Ronald Eric Lofland v. State

                              FOURTH DIVISION
                               DILLARD, P. J.,
                           RICKMAN and BROWN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 13, 2020




In the Court of Appeals of Georgia
 A20A0913. LOFLAND v. THE STATE.

      RICKMAN, Judge.

      Following a jury trial, Ronald Eric Lofland was convicted on one count of

aggravated assault (family violence) with a deadly weapon.1 He filed a motion for

new trial, which the trial court denied. Lofland argues on appeal that the trial court

erred by admitting evidence of other acts and by failing to charge the jury on an

essential element of aggravated assault (family violence). We find no reversible error

and affirm.

              On appeal from a criminal conviction, we view the evidence in the
      light most favorable to support the jury’s verdict, and the defendant no
      longer enjoys a presumption of innocence. We do not weigh the


      1
         Lofland was charged with, but acquitted on, one count of cruelty to children
in the third degree.
      evidence or judge the credibility of the witnesses, but determine only
      whether the evidence authorized the jury to find the defendant guilty of
      the crimes beyond a reasonable doubt in accordance with the standard
      set forth in Jackson v. Virginia, 

443 U.S. 307

(99 SCt 2781, 61 LEd2d
      560) (1979).


(Citation and punctuation omitted.) Smart v. State, __ Ga. App. __ (846 SE2d 172)

(2020).

      So construed, the evidence showed that Lofland and the victim were married

and had two children together, and Lofland was a stepfather to the victim’s 15-year-

old daughter. In January 2016, the victim returned home from work in the early

morning hours and as she was attempting to fall sleep, Lofland, who had been

drinking, began slapping her and accusing her of being unfaithful to him. According

to the victim, he “always accused [her]” of cheating on him. The victim eventually

went to sleep, but the arguing began anew after she woke up. The victim threatened

to take their children and leave, at which time Lofland retrieved a knife from the

kitchen, held it to the victim’s abdomen, and told her, “I’m going to fucking cut you

in the naval.” The victim’s teenage daughter then walked into the room and screamed,

“[N]o, Daddy!”, causing Lofland to immediately stop threatening the victim and

begin comforting the child, who had dropped to the floor crying.

                                         2
       Lofland was subsequently arrested, charged, and convicted on one count of

aggravated assault (family violence) with a knife, a deadly weapon. See OCGA §§

16-5-20 (a) (1), (2); 16-5-21 (a) (2), (i). He filed a motion for new trial, which the trial

court denied. This appeal follows.

       1. Lofland asserts that the trial court erred by admitting other acts evidence

under Rule 404 (b). We disagree.

       Prior to trial, the State filed a notice of its intent to admit evidence that, four

months after the knife incident for which Lofland was indicted, he shot the victim and

her male friend with a handgun.2 The trial court conducted a hearing, after which the

court determined that the evidence was admissible to the extent that it may show

intent, the reasonableness of the victim’s fear, and the “state of feelings” between the

defendant and the victim.3




       2
       At the time of trial, Lofland had not been charged in connection with the
shooting.
       3
         We note that similar other acts evidence has been used to show motive in
other cases involving domestic violence; however, the State did not request, and the
trial court did not admit, the other acts evidence for that purpose in this case. See,
e.g., Smart v. State, 

299 Ga. 414

, 447 (2) (a) (788 SE2d 442) (2016); Chambers v.
State, 

351 Ga. App. 771

, 778-779 (2) (833 SE2d 155) (2019); Harris v. State, 338 Ga.
App. 778, 782-783 (792 SE2d 409) (2016).

                                             3
      The victim thereafter testified that, approximately four months after the knife

incident, she hosted several family members at her home for dinner. Lofland did not

attend but was within walking distance at the victim’s brother’s house up the street.4

After the rest of her family had left, the victim was on the porch with a male friend,

when Lofland approached them and asked, “What’s going on here?” He then pulled

out a handgun and shot both the victim and her male friend; neither wound was fatal.

The male friend jumped over the balcony and fled, while the victim ran inside the

house and locked the door. Lofland remained outside tampering with the door, but

left after the victim’s teenage daughter went to the door and screamed, “[N]o, Daddy

. . . get away from the door.” The male friend offered testimony about the event

consistent with that of the victim’s, and the trial court gave the jury a limiting

instruction prior to their testimony.5

      We begin by noting that the trial court correctly determined that the

admissibility of the other acts evidence, which would have previously been analyzed

      4
        Lofland was out on bond after having been arrested for the crime at issue in
this case.
      5
         The victim also testified that on a different occasion, Lofland threw a glass
bottle at the wall above her head and the shattered glass cut her, requiring a staple in
her scalp. The admission of that evidence was not challenged and is not at issue in
this appeal.

