☢ test - Í

(November 22, 2005). Accord, Gonzalez v. State , 277 Ga.App. 362, 626 S.E.2d 569 (January 25, 2006); Kimble v. State , - 285 Ga.App. 420, 646 S.E.2d 511 (May 17, 2007); Cornell v. State , 289 Ga.App. 52, 656 S.E.2d 191 (December 19, 2007); Moore v. State , 301 Ga.App. 220, 687 S.E.2d 259 (November 20, 2009); Johnson v. State , 302 Ga.App. 318, 690 S.E.2d 683 (February 11, 2010); Snider v. State , 304 Ga.App. 64, 695 S.E.2d 383 (May 12, 2010). THIS LINE OF CASES OVERRULED BY Whitehead (June 1, 2010), above . Buice v. State, 239 Ga.App. 52, 520 S.E.2d 258 (June 29, 1999), affirmed on other grounds, 272 Ga. 323, 528 S.E.2d 788 (May 1, 2000). Where similar transaction evidence was admitted “without first conducting a hearing in accordance with Uniform Superior Court Rule (USCR) 31.3, … this Court has held that failure to object under these circumstances does not constitute waiver. Riddle v. State, 208 Ga.App. 8, 10-11(1)(b), 430 S.E.2d 153 (1993).” 18. PREJUDICIAL EFFECT Saffold v. State, S15A1375, ___ Ga. ___, ___ S.E.2d ___, 2016 WL 1085241 (March 21, 2016). Malice murder and related convictions affirmed. Under pre-2013 Evidence Code, no prejudice in admitting evidence of prior killing by defendant that trial court later concluded wasn’t sufficiently similar. State originally propounded that both shootings were drug related, but failed to show that as to the earlier killing, which was reduced to involuntary manslaughter. Even assuming it was erroneously admitted however, the error was harmless, both because of overwhelming evidence of guilt here and because “the overall lack of similarity between the 2002 incident and the crimes charged in this case as proved at trial … limited its prejudicial impact.” Brannon v. State, S15A1724, ___ Ga. ___, ___ S.E.2d ___, 2016 WL 867555 (March 7, 2016). Malice murder and related convictions affirmed; trial court properly admitted other acts evidence. “Here, both crimes, which occurred 13 days apart in neighboring counties, involved the same two defendants stealing a car with distinctive tire rims after shooting the vehicle’s owner. In each case, appellant used one of his mother’s cars to drive Rounsoville to the scene of the crime, waited while Rounsoville shot the car’s owner and took the vehicle, and then followed Rounsoville as he drove the stolen car from the scene. We find that the modus operandi for each carjacking was sufficiently similar to mark the offenses as appellant’s handiwork.” “As evidence of the Monroe County crimes was necessary to counter appellant’s testimony at trial and the defenses on which he relied, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice to appellant.” Jones v. State, 335 Ga.App. 563, 782 S.E.2d 466 (February 3, 2016). On remand from Supreme Court. In DUI prosecution, trial court properly found that other acts evidence was not substantially more prejudicial than probative under new OCGA § 24-4-403. “The trial court noted that: (1) the circumstances surrounding the prior conviction were similar to the circumstances involving the charged offenses and, likewise, involved a charge for DUI (less safe); and (2) the charged offenses allegedly occurred five to six years after the extrinsic offense, when Jones would have had ‘[k]nowledge of the fact that he was less safe because he was [less safe] before.’ Moreover, the record demonstrates the state’s need to introduce the prior conviction evidence because, as the Supreme Court explained, ‘[a] genuine issue regarding whether Jones was voluntarily driving while under the influence of alcohol was raised by [his] defense,’ [ State v. Jones , 297 Ga. 156, 161(2), 773 S.E.2d 170 (2015) (‘ Jones II ’)], and the prior conviction evidence ‘had a tendency to make the existence of his general intent to drive under the influence more probable and would authorize a jury to logically infer that Jones was voluntarily driving while under the influence,’ Id. at 163(2) (citation omitted). Given these circumstances, we cannot say that the trial court abused its discretion in finding that the probative value of evidence of Jones’s prior conviction was not substantially outweighed by its prejudicial effect. See generally [ United States v. Perez, 443 F.3d 772, 779-780(II) (11 th Cir., 2006)] (by his theory of defense, the defendant made his knowledge and intent a focal point of the case, plainly making the evidence of his prior conviction admissible for non- propensity purposes; the district court did not abuse its discretion when it determined the probative value of the defendant’s prior conviction, which involved a similar act as the charged offenses and took place less than two years before the instant offense, outweighed its prejudicial effect); Watford v. State, 332 Ga.App. 499, 505, 773 S.E.2d 452 (2015).” “The Eleventh Circuit has held that under Rule 403, the federal counterpart of OCGA § 24–4–403, the determination of whether the probative value of extrinsic acts evidence outweighs its prejudicial effect ‘lies within the discretion of the [trial] court and calls for a common sense assessment of all the circumstances surrounding the extrinsic [act], including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.’ United States v. Perez, 443 F.3d 772, 780(II) (11 th Cir., 2006) (citation and punctuation omitted). See Bradshaw v. State, 296 Ga. 650, 657–658(3), 769 S.E.2d 892 (2015). Furthermore, the Eleventh Circuit has determined that application of Rule 403 ‘is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence.’ United States v. Merrill, 513 F.3d 1293, 1301(II)(B)