Moon v. State

FINAL COPY


                S21A0454. MOON v. THE STATE.


     ELLINGTON, Justice.

     A Chatham County jury found Walter Terry Moon, Jr., guilty

of murder and other offenses in connection with the shooting deaths

of Emily Pickels and Michael Biancosino. Moon challenges the

sufficiency of the evidence, and he contends, among other things,

that the trial court erred by denying his motions to suppress

evidence and to sever a count of the indictment, by admitting

evidence that he committed a prior crime, and by removing a holdout

juror during deliberation without sufficient cause. We agree that the

trial court abused its discretion in removing the holdout juror, and

because the error is presumed harmful, we reverse Moon’s

convictions, address those issues likely to recur upon retrial, and

remand for a new trial.1


     1 On January 22, 2014, a Chatham County grand jury returned an 18-
      Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at trial showed as follows. On September 1,

2012, Michael Biancosino drove Emily Pickels home in his white

Buick Riviera. At about 3:30 a.m., he stopped the car about 100 feet



count indictment against Moon. He was charged with malice murder (Counts
1 and 2); felony murder predicated on aggravated assault (Counts 3 and 4);
felony murder predicated on possession of a firearm by a convicted felon
(Counts 5 and 6); possession of a firearm during the commission of a crime
(Counts 7, 8, 11, and 12); aggravated assault (Counts 9 and 10); possession of
marijuana with intent to distribute (Count 13); possession of a firearm by a
convicted felon during the commission of a crime (Counts 14 and 15);
possession of a firearm by a convicted felon (Counts 16 and 17); and attempt to
obtain a firearm by a convicted felon (Count 18). The State indicted Moon as a
recidivist, listing six prior convictions. At a jury trial beginning on June 2,
2016, Moon was found guilty on all counts, except Count 13, which was nolle
prossed. On August 17, 2016, Moon was sentenced as a recidivist to consecutive
terms of life without parole for malice murder (Counts 1 and 2); 15 years in
prison for possession of a firearm by a convicted felon during the commission
of a crime (Count 14), to run consecutively to Count 1; 15 years in prison for
possession of a firearm by a convicted felon during the commission of a crime
(Count 15), to run consecutively to Count 2; five years in prison for each
conviction for possession of a firearm by a convicted felon (Counts 16 and 17)
and the attempt to obtain a firearm by a convicted felon (Count 18), to run
consecutively to Count 15 and each other. The felony murder charges (Counts
3 through 6) were vacated by operation of law, and the remaining charges
(Counts 7 through 12) merged. Moon filed a motion for new trial on August 16,
2016, through trial counsel. After new counsel entered an appearance, Moon
twice amended his motion for a new trial, adding claims that his trial counsel
was ineffective. Following hearings on the motion for a new trial in June and
September 2018, the trial court denied the motion on August 6, 2020. Moon
filed a notice of appeal on September 4, 2020, and the case was docketed to the
term of this Court beginning in December 2020. Oral argument was heard on
April 22, 2021.

                                      2
from Pickels’s apartment in Frazier Homes in Chatham County.

Before Pickels could get out, a masked gunman crept up to the car

and opened fire with an SKS or AK-47-type rifle. The gunman

walked around the Buick, firing into it repeatedly. As Biancosino

tried to drive away, the gunman kept firing. Biancosino’s Buick

rolled to a stop after it crashed through a brick wall. The gunman

ran back to a waiting car and got in the passenger side. The car then

sped away. Biancosino and Pickels died as a result of multiple

wounds    caused    by   high-velocity   rounds.   After   a   lengthy

investigation, the police determined that the gunman was Sidney

Grant.2 Grant and his accomplice, appellant Walter Moon, had been

out that night looking for Ron Allen with the intention of killing him.

Allen, who frequented the area where the crimes occurred, owned a

car that was almost identical to the one occupied by Pickels and

Biancosino.

     Based on witness testimony and surveillance video from the



     2 Grant was not indicted in connection with the shooting deaths of
Biancosino and Pickels because he was shot to death on March 16, 2013.
                                  3
area where the shooting occurred, the police determined that the

gunman had been driven to and from the scene of the shooting in a

silver 2012 Chevrolet Sonic. Surveillance video showed the Sonic

following the Buick to the apartment complex and the gunman

emerging from the passenger side of the Sonic. Information about

the car led the police to Kiawana Williams, who was then living with

Grant. The police learned that Williams was driving cars rented for

her by her mother. On August 31, 2012, Williams started driving the

Sonic because the silver Dodge Caliber that she had been driving

had developed brake trouble. Williams testified that she often

loaned her rental cars to Grant and Moon while she was at work.

She also purchased pre-paid phones for the men. Williams said that,

just hours before the shooting, she loaned the Sonic to Grant and

Moon, and that Moon was driving. Another witness also testified

that he had seen Moon and Grant in the car together on the night of

the shooting, and that Moon was driving.

     A few days after the shooting, the police searched the Sonic

and Williams’s home. They found a camouflage mask in the car.