                                           4
as evidence of “prior difficulties,” is now governed by Rule 404 (b). See Flowers v.

State, 

307 Ga. 618

, 620-621, n.3 (1) (837 SE2d 824) (2020) (overruling several cases

from this Court which relied upon pre-Rule 404 (b) cases when analyzing the

admission of prior difficulty evidence).

      Rule 404 (b) provides, in pertinent part, as follows:

      Evidence of other crimes, wrongs, or acts shall not be admissible to
      prove the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, including,
      but not limited to, proof of motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident. . . .


The Rule “explicitly recognizes the relevance of other acts evidence offered for a

permissible purpose and, at the same time, prohibits the admission of such evidence

when it is offered solely for the impermissible purpose of showing a defendant’s bad

character or propensity to commit a crime.” (Citation and punctuation omitted;

emphasis in original.) 

Flowers, 307 Ga. at 621

(2).

      When assessing the admissibility of other acts evidence, the trial court must

apply a three-part text to examine whether:

      (1) the other acts evidence is relevant to an issue other than the
      defendant’s character, (2) the probative value is not substantially
      outweighed by undue prejudice under OCGA § 24-4-403 (“Rule 403”),

                                           5
      and (3) there is sufficient proof that a jury could find by a preponderance
      of the evidence that the defendant committed the acts.


(Citation and punctuation omitted.) Id; see Bradshaw v. State, 

296 Ga. 650

, 656 (3)

(769 SE2d 892) (2015). Because Rule 404 (b) is modeled on the Federal Rules of

Evidence 404 (b), we look to the decisions of the federal appellate courts for guidance

in construing and applying the Georgia rule. See 

Flowers, 307 Ga. at 622

, n.5 (2); see

also Strong v. State, __ Ga. __ , n.21 (3) (845 SE2d 653) (2020).

      We will affirm the trial court’s decision to admit other acts evidence absent a

clear abuse of discretion. See 

Flowers, 307 Ga. at 621

(2). And we note that for the

purpose of the admissibility analysis, the governing principles are the same whether

the conduct occurs before or after the offense charged. See U.S. v. Delgado, 

56 F.3d 1357

, 1365 (III) (B) (11th Cir. 1995).

      (a) With respect to the evidence that he shot his wife, Lofland does not

challenge its relevance or the sufficiency of the proof that he committed the act.

Rather, he argues that because aggravated assault is a general intent crime,6 the

probative value of the evidence was minimal and was substantially outweighed by its


      6
        See Booth v. State, 

301 Ga. 678

, 684 (3) (804 SE2d 104) (2017) (recognizing
that aggravated assault with a deadly weapon is a general intent crime).

                                          6
unduly prejudicial impact, such that it should have been excluded under the second

part of the Rule 404 (b) analysis.

      The second part of the Rule 404 (b) analysis is governed by OCGA § 24-4-403

(“Rule 403”), which provides that even relevant evidence may 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.” The rule is one of

inclusion, and the exclusion of evidence under its balancing test “is an extraordinary

remedy which should be used only sparingly.” (Citation and punctuation omitted.)

Olds v. State, 

299 Ga. 65

, 70 (2) (786 SE2d 633) (2016); see also Hood v. State, 

299 Ga. 95

, 103 (4) (786 SE2d 648) (2016) (“The major function of Rule 403 is to

exclude matter of scant or cumulative probative force, dragged in by the heels for the

sake of its prejudicial effect.”) (citation and punctuation omitted). The Rule 403

analysis requires the trial court to exercise its discretion and make “a common sense

assessment of all the circumstances surrounding the extrinsic act and the charged

offense.” (Citation and punctuation omitted.) Castillo-Velasquez v. State, 

305 Ga. 644

, 648 (2) (827 SE2d 257) (2019); see Kirby v. State, 

304 Ga. 472

, 481 (4) (a) (819

SE2d 468) (2018).

                                          7
       With respect to evidence offered to prove intent, the relevant circumstances to

be considered by the trial court when assessing its probative value include (1) the

prosecutorial need for the extrinsic evidence; (2) the overall similarity between the

extrinsic act and the charged offense; and (3) the temporal remoteness of the other

act. See 

Castillo-Velasquez, 305 Ga. at 648

(2).

