In that regard, evidence regarding the defendant’s gang affiliation is relevant and admissible when it is "intrinsic" to the crimes charged. Fleming v. State , 306 Ga. 240, 244, 830 S.E.2d 129 (2019). Evidence is intrinsic " ‘when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense.’ "
Therefore, "because a plea of not guilty puts the prosecution to its burden of proving every element of the crime – including intent – evidence of other acts that tends to make the requisite intent more or less probable to any extent is relevant." Fleming v. State , 306 Ga. 240, 246 (3) (b), 830 S.E.2d 129 (2019) (citation and punctuation omitted). See also Olds v. State , 299 Ga. 65, 72 (2), 786 S.E.2d 633 (2016) ("[E]vidence that an accused committed an intentional act generally is relevant to show ... that the same defendant committed a similar act with the same sort of intent[.]").
And our Supreme Court has held that evidence regarding the defendant's gang affiliation is relevant and admissible when it is " ‘intrinsic’ to the crimes charged." Fleming v. State , 306 Ga. 240, 245 (3) (a), 830 S.E.2d 129 (2019). Evidence is considered intrinsic to the crime at issue when it: (1) involves "an uncharged offense arising from the same transaction or series of transactions as the charged offense"; (2) is necessary "to complete the story of the crime"; or (3) is "inextricably intertwined with the evidence regarding the charged offense."
Conviction as a party to a crime requires proof that the defendant "shared a common criminal intent with the direct [perpetrator]" of the crimes. Fleming v. State , 306 Ga. 240, 247 (3) (b), 830 S.E.2d 129 (2019). A jury may infer a common criminal intent from the defendant's presence, companionship, and conduct with the other perpetrator before, during, and after the crimes.
Under the circumstances, we need not examine whether this evidence was also admissible on the issue of intent because we conclude that it was admissible as to absence of accident or mistake. See Fleming v. State , 306 Ga. 240, 246 (3) (b), n.7, 830 S.E.2d 129 (2019). (b) Mike also contends that even if the other acts evidence was admitted for a proper purpose, the prejudicial nature of the evidence far outweighed its probative value because five of the six incidents occurred while Mike was incarcerated, and thus evidence of his prior incarceration was presented to the jury.
Evidence is admissible as intrinsic to the crimes charged when it is "(1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense." Fleming v. State , 306 Ga. 240, 244 (3) (a), 830 S.E.2d 129 (2019) (citation and punctuation omitted). Intrinsic evidence must also satisfy the balancing test set forth in OCGA § 24-4-403.
These similarities and temporal proximity between the two robberies demonstrate that the probative value of the 2000 armed robbery evidence to prove Randolph's intent to commit the armed robbery in this case was significant. See, e.g., Hood , 309 Ga. at 501 (2), 847 S.E.2d 172 (evidence of other robbery was probative of defendant's intent to participate in charged crimes of felony murder predicated on armed robbery, aggravated assault, and related crimes because of, inter alia, similarities between the incidents, which occurred less than four months apart from one another); Fleming v. State, 306 Ga. 240, 248 (3) (b), 830 S.E.2d 129 (2019) (the other-acts evidence had a high probative value because, inter alia, the other act had significant similarities and occurred within less than one year of the charged crimes). Although the evidence of the 2000 armed robbery was certainly prejudicial to Randolph, its prejudicial value was fairly low, given that no one was physically harmed in the course of the robbery, and moreover, Rule 403 requires the balancing of the probative value of the evidence against the danger of unfair prejudice.
And these acts occurred within two years of Noel's death. See, e.g., Fleming v. State , 306 Ga. 240, 248 (3) (b), 830 S.E.2d 129 (2019) (the other-acts evidence had a high probative value where the similar incident occurred less than one year after the charged crimes); see also United States v. Ramirez , 426 F.3d 1344, 1354 (11th Cir. 2005) (other acts were probative where they occurred three years prior to charged crimes). The exact timing of the other acts is unclear from the record, but the evidence shows that Hounkpatin arrived in the United States in January 2012, he met Howell soon thereafter, and Noel was two years and nine months old when he died in January 2014.
And because the Boulevard Place evidence pertained to the chain of events in this case by connecting the gambling house and restaurant incidents to each other and to Appellant and by indicating that these incidents were related to the ABG gang, the evidence was reasonably necessary to complete the story of the crimes for the jury and therefore intrinsic to the crimes charged. See, e.g., Smith , 307 Ga. at 272-273, 834 S.E.2d 1 (concluding that a witness's statements about the appellants’ sale and use of drugs were admissible as evidence intrinsic to the charged offenses of murder and related crimes because they were reasonably necessary to complete the story of the crimes, where the statements advanced the State's theory of the case that the charged offenses were a culmination of drug-related robberies); Fleming v. State , 306 Ga. 240, 245, 830 S.E.2d 129 (2019) (holding that evidence of the appellant's gang affiliation was admissible as evidence intrinsic to the charged offenses of murder and other crimes because it completed the story of the crimes and enabled the State to explain his association with the shooters and his role in the crimes). Turning to the analysis under Rule 403, the evidence of the Boulevard Place incident had significant probative value.
Moreover, the trial court instructed the jury both before opening statements and after closing arguments that the lawyers’ statements were not evidence. See Dobbins , 309 Ga. at 168-169 (3), 844 S.E.2d 814 (explaining that even assuming that the trial court erred in not rebuking the prosecutor under OCGA § 17-8-75, any such error was harmless because of the strong evidence against the defendant and the trial court's instructions that closing argument is not evidence); see also Fleming v. State , 306 Ga. 240, 243 (2), 830 S.E.2d 129 (2019) (same). As a result, "it is highly probable that the trial court's alleged error in failing to comply with OCGA § 17-8-75 did not contribute to the verdicts."