Harrison v. State

FINAL COPY

               S20A1104. HARRISON v. THE STATE.


      LAGRUA, Justice.

      Kevin Harrison was tried by a Barrow County jury and

convicted of murder and other crimes in connection with the

shooting death of his wife, Heather Harrison. On appeal, Harrison

contends that the State failed to carry its burden to disprove that

the shooting was accidental and that the trial court erred in refusing

to give a requested jury instruction and in admitting certain other

acts evidence.1 Having identified no error, we affirm.



      1 The victim was killed on February 28, 2016. On May 3, 2016, a Barrow

County grand jury indicted Harrison, charging him with malice murder, felony
murder, aggravated assault (family violence), two counts of possession of a
firearm during the commission of a felony, and simple battery (family violence).
Harrison was tried before a jury in October 2017 and found guilty on all counts.
The trial court sentenced Harrison to life in prison without the possibility of
parole for the malice murder, a consecutive term of five years on one of the
firearm possession counts, and a concurrent twelve-month term for simple
battery. The other counts merged or were vacated by operation of law. Harrison
filed a timely motion for new trial on November 6, 2017, and the trial court
denied the motion in an order issued on June 27, 2019. Harrison timely
appealed, and this case was docketed to the August 2020 term of this Court
and thereafter submitted for a decision on the briefs.
     Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at trial showed as follows. Just after midnight

on February 28, 2016, Heather was shot in the head by Harrison in

the master bathroom of the couple’s Barrow County home. In the

months leading up to the shooting, Heather had confided in multiple

friends and family members that she was unhappy in her marriage;

that Harrison was jealous, possessive, and controlling; and that she

intended to move out of the couple’s home and seek a divorce. During

that time, Harrison, who was aware of Heather’s intentions,

contacted many of these same people to ask for advice on how to

prevent Heather from leaving him. These witnesses described

Harrison as being “broken-hearted” and “in a panic” about the

prospect of Heather’s leaving; one witness testified that Harrison

would call or text him for advice up to 30 times a day. Another

witness testified that Harrison believed Heather “was cheating on

him with every guy” with whom she interacted, including her own

brothers.

     Several witnesses testified that, on February 27, Heather

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planned to tell Harrison she was ending the relationship. Shortly

before midnight, Heather communicated by phone and text with

three of her close friends, reporting that she and Harrison were

fighting because she had told him she was moving out and that

Harrison had shoved her into a dresser and injured her back. One of

these friends, Jennifer Bandy, testified that, after their initial

conversation, in which Heather had said she was preparing to leave

the house, Heather called her back, sounding scared, and asked

Bandy to come get her because “Kevin is not going to let me leave.”

That call was placed at 12:02 a.m. Less than 20 minutes later, Bandy

arrived to find the couple’s house cordoned off by police tape and an

ambulance leaving for the hospital, where Heather ultimately died.

     First responders from the Barrow County Sheriff’s Office were

dispatched to the scene in response to a 911 call placed by Harrison

at 12:08 a.m. According to these officers, they arrived to find

Harrison calm and “nonchalant.” Harrison directed the officers

inside, where they found Heather on the floor of the master

bathroom, bleeding from a gunshot wound to the head. On the bath

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mat was a shell casing; in the bathroom wall was a single bullet hole;

and on the dresser in the master bedroom was a holstered firearm

with its hammer cocked. Investigators later found a packed

overnight bag in the master bedroom.

     Harrison told officers at the scene that he had accidentally shot

Heather during an argument. He first stated that he had been

“trying to take his gun off” after coming inside when the gun

accidentally discharged, firing at an upward angle. He then gave a

lengthier account, which was recorded, in which he claimed that the

gun, which he was wearing in a holster on his hip, “popped” out

when he walked into the door frame and, in his attempt to catch it,

he accidentally pulled the trigger. At the request of investigators,

Harrison attempted to reenact what had happened, but he was

never able to make the gun fall out of the holster as he claimed it

had, nor was he able to replicate his pulling of the trigger without

first readjusting his grip on the gun. After being transported to the

sheriff’s office, Harrison gave another recorded interview, in which,

after investigators told him that his story was not consistent with

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the evidence, Harrison stated that he had been angry because he

believed Heather had been unfaithful and that “pure evil” had come

over him; that he had brandished the gun only to scare her, believing

it was not loaded; and that he had pulled the trigger “as a reaction.”