       Lofland was charged with assaulting the victim, his wife, with a knife, a deadly

weapon. See OCGA § 16-5-21 (a) (2), (i). Thus, the State had the burden of proving,

beyond a reasonable doubt, that Lofland used a knife against the victim with the

intent either to violently injure her, or to commit an act that placed her in reasonable

apprehension of immediately receiving a violent injury.7 See OCGA § 16-5-20 (a) (1),

(2).

       As Lofland correctly asserts, the crime as charged was a general intent crime,

which undoubtedly lessened the State’s need for the other acts evidence. See Jones

v. State, 

301 Ga. 544

, 548 (2) (802 SE2d 234) (2017) (explaining that the probative

value of other acts evidence generally lessens when the crime charged is one of


       7
        The indictment did not specify by which method Lofland was alleged to have
committed the assault and the jury was charged on OCGA § 16-5-21 (a) in its
entirety, so the State was entitled to prove either. See Simpson v. State, 

277 Ga. 356

,
358 (3) (589 SE2d 90) (2003).

                                           8
general intent). Nevertheless, Lofland placed his intent at issue by pleading not guilty,

see State v. Jones, 

297 Ga. 156

, 161, n.4 (2) (773 SE2d 170) (2015), and at trial, he

denied threatening the victim and attempted to discredit her by asserting that she was

the aggressor in the relationship. We agree with the trial court that the shooting

evidence derived some probative value in showing that Lofland exhibited “aggressive

behavior involved in a domestic relationship” and “an intent to control . . . [and]

influence” the victim. See 

Olds, 299 Ga. at 75

(2) (noting that the probative value of

other acts evidence increases with “the tendency to make the existence of a fact more

or less probable,” and “the extent to which evidence tends to make the existence of

a fact more or less probable depends significantly on the quality of the evidence and

the strength of its logical connection to the fact for which it is offered”).

      As to the second consideration in the trial court’s analysis, the overall

similarity between the other acts evidence and the charged crime was quite

substantial. First and foremost, they both involved the same victim. See United States

v. Littlewind, 595 F3d 876, 881 (II) (8th Cir., 2010) (“[T]he relative probative value

of prior crime evidence is increased by the fact that both offenses were associated

with the same victim.”) (citation and punctuation omitted). Further, both events

occurred at their marital home, both seemed to have been prompted by Lofland’s

                                           9
jealousy and suspicion of the victim, both involved an alleged assault with a deadly

weapon, and both ceased upon the plea of the victim’s teenage daughter. Although

there were also dissimilarities8 – the use of a different weapon, the severity of the

alleged assault, the presence of a non-related third party – the similarities between the

two events were significant compared to the differences, thus increasing its probative

value. See Benning v. State, 

344 Ga. App. 397

, 402 (810 SE2d 310) (2018) (affirming

evidence of defendant’s prior sexual assaults under the Rule 403 analysis because,

“the manner of abuse was similar and these similarities make the other offenses

highly probative with regard to the defendant’s intent in the charged offenses.”).

      And finally, with respect to temporal proximity, the alleged shooting occurred

only four months after the charged crime, further increasing its probative value. See

Hood, ___ Ga. ___, at *6 (2) (Case No. S20A0725, decided Aug. 10, 2020)

(recognizing the high probative value of other acts evidence involving a similar crime

within months of the charged offense).




      8
        See Strong v. State, __ Ga. __ (4) (d) (1) (845 SE2d 653) (2020) (noting that
the Rule 404 (b) analysis requires consideration of both the similarities and the
dissimilarities between the other acts evidence and the charged crime).


                                           10
      In sum, although the nature of the charged offense lessened the need for the

other acts evidence, the other two factors weighed in favor of admitting the evidence.

Further, the prejudicial impact of the evidence was mitigated by the trial court’s

limiting instruction to the jury prior to the admission of the evidence, and again

during the jury charge after the close of the evidence. See 

Benning, 344 Ga. App. at 403

. Giving fair consideration to all three factors, although the other acts evidence

was undoubtedly prejudicial, we cannot say that its probative value was so

outweighed by the danger of unfair prejudice that the trial court abused its discretion

when admitting it. See Thompson v. State, ___ Ga. ___ (2) (Case No. S20A0245,

decided June 1, 2020) (holding the trial court did not err by admitting, in defendant’s

trial for felony murder of his wife predicated on aggravated assault, evidence of other

acts of violence by defendant against his wife, children, and stepchildren); Powell v.