                                 4
Saliva found inside the mask tested positive for Grant’s DNA. The

police found Moon’s fingerprints on the exterior of the car and on a

soda can in the car’s console. The police also found receipts in the

car indicating that Grant had the car’s windows tinted before the

shooting and the windshield repaired shortly after the shooting. One

witness testified to seeing a “finger-sized” hole in the glass. Another

witness identified Grant as the person who had the windshield

repaired.

     The police also executed a search warrant on Moon’s home.

They recovered pre-paid cell phones from Moon’s bedroom. In a

locked shed on the property, the police found high-velocity rounds

like those used to kill the victims, a bullet-proof vest, and two loaded

rifles capable of firing the high-velocity rounds. Forensics experts

determined that neither weapon, however, had fired the bullets that

killed the victims. Based on information from Williams and other

witnesses, the police determined that the phones had been used by

Grant and Moon. The police determined that one of the phones had

connected to a cell tower three blocks from the scene of the shooting

                                   5
around the time of the shooting. The phones also showed frequent

text activity between Moon and Grant before and after the shooting,

but not during the shooting.

     After Moon was arrested, Tarus Green, an acquaintance of

Moon’s who was also in jail on unrelated charges, told a detective

that Moon said that he and Grant had committed the crimes using

a “chopper,” which is slang for a semi-automatic rifle. According to

Green, Moon was the driver, Grant was the shooter, and the two

disposed of the rifle after the shooting. Another witness testified

that, shortly after the shooting, Moon had negotiated with her to buy

an AK-47 rifle. Text messages of their communications were

introduced in evidence.

     Several reluctant witnesses testified about Grant and Moon’s

long friendship and Grant’s animosity toward Allen. A witness

testified that Grant was “out to get” Allen based on a belief that

Allen had disrespected the memory of Grant’s murdered brother,

Michael. Allen was a close friend of Michael’s when Michael was

killed. Grant believed that Allen should have avenged Michael’s

                                 6
murder and that his failure to do so was an insult. Allen often visited

a store near where the shooting occurred and was known to drive a

white Buick Riviera that looked like the one driven by Biancosino.

A few days before the shooting, a witness saw Moon and Grant

standing beside a silver Dodge Caliber parked near an apartment

complex that Allen was known to frequent. A few days after the

shooting, Allen sold his car.

     The State also introduced evidence of Moon’s prior felony

convictions for aggravated assault. In 2005, Moon had fired an AK-

47 into a car where three men were sitting. Moon’s accomplice drove

him to the scene of the shooting in a car that the accomplice’s aunt

had rented. Moon shot the men (all of whom survived their grievous

injuries) because he was angry with them for implicating him in the

theft of pit bull puppies.

     1. Moon contends that the evidence, which he describes as

“circumstantial at best,” was insufficient to prove his guilt beyond a

reasonable doubt and did not exclude every reasonable hypothesis

save that of his guilt. Specifically, Moon argues that the evidence

                                  7
was insufficient to show that he participated in the murders or that

he possessed or attempted to possess any firearms. We disagree.

     The legal principles applicable to our review of this claim of

error are well established.

     When we consider the sufficiency of the evidence as a
     matter of federal due process, our review is limited to
     whether the trial evidence, when viewed in the light most
     favorable to the verdicts, is sufficient to authorize a
     rational trier of fact to find the defendant guilty beyond a
     reasonable doubt of the crimes of which he was convicted.
     Under this review, we must put aside any questions about
     conflicting evidence, the credibility of witnesses, or the
     weight of the evidence, leaving the resolution of such
     things to the discretion of the trier of fact. In addition, as
     a matter of Georgia statutory law, “to warrant a
     conviction on circumstantial evidence, the proved facts
     shall not only be consistent with the hypothesis of guilt,
     but shall exclude every other reasonable hypothesis save
     that of the guilt of the accused.” OCGA § 24-14-6. Whether
     alternative hypotheses are reasonable, however, is
     usually a question for the jury, and this Court will not
     disturb the jury’s finding unless it is insufficient as a
     matter of law.

(Citations and punctuation omitted.) Frazier v. State, 

 (2) (a) (

) (2020). Further, “[e]very person

concerned in the commission of a crime is a party thereto and may

be charged with and convicted of commission of the crime.” OCGA §

                                   8
16-2-20 (a).

     To convict Moon of malice murder and possession of a firearm

by a convicted felon during the commission of a crime, the State was

not required to prove that Moon personally fired the shots that killed

Pickels and Biancosino, only that he was a party to the crimes,

which, in this case, meant that he intentionally aided or abetted in

the commission of the crimes or intentionally advised, encouraged,

or counseled Grant to commit the crimes. See OCGA § 16-2-20 (b)

(3), (4); Bryant v. State, 

 (1) (

) (2015)

(“A person who does not directly commit a crime may be convicted

upon proof that a crime was committed and that person was a party

to it.” (citation and punctuation omitted)). “While mere presence at

the scene of a crime is not sufficient evidence to convict one of being

a party to a crime, criminal intent may be inferred from presence,

companionship, and conduct before, during and after the offense.”

