitting his cell phone records and accompanying location

data. “When reviewing a trial court’s ruling on a motion to suppress,

we review its legal conclusions de novo and independently apply the

law to the undisputed facts.” Gates v. State, 317 Ga. 889, 889 (896

SE2d 536) (2023) (citation omitted).

At the time Wilson’s cell phone records and cell-phone location

data were obtained by court order in 2012, the SCA authorized the

State to obtain cell phone records by court order if that State

provided “specific and articulable facts showing that there are

reasonable grounds to believe” that those records “are relevant and

material to an ongoing criminal investigation.” 18 USC § 2703 (d).

Although Carpenter later concluded that portions of the SCA were

unconstitutional and held that “the Government must generally

obtain a warrant supported by probable cause before acquiring,” see

585 U.S. at 316, a person’s cell phone records, Carpenter had not yet

been decided at the time Wilson’s phone records were obtained by

court order; at that time, the SCA purported to permit the State to

obtain the evidence by court order instead of through a search

62 warrant; and Wilson does not contend that the State failed to meet

the requisite showing under the SCA in 2012. Accordingly, the good-

faith exception to the exclusionary rule applied to the State’s actions

because at the time, investigators reasonably relied in good faith on

a statute that authorized them to obtain cell phone records and cell-

phone location data by court order. See Outlaw v. State, 311 Ga.

396, 400 (858 SE2d 63) (2021) (“[T]he good-faith exception for

objectively reasonable reliance on a statute that appeared

legitimately to allow a warrantless search applies with equal force

here, because 18 USC § 2703 (c) (1) (B) and (d) authorized the State’s

investigative conduct at the time.”) (citation omitted).

Moreover, when the State procured Wilson’s phone records in

2012, binding appellate precedent in Georgia held that a person

“generally had no reasonable expectation of privacy in their cell

phone records and therefore lacked standing to raise a Fourth

Amendment challenge to the disclosure of the records.” Id. (citing

Lofton v. State, 310 Ga. 770, 784 (854 SE2d 690) (2021)). See also

Ross v. State, 296 Ga. 636, 639 (769 SE2d 43) (2015), overruled by

63 Carpenter, 585 U.S. at 310-313; Registe v. State, 292 Ga. 154, 156

(734 SE2d 19) (2012), overruled by Carpenter, 585 U.S. at 310-313.

Thus, because the SCA and binding appellate precedent authorized

the State’s conduct at the time Wilson’s phone records were obtained

by court order in 2012, those records were not subject to exclusion

based on the Fourth Amendment. See Lofton, 310 Ga. at 784

(“Because, at the time of [the defendant’s] trial, a federal statute . .

. and binding appellate precedent . . . authorized the investigatory

conduct at issue, reversing the trial court’s decision in this case

would have little, if any, additional benefit in deterring future

violations of the privacy interests recognized in Carpenter. We

therefore affirm the trial court’s ruling.”) (citation and punctuation

omitted). For all of these reasons, the trial court did not err by

admitting Wilson’s cell phone records and accompanying location

data.

*

For the reasons set out above, the trial court abused its

discretion by admitting evidence of Wilson’s 2011 armed robbery

64 and we conclude that error was not harmless. Wilson’s convictions

must therefore be reversed. The evidence presented at trial was not

constitutionally sufficient to support Wilson’s guilty verdict for theft

by receiving stolen property, so he may not be re-tried on that count.

However, the evidence was sufficient as a matter of constitutional

due process as to the murder, kidnapping, and arson counts, so the

State may re-try him on those counts if it chooses to do so. See

Heard, 309 Ga. at 83 n.10. Finally, the trial court did not err by

admitting Wilson’s cell phone records and cell phone location data.

Judgment reversed. Bethel, Ellington, McMillian, Colvin, and Pinson, JJ, concur. Peterson, CJ, and LaGrua, J, dissent in part.

