BROWN v. STATE (2025)

A jury found James D. Brown guilty of theft by taking and criminal trespass. Following the denial of his motion for new trial, Brown appeals arguing that the trial court erred in admitting evidence of other crimes for the purpose of establishing identity and intent. Finding no error, we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that, during the early morning hours on July 6, 2020, Sergeant Carolina Pittman was on patrol when she saw a man standing in front of a closed business. The man, who was wearing black clothing and had his face covered, was standing next to a newspaper box. Pittman knew there had been a rash of recent break-ins of newspaper boxes, so she turned into the parking lot at which time the man fled. Although Pittman was unable to see the man clearly, she noted that he ran with a limp. She immediately suspected Brown, who she knew walked with a limp. Upon reaching the newspaper box, Pittman discovered it had been broken into, and there were coins lying on the ground. The owner of the newspaper box testified that the top had been pried open such that when the box was turned over, the money would fall out. The owner estimated that $60 to $80 had been stolen.

After the store opened, Pittman was able to obtain video footage from a security camera. Although the video did not unequivocally establish Brown as the perpetrator, it did show a man with the same build, coloring, and hair as Brown. Two officers from the Americus Police Department, who had known Brown for 15 and 20 years respectively, testified that they had watched the video and, without having been given Brown's name as a suspect, were able to identify him as the perpetrator. In order to establish Brown's identity, the State also tendered evidence that he had previously been convicted of multiple counts of theft by taking and criminal trespass for having broken into and/or stolen six newspaper boxes in Sumter County. Based on the evidence presented, the jury found Brown guilty. Following the denial of his motion for new trial, as amended, Brown appeals.

Brown argues that the trial court erred in admitting evidence of his prior crimes. Under OCGA § 24-4-404 (b) (“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.” Such 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.” See id. The party seeking admission of evidence under Rule 404 (b) must 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.

Heard v. State, 309 Ga. 76, 84 (3) (b), 844 S.E.2d 791 (2020) (citation and punctuation omitted). Furthermore,

[e]vidence offered to prove identity must satisfy a particularly stringent analysis. When extrinsic offense evidence is introduced to prove identity, the likeness of the offenses is the crucial consideration. 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. The extrinsic act must be a ‘signature’ crime, and the defendant must have used a modus operandi that is uniquely his. The signature trait requirement is imposed to insure that the State is not relying on an inference based on mere character — that a defendant has a propensity for criminal behavior. Evidence cannot be used to prove identity simply because the defendant has at other times committed the same commonplace variety of criminal act. We are charged to consider the dissimilarities as well as similarities in determining whether other acts evidence is admissible to show identity. However, the charged crimes and the prior crime need not be, and never will be, identical in every detail. But they must possess a common feature or features that make it very likely that the unknown perpetrator of the charged crime and the known perpetrator of the prior crime are the same person.

Burrell v. State, 363 Ga. App. 491, 497-498 (3), 870 S.E.2d 918 (2022) (citations and punctuation omitted).

According to Brown, the prior newspaper box break-ins were not sufficiently unusual to constitute a signature crime and thus should not have been admitted to prove his identity. We disagree. As a target for theft, a newspaper box is quite unusual. Indeed, the trial court noted on the record “I'm not familiar with [the targeting of paper vending machines] in any other case I've ever been in, particularly in downtown Americus. The way this has happened, over and over, has been really astonishing to me as far as a peculiar modus operandi.” In light of the number of times Brown engaged in the exact same crime — stealing from a newspaper box — in the same county, we cannot say the trial court abused its discretion in admitting evidence of the prior crimes to establish identity. See Olushola v. State, 373 Ga. App. 274, 284 (4) (a), 908 S.E.2d 249 (2024); Tariq-Madyun v. State, 361 Ga. App. 219, 225-226 (3) (b), 863 S.E.2d 703 (2021).

Brown also argues the trial court abused its discretion in admitting the other crimes evidence for the purpose of establishing intent. Because we found the evidence was admissible to establish identity, we need not address whether the prior crimes were also admissible to establish intent. See Broadwater v. State, 359 Ga. App. 87, 94 n. 8, 854 S.E.2d 767 (2021).

Judgment affirmed.

FOOTNOTES

1.   Jackson v. Virginia, 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Per Curiam.

Division Per Curiam. All Judges concur.