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

, 315-

316 (1) (a) (

) (2018). See also Broxton v. State, 

 (4) (

) (2019).

                                  9
     The evidence presented at trial supported the jury’s rational

finding, beyond a reasonable doubt, that Moon, a convicted felon,

was a party to Grant’s act of murdering Pickels and Biancosino by

repeatedly shooting them with a rifle. Moon told Green that he and

Grant had committed the crimes, that he drove Grant to and from

the scene of the shooting, and that the two had disposed of the

murder weapon. Witnesses saw Moon and Grant together in

Williams’s Sonic before the shooting, and forensic evidence indicated

that both Grant and Moon had been in the car. The jury could also

infer from text messages exchanged between cell phones used by

Moon and Grant that they were together when the shooting

occurred. Moreover, cell phone location data placed one of the cell

phones in close proximity to the scene of the shooting near the time

that the shooting occurred. The police later found two loaded rifles,

high velocity rounds, and a bullet-proof vest in a locked shed at

Moon’s home. Although neither Moon nor Grant knew the victims,

witnesses testified that Grant wanted to kill Allen, who drove a

Buick that looked like Biancosino’s Buick. Moon and Grant, who

                                 10
were close friends, were seen a few days before the shooting near

Allen’s apartment complex, standing beside one of Williams’s rental

cars. Allen also sold his Buick shortly after the shooting, from which

the jury could infer that Allen believed that Grant and Moon —

neither of whom had yet been arrested — were still looking for him.

Finally, the jury could infer from the evidence of Moon’s prior crime

of firing an AK-47 into a car of people that Moon shared Grant’s

criminal intent.

      Viewed as a whole, this evidence was sufficient to support

Moon’s convictions both as a matter of due process and under OCGA

§ 24-14-6 for murder, possession of a firearm by a convicted felon

during the commission of a crime, and possession of a firearm by a

convicted felon.3 See Frazier, 

 (2) (a). However, as


      3  Moon was convicted of four counts of possession of a firearm by a
convicted felon. Two of these, Counts 14 and 15, were charged pursuant to
OCGA § 16-11-133 for Moon’s possession of a firearm by a convicted felon
during the murders of Pickels and Biancosino. The other two, Counts 16 and
17, were charged pursuant to OCGA § 16-11-131 for Moon’s possession of two
rifles found in a locked shed at his residence. Although we find the evidence
presented at trial sufficient to support these convictions, OCGA § 16-11-131 (b)
permits only one conviction for the simultaneous possession of multiple
firearms. See Coates v. State, 

 (

) (2018).

                                      11
Moon contends, the State failed to prove venue as to Count 18, which

charged Moon with attempting to purchase an AK-47 rifle five days

after the murders. In support of this charged crime, the State

presented the testimony of one witness, as well as evidence of text

messages exchanged between the witness and Moon. The witness

did not testify that either she or Moon were in Chatham County

during their negotiations concerning the gun. And there is nothing

in the witness’s testimony or the text messages from which the jury

could infer that she or Moon were in Chatham County. Because the

State failed to prove venue, Moon’s conviction for this offense must

be reversed. However, he may be retried for this offense.4



Because we are reversing these convictions, we do not need to address the
merger error.
       4 The Georgia Constitution requires that venue in all criminal cases must

be laid in the county in which the crime was allegedly committed. See Ga.
Const. of 1983, Art. VI, Sec. II, Par. VI. See also OCGA § 17-2-2. Although
venue must be proved beyond a reasonable doubt at trial, “venue is not an
element of the offense and does not prove or disprove the defendant’s guilt.
Reversal due to improper venue is not a resolution of some or all of the
elements of the offense charged.” (Citations and punctuation omitted.) Grier v.
State, 

 (1) (

) (2002). Thus, the grant of a new
trial as to Count 18 is not a reversal due to insufficient evidence that would
preclude a retrial. See 

 See also OCGA § 16-1-8 (d) (1) (“A prosecution is not
barred . . . if . . . [t]he former prosecution was before a court which lacked

                                       12
     2. Moon contends that the trial court erred in removing a lone

holdout juror during deliberations without conducting a sufficient

inquiry and without having a good or legal cause to do so. For the

reasons that follow, we agree.

     OCGA § 15-12-172 provides in pertinent part:

           If at any time, whether before or after final
     submission of the case to the jury, a juror dies, becomes
     ill, upon other good cause shown to the court is found to
     be unable to perform his duty, or is discharged for other
     legal cause, the first alternate juror shall take the place
     of the first juror becoming incapacitated. . . .

As this Court has explained:

     The question of whether to remove a juror is a matter
     committed to the trial court’s discretion, even after jury
     deliberations have begun. However, there must be some
     sound basis upon which the trial judge exercises his
     discretion to remove the juror. A sound basis may be one
     which serves the legally relevant purpose of preserving
     public respect for the integrity of the judicial process.
     Where the basis for the juror’s incapacity is not certain or
     obvious, some hearing or inquiry into the situation is
     appropriate to the proper exercise of judicial discretion.
     Dismissal of a juror without any factual support or for a
     legally irrelevant reason is prejudicial. Both the need for
     investigation and the possibility of harmful error are
     heightened when a jury has begun deliberations or when

jurisdiction over the accused or the crime[.]”). It follows that the State is
authorized to retry Moon for this offense in the proper venue.
                                     13
     a jury is deadlocked.