65  PETERSON, Chief Justice, dissenting in part.

Regardless of whether the trial court abused its discretion by

admitting evidence of the 2011 armed robbery under OCGA § 24-8-

404 (b) (“Rule 404 (b)”), any error was harmless. In my view, the

evidence of Wilson’s guilt, although circumstantial, was very strong

and the jury was highly likely to convict even without the Rule 404

(b) evidence. As a result, I would affirm Wilson’s convictions on all

counts (except the count of theft by receiving stolen property, on

which I agree with the majority’s thorough analysis), and thus I

respectfully dissent in part.

“A trial court’s evidentiary error warrants reversal only if it

was harmful.” Jivens v. State, 317 Ga. 859, 863 (2) (896 SE2d 516)

(2023) (emphasis added). And “[t]he test for determining

nonconstitutional harmless error is whether it is highly probable

that the error did not contribute to the verdict.” Id. (punctuation and

citation omitted). Although the evidence of Wilson’s guilt was

circumstantial, it was nonetheless compelling. Most notably, the cell

phone location data from Wilson’s, Hubbard’s, and Harris’s phones

66 showed that Wilson and Hubbard were with Harris mere hours

before his ransacked house was discovered and then near the

location where Harris’s body and burned-out car were found.

Wilson’s and Hubbard’s phones were also in almost constant

communication in the hours leading up to and following the crime.

We have previously characterized this kind of evidence as

“damning.” Williams v. State, 300 Ga. 161, 164 (1) (794 SE2d 127)

(2016) (cell phone records between co-defendants “on the day of the

crimes, most of which occurred in the hours leading up to the crimes

and which were transmitted from cell towers in close proximity to

the crime scene” was strong evidence of guilt); see also Willis v.

State, 315 Ga. 19, 25 (2) (880 SE2d 158) (2022) (defendant’s cell

phone records “offered strong support” that he was one of the

perpetrators when “[t]he phone records showed not only that [the

defendant] was near the location of both crimes at the time they

were committed, but also that he moved around the city with his co-

defendants after the crimes, and that he was in communication with

them throughout the day”).

67  The State also presented evidence that, in the days following

the murder, Wilson and Hubbard both left Atlanta for Detroit, see

Gray v. State, 319 Ga. 72, 78 (2) (901 SE2d 556) (2024) (noting that

flight is “admissible as evidence of consciousness of guilt, and thus

of guilt itself”) (punctuation and citation omitted), Hubbard took a

photo wearing a watch that matched the description of one of the

stolen watches, and Hubbard had money to pay the Detroit pawn

shop and pawned a watch there. And during the week following the

murder, Wilson wiped his phone and then disconnected it. See

Martin v. State, 306 Ga. 538, 541 (1) (832 SE2d 402) (2019) (efforts

to destroy or conceal evidence indicative of consciousness of guilt).

Finally, Wilson refused to answer whether he had ever been in

Harris’s house.

In reversing, the majority relies heavily on our decision in

Heard v. State, 309 Ga. 76 (844 SE2d 791) (2020). But the location

data in Heard was much less damning. It involved two locations: one

that also happened to be where the defendant lived, such that the

presence of his phone was not unusual, and the other that was

68 probative only because it linked the defendant to a codefendant as

to whom there was little evidence that he was involved in the crimes.

See id. at 93. Heard was quite unlike this case.

Considered together, any reasonable jury would have returned

a guilty verdict in the light of all of this evidence. See Parks v. State,

300 Ga. 303, 308 (1) (794 SE2d 623) (2016) (“where evidence of guilt

is overwhelming, erroneous admission of Rule 404 (b) evidence is

harmless” (punctuation and citation omitted)); see also Jackson v.

State, 306 Ga. 69, 81 (2) (c) (829 SE2d 142) (2019) (holding other acts

evidence harmless where “there was compelling circumstantial

evidence of Appellant’s involvement in the shooting”). Accordingly,

even if the Rule 404 (b) evidence was inadmissible, and even with

how prejudicially the State chose to use it, the jury’s verdict would

not have been different.

In short, I think it is highly probable that the improper Rule

404 (b) evidence did not contribute to the verdict. Accordingly, I

respectfully dissent in part.