In a recorded phone call with his mother from jail, Harrison

repeated his claim that he did not believe the gun was loaded and

had pointed the gun at Heather only to scare her.

     A GBI firearms examiner testified that, based on his testing

and examination, the gun with which Heather was shot was not

defective and would not have discharged accidentally through

mishandling or being dropped. The medical examiner testified that

the fatal bullet had entered Heather’s forehead and traveled

through the back of her head at a slightly downward angle.

     Several    witnesses    testified   about   domestic    violence

perpetrated by Harrison against Heather during their marriage,

including one incident in which Harrison grabbed Heather by the

throat, pushed her against a wall, and began choking her, and

another in which Harrison, in a fit of rage, yanked the car steering

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wheel while Heather was driving, causing their car to veer off the

road. One of Heather’s sisters testified that, when discussing her

desire to divorce Harrison, Heather expressed concern about her

ability to leave without her children being harmed “or getting hurt

herself.” Another of Heather’s sisters testified that Heather had

grown afraid of Harrison and had said she wanted another person

with her when she ended their relationship. Heather’s grandmother

testified that Heather told her Harrison had threatened to kill her

if she left him.

     Harrison’s cell phone records reflected a several-minutes-long

phone call placed at 11:48 p.m. on February 27 from Harrison’s

phone to a recipient designated in Harrison’s phone contacts as

“Rigo,” whom investigators ultimately identified as Rigoberto

Salcido, a former co-worker of Harrison. Salcido testified that

Harrison had called him late in the evening on February 27 to

inquire about traveling to Mexico.

     Finally, the State presented testimony from Harrison’s ex-wife,

Andrea Horne, about several incidents of domestic violence

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committed by Harrison during their marriage and eventual

separation in 2006 and 2007. In the first incident, after he became

aggressive and Horne was about to retreat to her mother’s home,

Harrison angrily “slung” Horne into a dresser, so forcefully that the

dresser broke through the wall. In a second incident, during their

separation, Harrison called Horne and threatened that she was

“going to die” if she did not come back home. In a third incident,

during a custody exchange in a restaurant parking lot, Harrison

emerged from his car in a rage, screamed at Horne about “screwing”

other men, called her “trash” and a “whore,” spat on her, hit her in

the face with a backpack, and hit her multiple times in the stomach.

In the fourth and final incident, Harrison appeared with a gun

outside Horne’s home, and, while speaking to her through a window

with the gun pointed at her, Harrison told her “to come outside and

play with him, that this [was] the day that [she] was going to die.”

Horne testified that Harrison was “jealous[ ] . . . because he

[thought] I was having an affair.”

     1. Harrison contends that the trial court erred in denying his

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motion for directed verdict because the State failed to satisfy its

burden to disprove that Heather’s shooting was accidental. We

review the denial of a motion for directed verdict under the same

standard as that under which we determine the sufficiency of the

evidence. See Moore v. State, 

 (1) n.4 (

) (2019). Here, the evidence authorized the jury to find a history

of domestic violence by Harrison against Heather and a clear motive

for Harrison, who was jealous and upset at the prospect of Heather’s

leaving him, to commit further violence against her. Harrison’s

credibility regarding the shooting was significantly undermined by

his shifting accounts of the incident and his inability to successfully

replicate the sequence of events that he claimed culminated in the

gun’s accidental discharge.     Additionally, the testimony of the

firearms examiner refuted Harrison’s claim of an accidental

discharge; likewise, the medical examiner’s testimony undermined

Harrison’s claim that the gun had fired upward. Furthermore, the

evidence of Harrison’s prior acts against Horne substantiated the

finding that the shooting of Heather was an intentional act

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motivated by anger and jealousy. Finally, the evidence that