(Citations and punctuation omitted.) Mills v. State, 

(2) (

) (2020). See also Hill v. State, 

 (8)

(

) (1993) (A trial court has an obligation to investigate

the need to excuse an allegedly incapacitated juror, and this is

“especially true where the jury has begun its deliberations and the

juror has participated in those deliberations.” (citation and

punctuation omitted)). Further, because removing a dissenting juror

when the jury is deadlocked risks violating a defendant’s right to a

unanimous verdict, a trial judge must exercise the utmost care in

determining that good cause exists before removing the juror. See

Ramos v. Louisiana, __ U. S. __ (

, 206 LE2d 583)

(2020) (The Sixth Amendment right to a jury trial requires a

unanimous verdict to convict a defendant of a “serious offense” in

state court as well as federal court.); United States v. Brown, 

 (III) (A) (11th Cir. 2021) (“[T]o remove a juror

because he is unpersuaded by the Government’s case is to deny the

defendant his right to a unanimous verdict.” (citation and

                                 14
punctuation omitted)).

     (a) The record. The jury began its deliberations at 6:00 p.m. on

June 13, 2016, and the jurors deliberated for about 50 minutes

before being sent home for the evening. The jury returned the

following morning at 8:00. Shortly thereafter, the trial court excused

a juror who had vacation plans and replaced that juror with an

alternate. At 8:38 a.m., the judge instructed the jury to start its

deliberations anew.

     At 10:05 a.m., Juror No. 4, the foreperson, sent a note to the

judge asking to see two items of evidence: the video-recorded police

interview with Moon and a transcript of Green’s April 13, 2013

statement to the police. The judge informed the jury that there was

no transcript of Green’s statement and that Moon’s interview was

an hour and a half long. If the jurors wanted to review Moon’s

interview, they would be required to watch all of it. The judge told

the jury to return to the jury room, to consider whether they wanted

to watch all of the interview, and to let her know if they did. At 10:15

a.m., the jury continued its deliberations. The jury did not renew its

                                  15
request to see Moon’s interview. While the jury deliberated, the

judge considered letting the remaining alternate juror go home.

      At 11:28 a.m., the foreperson sent the judge another note. The

note stated:

      [O]n counts 16, 17, and 18 the jury has made a unanimous
      decision. [O]n counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14,
      and 15 the jury does not have a unanimous decision.
      There is some adamant opinion that is not in agreement
      with the other jurors.

The judge discussed the note with counsel, and concluded that it

was too early for an Allen charge.5 The judge then told the jury:

      [Your note] tells me that you have a unanimous verdict as
      to certain counts and that you do not have a unanimous
      decision as to other counts. So as to the ones that you have
      a unanimous verdict, that’s fine. . . . As to the counts,
      though, for which you have not reached a unanimous

      5 An Allen charge typically informs the jury that a unanimous verdict is

required, and instructs the jury, among other things, that “[w]hile this verdict
must be the conclusion of each juror and not a mere acquiescence of the jurors
in order to reach an agreement, it is nevertheless necessary for all of the jurors
to examine the issues and questions submitted to them with candor and
fairness and with a proper regard for and deference to the opinion of each
other.” See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §
1.70.70 Jury (Hung) (updated January 2021). See also Allen v. United States,

 (

, 41 LE 528) (1896); Romine v. State, 

 (

) (1986) (noting that it is “‘somewhat imprecise to refer
to a single Allen charge,’” as more than a century of judicial interpretation has
“‘produced a variety of permutations and amplifications of the original
wording’” (citation omitted)).
                                       16
     verdict, my instruction to you is that you’re going to need
     to go back in there and continue your deliberations.

The jury returned to the jury room at 11:35 a.m., and the judge sent

them to lunch at 11:50 a.m. The jury resumed deliberations at 1:20

p.m. Then, at 2:45 p.m., another juror, Juror No. 11, sent the judge

a note stating: “I need to speak to you in private.” The judge had the

jury cease its deliberations and asked Juror No. 11 to come into the

courtroom. When the judge asked the juror if he had something to

tell her, he responded:

     Well, we just have a situation in there. We’ve all come to
     an agreement, but [there is] one person that in my mind
     is just being just – they know – we’ve all talked to her.
     And they know what we’re saying. But they’re just being
     difficult. Or not difficult, just stubborn.

Juror No. 11 did not identify the “one person” by name or juror

number, but he indicated that she was female and suggested that

she was the lone holdout juror. He complained that the juror was

“not making any sense,” and was “refusing to look at the facts as

each one of us has pointed out.” When the judge asked if the alleged

holdout juror was refusing to deliberate, Juror No. 11 responded


                                 17
that she had been participating in deliberations until about “30

minutes ago.” After that, she had formed an opinion about the

verdict. At 2:52 p.m., the judge sent Juror No. 11 back to the jury

room and had the jury continue its deliberations.