69  LAGRUA, Justice, dissenting in part.

More than a decade ago, the General Assembly “enacted a new

Evidence Code, of which [OCGA § 24-4-404 (b) (“Rule 404 (b)”)] is a

part.” Olds v. State, 299 Ga. 65, 68 (2) (786 SE2d 633) (2016).

Because “[m]any provisions of [our] new Evidence Code were

borrowed from the Federal Rules of Evidence,” our Court looks to

“decisions of the federal appellate courts construing and applying

the Federal Rules, especially the decisions of the United States

Supreme Court and the Eleventh Circuit,” in considering “the

meaning of these provisions.” Id. (citation omitted). “Rule 404 (b) is

one such provision, and so, when we have considered the meaning of

Rule 404 (b), we consistently have looked for guidance in the

decisions of the federal appellate courts construing and

applying Federal Rule of Evidence 404 (b).” Id. (citations omitted).

See also State v. Almanza, 304 Ga. 553, 556 (2) (820 SE2d 1) (2018)

(“[T]he rule is simple: if a rule in the new Evidence Code is

materially identical to a Federal Rule of Evidence, we look to federal

case law.”) (citation omitted).

70  When our federal counterparts have construed and applied

Federal Rule of Evidence 404 (b), they have concluded that, while

“[e]vidence of uncharged or past crimes is not admissible to prove a

person’s character in order to show that on a particular occasion the

person acted in accordance with the character,” United States v.

Cenephat, 115 F4th 1359, 1365 (II) (A) (11th Cir. 2024), “such

evidence may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” United States v. Nerey, 877

F3d 956, 974 (VI) (11th Cir. 2017) (citations and punctuation

omitted). And, in this respect, “Rule 404 (b) is a rule of inclusion,”

id. (emphasis supplied), and “relevant prior bad acts evidence like

other relevant evidence, should not lightly be excluded when it is

central to the prosecution’s case.” United States v. Abreu-Jimenez,

535 F.App’x 860, 867 (II) (A) (11th Cir. 2013) (citation and

punctuation omitted).

This Court has also said that Rule 404 (b) “is, on its face, an

evidentiary rule of inclusion which contains a non-exhaustive list of

71 purposes other than bad character for which other acts evidence is

deemed relevant and may be properly offered into evidence.”

Prichett v. State, 314 Ga. 767, 774 (2) (a) (879 SE2d 436) (2022)

(citation and punctuation omitted; emphasis supplied). See also

OCGA § 24-4-404 (b) (evidence may “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”) (emphasis supplied). However, of late, this Court

appears to have forgotten, or has simply decided to discredit, the

inclusive nature of Rule 404 (b) and our standard of review when

examining a trial court’s ruling on whether to admit 404 (b) evidence

at trial. See Harris v. State, 321 Ga. 87, 106 (913 SE2d 570) (2025)

(LaGrua, J, dissenting) (noting that “[t]he majority’s opinion departs

from this long-established precedent” that “Rule 404 (b) is an

evidentiary rule of inclusion” and “continues the Court’s trend of

moving away from this principle of inclusion”). See also id. at 95 (2)

(a) (“We review [a Rule 404 (b)] ruling for an abuse of discretion.”).

While I understand there may be some disagreement about the

72 admission of other-acts evidence against a defendant at trial, the

law allows that, with certain exceptions, other-act evidence can be

admitted when that evidence is both relevant and probative to

matters other than the defendant’s criminal disposition. And, unless

or until the General Assembly modifies Rule 404 (b), I will adhere to

the legal standard provided by this rule, as well as the deference we

must give to the discretion of trial courts in determining whether

other-acts evidence is admissible at trial.22 Accordingly, I

respectfully dissent.