State, 

332 Ga. App. 437

, 440-441 (2) (b) (773 SE2d 399) (2015) (holding the trial

court did not err by admitting, in defendant’s trial for threatening her daughter with

a knife, evidence that she had threatened the same victim with a knife on two prior

occasions); see also United States v. Berckmann, __ F3d __, II (B) (

2020 WL 4876752

) (9th Cir. 2020) (“Other acts of domestic violence involving the same victim

are textbook examples of evidence admissible under Rule 404 (b) . . . ); United States

                                          11
v. Miers, 

686 Fed. Appx. 838

, 841-842 (II) (11th Cir. 2017) (affirming the trial

court’s admission, in defendant’s trial for domestic violence of against girlfriend, of

his other acts of violence against his former wife and girlfriends). Compare Strong,

845 SE2d at 667 (holding the trial court erred by admitting numerous incidents of

other acts evidence because “[t]he fact that [a]ppellant may have committed violent

crimes against other people many years earlier had nothing to do with his reason for

stabbing the victims, and really has no purpose other than to show [a]ppellant’s

propensity toward violence”) (citation and punctuation omitted); Jackson v. State,

306 Ga. 69

, 77-81 (2) (b) (ii) (829 SE2d 142) (2019) (holding the trial court erred by

admitting, in defendant’s trial for aggravated assault with a deadly weapon, evidence

of a totally unrelated aggravated assault ten years prior when the State’s need for the

evidence was negligible and there were significant differences between the two

incidents).

      (b) Lofland further asserts that the trial court erred by admitting evidence that

he allegedly shot the victim’s male friend because the evidence was irrelevant and

failed to meet the first prong of the Rule 404 (b) analysis. We need not even consider

Lofland’s argument in light of our holding in Division (1) (a). Since evidence that

Lofland allegedly shot his wife was properly admitted, it is highly probable, even if

                                          12
we assume error, that additional evidence related to his alleged shooting of her male

friend did not contribute to the jury’s verdict and was, therefore, harmless. See Taylor

v. State, 

306 Ga. 277

, 283 (2) (830 SE2d 90) (2019) (“The test for determining

nonconstitutional harmless error is whether it is highly probable that the error did not

contribute to the verdict.”) (citation and punctuation omitted).

       2. Finally, Lofland argues that the trial court failed to specifically instruct the

jury that a spousal relationship was a material element of the crime of aggravated

assault (family violence). Lofland made no objection to the charge as given, so we

review it for plain error. See OCGA § 17-8-58 (b) (“Failure to object [to any portion

of the jury charge] shall preclude appellate review of such portion of the jury charge,

unless such portion of the jury charge constitutes plain error which affects substantial

rights of the parties.”).

       The trial court informed the jury that “[t]he grand jury has indicted [Lofland]

with the offense[ ] of family violence, aggravated assault, in Count 1 of the

indictment.” In addition, the court instructed the jury that “[n]o person shall be

convicted of any crime unless and until each element of the crime is proven beyond

a reasonable doubt.” The trial court defined the crime of aggravated assault; charged

the jury that its determination that the knife used constituted a deadly weapon was a

                                           13
material element to the crime; then immediately thereafter instructed the jury that, “I

will now charge you on family violence. A crime is committed under the Family

Violence Act when the alleged victim is the present spouse of the accused.”

      Georgia law requires that the jury charges, as given, “were correct statements

of the law and, as a whole, would not mislead a jury of ordinary intelligence.”

(Citation and punctuation omitted.) Sims v. State, 

296 Ga. App. 461

, 464 (3) (675

SE2d 241) (2009). The jury charges as given by the trial court met that requirement.

See OCGA § 16-5-21 (i) (defining aggravated assault (family violence) as the

“offense of aggravated assault . . . committed between past or present spouses . . .”).

Further, the fact that Lofland and the victim were married was never disputed, and

was testified to at trial by both parties. Thus, under no set of circumstances could

Lofland establish that the given charge affected the “substantial rights of the parties,”

as is required under the plain error analysis. See OCGA § 17-8-58 (b); see generally

Oates v. State, __ Ga. App. __ (4) (844 SE2d 239) (2020).

      Judgment affirmed. Dillard, P. J., and Brown, J., concur.




                                           14
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