     While the jury was out, the prosecutor argued that the alleged

holdout juror should be removed for cause for refusing to engage in

deliberations based on the evidence. Defense counsel objected,

arguing that the jury had been deliberating “for hours and hours,”

that he had seen no evidence of misconduct, and that the juror was

following her oath. After hearing from counsel, the judge called for

a brief recess to research their arguments. At 3:25 p.m., the

foreperson sent another note to the judge. This note read:

     [A]ll jurors have expressed their decision and reasons
     therefor concerning certain counts. However, there is not
     a unanimous agreement as to these certain counts. Since
     the majority of jurors have been unable to change the
     mind of the minority, what can be done at this point?

Although this note did not refer to a single holdout juror, the

prosecutor moved to excuse the alleged holdout juror, arguing that

the juror was not willing to deliberate. Defense counsel responded

                                 18
that “11 of them have come to a conclusion contrary to the one. What

we have here is a juror following their oath.” Defense counsel argued

that the complaining jurors were frustrated because they did not

have a unanimous verdict on all counts. Defense counsel then moved

for a mistrial. The judge announced that she needed to do some fact-

finding to determine if the juror was a holdout or if she was refusing

to deliberate. Defense counsel again objected, arguing that there

“has been not even a hint or allegation of juror misconduct. This

juror, whoever he or she is, has in fact deliberated. And they have

reached verdicts.” Defense counsel renewed his motion for a

mistrial, but the trial court did not rule on it.

     The judge had the foreperson return to the courtroom so she

could inquire further about his note. The foreperson told the judge

that the jury had reached a unanimous verdict on three counts of

the indictment. On a slip of paper, he wrote that their vote was “11

and 1” as to the remaining counts. The foreperson also informed the

judge that their votes had “basically been that way since the

beginning.” The foreperson returned to the jury room at 3:43 p.m.,

                                   19
and, thereafter, the judge heard arguments from counsel. The

prosecutor argued that the alleged holdout juror should be

questioned, and if she was refusing to deliberate, removed; defense

counsel objected to that juror being “browbeaten” into changing her

mind. He argued that it was clear that the jurors had all reached a

decision on their verdicts, just not a fully unanimous one. Defense

counsel renewed his motion for a mistrial, which the judge again did

not address.

     At 4:07 p.m., the trial court called the foreperson back to the

courtroom and had him identify the alleged holdout juror. He

identified her as Juror No. 7. The foreperson then told the judge that

Juror No. 7 was, in fact, participating in deliberations, but that

“she’s just not agreeing with the facts as we see the facts.” The

foreperson then volunteered that Juror No. 7 had mentioned that

she had “been to 15 funerals of friends who were killed already this

year,” and opined that the juror’s “feelings” may have been affecting

her decision-making. After the foreperson returned to the jury room,

the judge announced that she had decided to interview Juror No. 7.

                                 20
Defense counsel objected and argued for a mistrial, explaining:

     There’s no indication that she’s refused to discharge her
     duty. There’s no reason. But now she’s been identified.
     And now we know that it’s a black juror. And now there
     is going to be a redoubled effort to remove [Juror No. 7]
     and replace her with the last alternate and further
     change the composition of this jury. There is no reason to
     bring her out here and begin inquiring into why she feels
     the way she does.

     The judge had Juror No. 7 brought into the courtroom. The

judge asked her if she could “attempt to reach a verdict on the

evidence in this case” and the juror nodded her head affirmatively

and then, when prompted by the judge to speak, responded “[Y]es

ma’am.” The following exchange then occurred:

     COURT: But I need for you to tell me. All right. If you are
     instructed to do so, can you go in and deliberate? In other
     words, would you go back in and deliberate with your
     fellow jurors?
     JUROR: No, ma’am.
     COURT: Okay. Do you understand what I mean when I’m
     saying deliberate?
     JUROR: Uh-huh (affirmative response).
     COURT: What do I mean?
     JUROR: Discuss it.
     COURT: To discuss it. Okay. All right. So are you willing
     to participate with the other jurors and have a discussion
     with the other jurors? And I just need a yes or a no.
     JUROR: Yes.

                                 21
     COURT: You are. Okay. So if deliberating means to
     discuss it, if you’re instructed to do so, will you go back in
     and deliberate with your fellow jurors? Yes or no. There’s
     no right or wrong. I just need to know the answer to it.
     JUROR: Yes.
     COURT: Yes, you are. Okay. All right. So to go through
     the questions again, can you attempt to reach a verdict on
     the evidence? Yes or no.
     JUROR: Yes.
     COURT: If you’re instructed to go in and deliberate,
     would you do so?
     JUROR: Yes.
     COURT: And are you willing to participate with the other
     jurors?
     JUROR: Yes.
     COURT: Okay. All right. Thank you very much. You can
     step in.