1. As an initial matter, I recognize that, even when evidence is

being offered for a proper purpose under Rule 404 (b), it may still 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.” OCGA § 24-4-403. And, to that

22 See, e.g., Harris, 321 Ga. at 95 (2) (a); Nerey, 877 F3d at 977 (VI); United States v. Eckhardt, 466 F3d 938, 946 (11th Cir. 2006); United States v. Matthews, 431 F3d 1296, 1310-1311 (11th Cir. 2005); United States v. Henderson, 409 F3d 1293, 1297 (11th Cir. 2005). 73 end, we apply “a three-part test to determine if the evidence of a

defendant’s other acts is admissible,” requiring “the proponent of the

evidence” to show

(1) that the evidence is relevant to an issue in the case other than the defendant’s character; (2) that the probative value of the evidence is not substantially outweighed by its undue prejudice; and (3) that there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act.

Prichett, 314 Ga. at 774 (2) (a) (citation omitted). See also United

States v. LeCompte, 99 F3d 274, 277 (8th Cir. 1996) (“Under Rule

404 (b), testimony concerning other bad acts is admissible if it is

relevant to a material issue, established by a preponderance of the

evidence, more probative than prejudicial, and similar in kind and

close in time.”) (citation and punctuation omitted). See also Nerey,

877 F3d at 974 (VI).

Notably, we have said that “the exclusion of evidence

under Rule 403 is an extraordinary remedy which should be used

only sparingly,” Baker v. State, 318 Ga. 431, 442 (2) (a) (899 SE2d

139) (2024) (citation and punctuation omitted), and so, “in reviewing

74 the admission of evidence under Rule 403, we look at the evidence

in a light most favorable to its admission, maximizing its probative

value and minimizing its undue prejudicial impact.” Wilson v. State,

312 Ga. 174, 190 (2) (860 SE2d 485) (2021) (citation and punctuation

omitted; emphasis supplied).

2. In this case, the majority opinion concludes that the other-

acts evidence presented in this case “was not relevant to the

purposes for which the State propounded the evidence,” and thus,

the trial court abused its direction by admitting this evidence at

trial. I disagree.

OCGA § 24-4-401 defines “[r]elevant evidence” as “evidence

having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less

probable than it would be without the evidence.” We have described

the standard for relevant evidence as “a liberal one” and held that

“such evidence is generally admissible even if it has only slight

probative value.” Siders v. State, 320 Ga. 367, 374 (3) (a) (907 SE2d

645) (2024). See also Booth v. State, 301 Ga. 678, 683 (3) (804 SE2d

75 104) (2017) (“The test for relevance under Rule 401 is generally a

liberal one[.]”).

At trial, the State was permitted to introduce evidence of the

2011 armed robbery to prove Wilson’s motive and/or common plan

or scheme in committing the underlying crimes at issue here. And,

certainly, evidence of the 2011 armed robbery was relevant to the

issue of common plan and scheme.

In prior cases addressing the proper use of Rule 404 (b) evidence to show plan or preparation in connection with a defendant’s participation in the crimes charged, this Court has applied federal case law to recognize two general categories of “plan” evidence under Rule 404 (b): the other-acts evidence shows the planning of or preparation for the charged offense, or it tends to prove that the defendant employed a “common scheme” to commit a series of similar crimes.

Pritchett, 314 Ga. at 775 (2) (b) (citations and punctuation omitted).

This case fits squarely in the latter category.

Within this category, “we have explained that this approach

blends the purpose of plan with the purpose of identity – showing

that a distinctive plan was used tends to prove that the same person

executed both plans.” Pritchett, 314 Ga. at 775 (2) (b) (citation and

76 punctuation omitted; emphasis in original). See also LeCompte, 99

F3d at 277 (noting that, “[i]n many cases,” other-acts evidence is

“relevant to proving plan, preparation, and modus operandi . . .

because it tended to prove that [the] defendant employed a common

scheme to commit a series of similar crimes”) (citations and

punctuation omitted). This category might also “involve[] similar act

testimony constituting a continuing scheme or conspiracy.” Morrell

v. State, 313 Ga. 247, 257 (2) (a) (869 SE2d 447) (2022) (quoting

United States v. O’Connor, 580 F2d 38, 41-42 (2d Cir. 1978);

punctuation omitted).