Harrison called Salcido mere minutes before the shooting to ask

about traveling to Mexico was highly probative of not only intent but

also premeditation. Viewed in its totality, this evidence was

sufficient to enable the jury, as the exclusive arbiter of evidentiary

conflicts and witness credibility, see Walker v. State, 

 (1) (

) (2014), to find that the shooting was

intentional rather than accidental, and to conclude beyond a

reasonable doubt that Harrison was guilty of all of the crimes of

which he was convicted. See Jackson v. Virginia, 

(III) (B) (

, 61 LE2d 560) (1979). See also Hopwood v.

State, 

 (1) (

) (2019) (evidence was

sufficient to authorize jury to disbelieve defendant’s claim that

shooting was an accident).

     2. Harrison next contends that the trial court erred in refusing

to give his requested jury instruction explaining that felony murder

is not a lesser included offense of malice murder. Harrison contends

that the absence of such an instruction rendered the jury charge

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confusing by failing to make clear that malice murder and felony

murder are equally serious crimes that carry the same range of

penalties.2

     For a requested jury instruction to be warranted, it must be

“legal, apt, and precisely adjusted to some principle involved in the

case.” Barron v. State, 

 (2) (

) (2015)

(citation and punctuation omitted). While it may be legally accurate

to state that felony murder is not a lesser included offense of malice

murder, see OCGA § 16-1-6, the court’s instructions here did not in

any way indicate otherwise. In any event, even to the extent the jury

may have believed that felony murder was a lesser crime with a

lesser punishment, the court clearly — and properly — instructed

the jury that punishment was not to be considered in its

deliberations. See Bellamy v. State, 

 (4) (

) (2000) (it is improper to instruct jury on sentencing before it




     2   The transcript from the charge conference reflects that Harrison’s
counsel harbored concern, based on her experience from a previous case, that
the jury might settle on felony murder as what it believed was a compromise
verdict.
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has determined guilt or innocence). Finally, given that the jury

found Harrison guilty of both offenses and thus clearly did not

render a compromise verdict, any possible error in failing to give the

requested instruction was harmless. See McClain v. State, 

 (2) (

) (2018) (“a jury-instruction error is harmless

when it is highly probable that (the error) did not contribute to the

verdict”) (citation and punctuation omitted).

     3. In his final enumeration, Harrison contends that the trial

court erred in permitting the State to introduce evidence of

Harrison’s prior acts against Horne. 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. 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. . .
     .

In order to be admissible under Rule 404 (b), evidence of an accused’s

other acts must be (1) relevant to some issue other than character;

(2) admissible under OCGA § 24-4-403, in that its probative value is

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not substantially outweighed by the danger of unfair prejudice; and

(3) sufficient to permit the jury to conclude by a preponderance of

the evidence that the accused actually committed the other act. See

Olds v. State, 

 (2) (

) (2016). A trial

court’s decision to admit evidence under Rule 404 (b) will be

disturbed only if it constitutes a clear abuse of discretion. See

Bradshaw v. State, 

 (3) (

) (2015).

     Here, the trial court expressly admitted Horne’s other acts

testimony for the purpose of establishing Harrison’s intent and

motive as to the shooting. Because Harrison “entered a plea of not

guilty, [he] made intent a material issue, and the State may prove

intent by qualifying Rule 404 (b) evidence absent affirmative steps

by the defendant to remove intent as an issue.” Hood v. State, 

 (2) (

) (2020) (citation and punctuation

omitted). Moreover, because Harrison claimed the shooting was

accidental, his intent was particularly salient in the case.