     At 4:17, the jury resumed its deliberations. The prosecutor

again argued that Juror No. 7 should be excused. The prosecutor

urged the judge to consider the juror’s equivocation and demeanor,

and asserted that “this juror was laughing during the jury charge.”

The prosecutor further asserted: “when [Juror No. 7] first came out,

in addition to smiling, she refused to verbally answer this Court’s

questions until instructed to do so. I think all of these behaviors and

all of the other evidence in the record at this point, there is sufficient



                                   22
cause to remove her[.]”6 Defense counsel again objected, stating that

he had seen nothing unusual about Juror No. 7’s behavior.

Moreover, although it was clear that the juror had agreed to

deliberate, he argued, it was also clear that the entire jury had

already reached a decision on each count of the indictment, but that

the verdict was not unanimous on a number of counts. The judge did

not rule on counsels’ arguments.

      At 5:28 p.m., the foreperson sent another note to the judge,

stating:

      [O]ne juror is continuing to not agree with the other jurors
      about 14 counts. . . . All other jurors have used facts and
      circumstances to make their decision. One juror has
      indicated that her decision will not change to agree with
      other jurors. This juror is adamant about her decision.
      Therefore a unanimous decision is not possible at this
      time.

The prosecutor again moved to excuse Juror No. 7, and defense

counsel objected and argued: “The juror has deliberated. . . . I ask




      6 The record does not reflect    that Juror No. 7 refused to answer the
judge’s questions; rather, it indicates that she responded nonverbally at first,
by nodding her head. When the judge asked her to respond with a “yes” or “no,”
the juror complied.
                                      23
the Court to go ahead and take a verdict on the three counts and

grant a mistrial as to the remaining counts.” The judge denied

defense counsel’s motion for a mistrial and decided to call Juror No.

7 back to the courtroom for further inquiry.        Defense counsel

objected to what he believed was the prosecutor’s “systemic attempt

to remove a juror.”

     When Juror No. 7 returned to the courtroom, the judge asked

the following:

     COURT: And what I’m trying to find out for me is have
     you been able to actually deliberate. In other words, are
     you going through the evidence with your fellow jurors, or
     are you not able to? Are you able to, or are you not able
     to?
     JUROR: Yes, I am.
     COURT: You are able to. Okay. All right. In that case then
     I’m not going to ask anything more than that.

After this exchange, the judge sent the jury home for the evening.

The judge informed counsel that she was considering giving the jury

an Allen charge when the jury returned the following morning.

     At 9:24 a.m. on the second day of deliberations, after the jurors

had been deliberating for about 20 minutes, another juror, Juror No.


                                 24
12, sent the judge a note. This note stated:

           I need to express to you several concerns that I have
     about one of the jurors.
           First, she told the jurors yesterday that she has had
     15 friends murdered during the past several years. She
     also relayed the information to us that her sister’s
     boyfriend was shot right after taking her sister home. She
     was upset that her sister had been questioned about the
     shooting.
           Second, she told us that she knows about all the
     “talking” that goes on in the jail because she has been
     there. She said she was put in jail for violating her parole.
     (We asked no further questions.)
           She also admitted that she did not share any of this
     information during the selection process when asked
     about being a party to or being aware of murders close to
     your family.
           In addition, she has been consistently late, almost
     every day. She would just sit in the jury room during the
     trial and listen to television shows on her phone.
           I am concerned that she is mentally unstable and
     not able to look at this trial with unbiased feelings
     because of her life situations.

After reading the note, the judge asked counsel for their thoughts.

The prosecutor argued that Juror No. 7 should be excused based on

the allegations in Juror No. 12’s note, as well as on the ground that

Juror No. 7 was refusing to deliberate. She contended that Juror No.

7 had withheld vital information during the selection process.


                                  25
Defense counsel disagreed, arguing that the prosecution had run a

background check on each juror and there was no evidence that

Juror No. 7 had a felony conviction. Further, he believed that it was

Juror No. 12 who seemed “wound up,” and he posited that she and

the other jurors were ganging up on Juror No. 7 because she did not

agree with them.

     The judge decided to question Juror No. 12 and then speak

again with the foreperson. The judge asked Juror No. 12 only one

question, and that was whether she could identify the juror about

whom she had complained. Juror No. 12 also identified the alleged

holdout as Juror No. 7 and then returned to the jury room. The judge

had the foreperson return to the courtroom. The judge read Juror

No. 12’s note to the foreperson and asked him whether the note was

a “fair explanation” of what was happening in the jury room. The

foreperson responded that it was a “very true statement[.]” After the

foreperson returned to the jury room, the judge entertained

arguments from counsel.

     The prosecutor argued that Juror No. 7 should be replaced

                                 26
based on evidence that she was not impartial, lacked candor, was

not participating in deliberations, and had behaved improperly.

Defense counsel responded that Juror No. 7 had deliberated and had

reached a decision. In fact, all of the jurors had reached decisions,

but they were not unanimous; the jury was deadlocked. He argued

that the three jurors who had complained about Juror No. 7 did so

only after they all had reached decisions on each count of the

indictment. Further, defense counsel asserted that the prosecutor

had determined that the juror did not have a felony conviction.