The majority opinion concludes that the trial court abused its

discretion by admitting evidence of the 2011 armed robbery to show

common plan or scheme because the State merely showed that

Wilson “at other times committed the same commonplace variety of

criminal act” at issue here and because, while there were “some

similarities” between the 2011 armed robbery and the crimes

against Harris, “those similarities are not sufficient to establish the

‘modus operandi’ or ‘handiwork of the accused’ necessary to

77 establish common plan or scheme under Rule 404 (b).” Prichett, 314

Ga. at 775 (2) (b). To the contrary, I see no abuse of discretion in the

trial court’s admission of the 2011 armed robbery as “a common

scheme to commit a series of similar crimes.” Morrell, 313 Ga. at 257

(2) (a) (citation and punctuation omitted).

In the 2011 armed robbery involving Taylor and the charged

offenses against Harris, which occurred just over a year apart,

Wilson followed a pattern. He would identify a certain type of

victim—someone with whom he shared a common link 23 and who

seemingly had considerable wealth with a taste for expensive items

that could easily be transported and sold for value. Wilson would

gain access to and became familiar with these victims through

casual interactions at a strip club, a night club, a restaurant, and/or

a party, and he would then find a way to engage them directly or

through a close acquaintance—a pattern he followed with both

Taylor and Harris. And, after observing that these men had items

23 Wilson and Harris were both from Detroit and conducted business at

the same Detroit pawnshop. Taylor’s sister—a realtor—knew Wilson because her boss, who sold Taylor his condominium, “used to mess around” with Wilson. 78 of significant value—expensive watches and luxury automobiles—

and that they might not have the scruples of other wealthy

individuals 24—i.e., by earning their money from selling drugs or by

showing a recklessness in purchasing designer handbags from a guy

in the parking lot of a strip club, for cash, for a fraction of their

value 25—Wilson intuited that he could likely target and steal from

these victims without running the risk of the theft being reported to

law enforcement.26 Moreover, when Wilson ultimately stole from the

24 The majority opinion describes Taylor as “a wealthy Atlanta businessman.” But this characterization suggests that Taylor was a random victim in an isolated incident and does not accurately reflect that Taylor has also been involved in illicit activities, has a criminal record, has a history with Wilson, and has known Harris—the victim in this case and a known drug dealer—since childhood. 25 Taylor testified that he met Wilson in the parking lot of the Onyx—a

strip club where Wilson had also admittedly hung out with Harris—and purchased $40,000-worth of designer handbags for only $10,000 in cash. Taylor also testified that he did not exit his vehicle during this transaction and “wasn’t sure” the situation was “safe.” From these circumstances, the jury could infer that these handbags were stolen, and Taylor knew that. See Daughtie v. State, 297 Ga. 261, 262 (2) (773 SE2d 263) (2015) (concluding that such knowledge “may be inferred from the circumstances, when the circumstances would excite the suspicion in the minds of ordinarily prudent persons”) (citation omitted). 26 Taylor testified that, on May 31, 2011, he knew Wilson was the person

who had robbed his condo, but he did not call the police because he preferred to “see [Wilson] himself,” which meant to “beat” Wilson himself. According to Taylor, he did not decide to tell the police that Wilson was the perpetrator of the 2011 armed robbery until he saw that “they had [Wilson] on TV for

79 victims, he took items he could carry; items that would fit into bags;

items that could easily be sold at a pawn shop or on the street; items

like cameras, iPads, designer clothing and accessories, designer

shoes, and watches. These are the kinds of items he stole from both

victims, and the types of items Wilson looked for in selecting his

mark.

In sum, the 2011 armed robbery demonstrated Wilson’s modus

operandi: a common plan or scheme to steal high-end, easily

conveyable and transferrable items from wealthy, casual

acquaintances or friends, who engaged in questionable (if not illegal)

activity.27 And, thus, the other-acts evidence was relevant to

establishing that Wilson engaged in a common plan or scheme in

committing the crimes in this case. See Morrell, 313 Ga. at 257 (2)

murder,” but Taylor admitted that, if Wilson had not been “on the news,” he “never would have told the police,” which emphasizes that Wilson targeted people who were unlikely to report the crime to law enforcement. 27 Although Harris’s luxury car was also taken and later discovered

burning with his body inside—which would distinguish the 2011 armed robbery from the present case—we do not know what circumstances gave rise to those distinguishing characteristics. But we do know that Taylor was not home when the 2011 armed robbery occurred, his housecleaner was held at gunpoint during the robbery, and Wilson threatened to kill the housecleaner if he went to the police. 80 (a). Additionally, the fact that “the other-acts evidence occur[ed]

near in time” and place “helped establish the link necessary” to tie

Wilson to the underlying crimes against Harris. Id.