     “[T]he relevance of other acts evidence . . . is established when

the prior act was committed with the same state of mind as the

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charged crime.” Naples v. State, 

 (2) (

)

(2020). Here, Horne testified about acts constituting assault and

battery. Because Harrison was charged with, among other things,

aggravated assault and battery, the evidence of Harrison’s previous

acts of assault and battery was relevant to his intent to commit those

crimes. See 

 (where appellant was charged with felony murder

predicated on first-degree child cruelty, his prior acts of child abuse

were relevant to prove intent). And Harrison’s commission of prior

acts of intentional violence or threats thereof was relevant in

showing that the shooting of Heather was done intentionally rather

than by accident. The first prong of the Rule 404 (b) test has, thus,

been satisfied.3

      In evaluating the second prong, we examine both the probative

value and the prejudicial effect of the other acts evidence. See Olds,

. “Probative value . . . depends on the marginal worth




      3 Having concluded that this evidence was relevant to intent, and
because Harrison does not challenge the trial court’s jury instructions as to the
admission of this evidence, we need not examine whether the evidence was also
relevant to motive. See Hood, 

 n.8.
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of the evidence — how much it adds, in other words, to the other

proof available to establish the fact for which it is offered.” 

 at 75-

76 (2). In assessing the probative value of other acts evidence in

proving intent, we consider the acts’ overall similarity to the charged

crimes, their temporal remoteness, and the prosecutorial need for it.

Hood, 

.

     Here, Harrison admits that the prior acts were similar to the

charged crimes, as both sets of acts involved threats and violence

against a romantic partner — including the shoving of the victim

into a dresser and the use of a gun — apparently motivated by

jealousy and anger. While the prior acts occurred some nine to ten

years earlier and were thus somewhat remote in time from the

charged crimes, the prosecutorial need for the evidence was high.

See McKinney v. State, 

 (3) (

)

(2019) (other acts evidence properly admitted despite 15-year lapse

between prior acts and charged crimes where prosecutorial need was

high). Harrison claimed the shooting was an accident, and there

was no direct evidence, aside from Harrison’s own account, of how

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the shooting transpired. Evidence that Harrison had a history of

committing jealousy-fueled violent acts against a romantic partner

thus had significant probative value in establishing that his conduct

here was intentional and not accidental. See McWilliams v. State,

 (3) (

) (2018) (affirming admission

of evidence of appellant’s past abusive conduct against a romantic

partner where appellant claimed victim’s death was accidental).

While it is true that there was also forensic evidence undercutting

Harrison’s claim that the shooting was accidental and evidence that

Harrison was upset at, and had made threats because of, Heather’s

intent to end their relationship, this evidence did not render the

other acts testimony unnecessary to the State in shouldering the

burden to prove Harrison’s intent and disprove his accident defense.

     With regard     to   prejudice,   we   note that “it   is only

when unfair prejudice substantially outweighs probative value that

[Rule 404 (b)] permits exclusion.” Anglin v. State, 

(3) (

) (2017) (citation and punctuation omitted;

emphasis in original). Given the high probative value of the evidence

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in proving Harrison’s intent and rebutting his claim that the

shooting was accidental, we discern no abuse of discretion in the

trial court’s ruling that the prejudice inherent in the other acts

evidence did not substantially outweigh its probative value. See

McKinney, 

 (no abuse of discretion in trial court’s

conclusion that prejudice did not substantially outweigh the

significant probative value of appellant’s prior assault). This is

particularly true given that the trial court instructed the jury, both

prior to Horne’s testimony and at the close of the evidence, that this

evidence was to be considered only for the limited purposes for which

it was admitted. See 

 (prejudicial effect of other acts evidence was

mitigated by court’s limiting instructions); McWilliams, 

 (same).

     Finally, as to the third prong of the Rule 404 (b) test, there is

little doubt that Horne’s testimony sufficed to establish by a

preponderance of the evidence that Harrison did in fact commit the

acts about which Horne testified. Accordingly, we conclude that

there was no clear abuse of discretion in the trial court’s admission

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of the other acts evidence. This enumeration, like those addressed

above, affords no basis for relief, and we therefore affirm.

     Judgment affirmed. All the Justices concur.




                      DECIDED MARCH 1, 2021.
     Murder. Barrow Superior Court. Before Judge Primm.
     Kathleen J. Anderson, for appellant.
     James B. Smith, District Attorney, Patricia J. Brooks, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Kathleen L. McCanless, Assistant
Attorney General, for appellee.




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