     After hearing from counsel, the judge stated that she had

noticed that Juror No. 7 had laughed and smiled inappropriately at

times during the trial and was also consistently the last juror to

return to the jury box. The judge then announced that she would

excuse Juror No. 7, explaining:

     [W]e have the comments regarding [Juror No. 7’s] friends
     that have been murdered over the last few years, her
     equivocation yesterday as to whether she would — could
     deliberate or not. She, you know — again it wasn’t enough
     at that point. But I think when I add it with all the other
     facts and her apparent failure to disclose the situation
     with her sister’s boyfriend, all of those factors together

                                  27
     come together. And so I am going to excuse this juror.
     Again, I am doing so — I would also point out that she has
     apparently from our timeline of what’s been happening
     here — because this has been going on since really just a
     few hours into deliberations. So this is not a situation
     where we’ve had a group of people that have been
     deliberating for two days and have, you know, reached
     decisions and now are just arguing over it. This is
     something that started rearing its head very[,] very early
     on in the process. And so based on all – for all of those
     reasons I am going to excuse this juror.

The judge added that her decision was also based on Juror No. 7’s

countenance and demeanor, and not just the words she spoke. The

judge, however, did not elaborate on what the juror’s countenance

and demeanor appeared to be or what she had inferred from it.

Defense counsel objected, arguing again that the jury had reached a

decision and that the judge was refusing to accept that decision.

Thereafter, the judge excused Juror No. 7 without any further

inquiry, replaced her with an alternate, and instructed the jury to

begin its deliberations anew. Defense counsel again moved for a

mistrial, arguing that the judge should have given Juror No. 7 an

opportunity to defend herself. Counsel’s motion was “noted for the

record.” About an hour and a half later, the jury indicated that it

                                28
had a verdict. Before the verdict was read aloud, defense counsel

told the judge the following:

     [E]verything these jurors said this morning that were
     attributed to [Juror No. 7,] [the juror] says are false. She
     says the other jurors refused to deliberate, wouldn’t look
     at the evidence. [They said] she was on crack. Accused her
     of knowing Walter Moon and trying to cover for him and
     many other things that were not true.

The judge noted defense counsel’s statement for the record and then

read the jury’s verdict of guilty as to each count of the indictment.

     In its order denying Moon’s motion for a new trial, the trial

court stated that it excused Juror No. 7 for these reasons:

     Taking into consideration the concerns of the foreperson
     and [the other two jurors] regarding [Juror No. 7’s] ability
     to deliberate fairly and impartially, [the juror’s] own
     equivocation regarding whether she would be able to
     participate in deliberations if instructed to do so, [the
     juror’s] demeanor and countenance throughout the trial,
     her failure to disclose the situation with her sister’s
     boyfriend during jury selection, and the fact that [the
     juror’s] opinion was seemingly fixed after only few hours
     of deliberations, the Court exercised its discretion under
     [OCGA §] 15-12-172 to discharge [the juror] and replace
     her with an alternate[.]

     (b) Analysis. In this case, the State urged the trial court to

remove Juror No. 7 after the jury had begun its deliberations and

                                  29
after it was deadlocked; therefore, the trial court had a heightened

responsibility to perform a thorough investigation into the

circumstances surrounding the juror’s decision-making to avoid the

possibility of harmful error. See Mills, 

 (2); Hill, 

 (8). As we have explained “alternate jurors generally

should not serve to substitute for minority jurors who cannot agree

with the majority, as taking such a minority position does not by

itself render a juror incapacitated or legally unfit to serve, and

making such a substitution may constitute an abuse of discretion.”

Wallace v. State, 

 (2) (

) (2018). Further,

removing a dissenting juror when the jury is deadlocked could

implicate the defendant’s right to a unanimous verdict. See Brown,

 (III) (A). The trial court appeared to be aware of its

responsibility and made some inquiry. For the following reasons,

however, that inquiry fell short and resulted in dismissing Juror No.

7 on a basis that was not legally sound. See Mills, 

-

562 (2) (The trial court’s limited inquiry into a juror’s possible

incapacity fell short of providing a sound basis for her removal.).

                                  30
      First, the record does not support the trial court’s conclusion

that only Juror No. 7 had formed an opinion that was seemingly

fixed after only a few hours of deliberations.7 Rather, the statements

from the foreperson and Juror No. 11 indicated that all of the jurors

had reached decisions within a few hours of beginning their

deliberations and were deadlocked. After the jury returned from

lunch on the first day of trial, Juror No. 11 informed the court that



      7 Because a juror’s verdict must be based on the evidence in the case, a

trial court may excuse for cause a prospective juror who has formed a fixed
opinion as to the defendant’s guilt or innocence prior to hearing any evidence
in a case. See Miller v. State, 