3. Having concluded that the evidence was relevant, I also

conclude that “the probative value of the evidence [wa]s not

substantially outweighed by its undue prejudice” under Rule 403.

Prichett, 314 Ga. at 774 (2) (a).28 As noted above,

[t]he Rule 403 analysis is committed to the trial court’s discretion, and exclusion of relevant evidence under this test is an extraordinary remedy which should be used only sparingly. In reviewing issues under Rule 403, courts must look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact. There is no single test for conducting this Rule 403 balancing for “plan” evidence, likely because all circumstances should be taken into account.

Morrell, 313 Ga. at 259 (2) (b) (quoting Jones v. State, 301 Ga. 544,

28 As to the last prong of this test—i.e., whether “there is sufficient proof

for a jury to find by a preponderance of the evidence that the defendant committed the other act,” id.—Wilson does not argue that “the State failed to satisfy its burden under the third part of the test to show that he committed” the 2011 armed robbery. Greene v. State, 316 Ga. 584, 597 (3) (889 SE2d 864) (2023). Additionally, at trial, the jury heard that Wilson was arrested and charged with several crimes arising from the 2011 armed robbery. Thus, I will not address this final prong. 81 546-547 (1) (802 SE2d 234) (2017) and United States v. Brown, 441

F3d 1330, 1362 (11th Cir. 2006); punctuation omitted). This Court

has held that, when other-acts evidence is used to prove common

plan or scheme, “temporal proximity and similarity between the

offenses are factors that are frequently cited as heightening

probative value.” Id. at 260 (2) (b).

Mindful that “Rule 403 should be used to exclude evidence

‘sparingly,’” Morrell, 313 Ga. at 260 (2) (b), I “see no abuse of

discretion in the trial court’s conclusion that the probative value of

the evidence was not substantially outweighed by the danger of

unfair prejudice.” Id. There was no direct evidence in this case

demonstrating that Wilson participated in the crimes against

Harris, and Wilson disputed any involvement in the commission of

these crimes, increasing the prosecutorial need for the other-acts

evidence to explain Wilson’s role as an active participant in the theft

and murder of Harris. See Jones, 301 Ga. at 547 (1) (noting that the

probative value of evidence becomes greater when the fact for which

it is offered is disputed). The evidence of the 2011 armed robbery—

82 occurring a little over a year before the charged offenses and bearing

striking similarities thereto—strengthened the link between Wilson

and the crimes against Harris. Moreover, the trial court instructed

the jury that it could consider the other-acts evidence only for

certain limited purposes, including Wilson’s common plan or scheme

to commit the crimes for which he was charged and not for any other

purpose, such as propensity to commit the crimes at issue. See

Greene v. State, 316 Ga. 584, 602 (3) (889 SE2d 864) (2023).

For these reasons, I conclude that the trial court did not abuse

its discretion in determining that the probative value of the other-

acts evidence outweighed any prejudicial impact and in admitting

the challenged evidence at trial. See Nerey, 877 F3d at 977 (VI).

4. Finally, given the recent trend in this Court’s decisions

regarding the admissibility of other-acts evidence under Rule 404

(b), I would caution prosecutors and trial courts in seeking to

introduce such evidence, in allowing the admission of such evidence,

and/or in instructing the jury on the limited purposes of such

evidence to mindfully consider the circumstances in which we have

83 concluded this type of evidence will be admissible and to track our

language and the parameters we have instituted in doing so.

Therefore, I respectfully dissent in part.

84