 (5) (

) (2002). But,
once a juror has heard the evidence, the arguments of counsel, and the court’s
instructions on the law, there is no requirement that the juror spend any
particular length of time deliberating before forming an opinion as to the
defendant’s guilt or innocence. Rather, the length of time a deadlocked jury has
been deliberating is a factor the trial court may consider when deciding
whether to give an Allen charge or to declare a mistrial. See, e.g., Romine, 

 (1) (c) (“Considering the length and complexity of the trial, the
length of time the jury deliberated before declaring itself deadlocked, and the
amount of progress made in the interim, we find no abuse of discretion in the
court’s refusal to declare a mistrial.”). In fact, in giving an Allen charge, the
trial court must be careful to explain that, although the jurors should consider
the opinions of other jurors during deliberations, they must never surrender
their honest opinions for the sake of expediency. See Sears v. State, 

 (1) (

) (1999) (An Allen charge should not “put
pressure” on the jurors to reach a particular verdict, “exhort the minority to
reexamine its views in deference to the majority,” or to “suggest that the
majority’s position is correct.” Nor should it urge the jurors “to abandon an
honest conviction for reasons other than those based upon the trial [evidence]
or the arguments of other jurors.” (citations and punctuation omitted)).
                                       31
“[w]e’ve all come to an agreement,” but that one juror was being

“stubborn.” Moreover, the foreperson informed the court that Juror

No. 7 had made up her mind after the jurors returned from lunch,

indicating that she had deliberated for about as long as the other

jurors had before they also made up their minds. Indeed, the

foreperson explained at one point that the votes had “basically been

that way [11 to 1] since the beginning.”

     Further, both the foreperson and Juror No. 11 informed the

judge that Juror No. 7 had, in fact, participated in deliberations, but

that she was not persuaded by the other jurors’ arguments as to

several of the counts. The foreperson explained that “she’s just not

agreeing with the facts as we see the facts.” Additionally, the record

shows that Juror No. 7’s responses to the judge’s questions about

her ability to deliberate were not equivocal. The record shows that,

on one occasion when the judge asked Juror No. 7 whether she could

deliberate with the other jurors, she said: “No, ma’am.” But the

judge then rephrased her question, and the juror responded

affirmatively, indicating that she could and would participate in

                                  32
deliberations. The judge asked the question six more times, and each

time got an affirmative response. The judge did not indicate at this

point that she found the juror’s sole “no” response to be evidence of

equivocation; rather, given that the judge returned the juror to the

jury room to continue deliberations, it appears the judge accepted as

credible the juror’s many “yes” answers.

     Finally, although Juror No. 12 complained that Juror No. 7

watched television shows on her phone in the jury room while on

breaks from the trial of the case, she did not say that Juror No. 7

was watching those shows during deliberations. The record also does

not show that Juror No. 7 missed or delayed deliberations due to her

alleged tardiness. The record before us does not support excusing

Juror No. 7 on the ground that she had failed to meaningfully

participate in deliberations. Rather, the record shows that the juror

had deliberated, but that she reached a different conclusion based

on her perception of the evidence. See, e.g., Mills, 

 (2)

(“[N]othing in the jury’s notes shows that [the holdout juror] had

refused or ceased to participate in the jury’s deliberations; rather, it

                                  33
can be reasonably inferred from the jury’s communications that [the

juror] had reached a decision different from that of the other jurors”

based upon her view of the evidence.); Delgado v. State, 

, 630 (

) (2020) (The trial court abused its discretion

in dismissing a holdout juror after deliberations had begun; the

holdout juror’s refusal to change his opinion did not provide good

cause for dismissal because he had participated in deliberations for

several hours before making up his mind; the juror testified that he

had attempted to deliberate with the other jurors, but the

deliberations were no longer productive; and the juror’s differing

opinion was based on the juror’s belief as to the credibility of a

witness.); Mason v. State, 

 (1) (

) (2000) (The trial court abused its discretion in dismissing a

holdout juror; the juror’s statements that she did not want to

deliberate further and would not change her vote did not amount to

a refusal to deliberate, considering that she and the other jurors had

already deliberated for more than two days and the juror’s

statements were made after the court had given an Allen charge.).

                                 34
Compare Bethea v. State, 

 (

)

(2016) (The trial court did not abuse its discretion in dismissing a

juror who formed an unwavering opinion before fully vetting the

evidence, was visibly upset, did not want to talk to the other jurors,

equivocated about her ability to participate in deliberations, and

adamantly “wanted out” of the process.).

     The record also fails to support dismissing Juror No. 7 on the

ground of juror misconduct. There is nothing in the record indicating

that the judge commented on Juror No. 7’s alleged tardiness at any

point during the trial. Also, when the prosecutor first argued that

Juror No. 7 should be dismissed for laughing and smiling at

inappropriate times during trial, and defense counsel countered that

he had seen no such behavior, the judge took no action at that time.

The judge did not ask the juror about this alleged conduct and made

no findings about whether the conduct in fact had happened. Indeed,

it was only after the trial court decided to remove Juror No. 7 that

she cited the juror’s alleged behavior as a rationale for removing her

from the jury. Further, the trial transcript does not reflect that the

                                 35
judge had concerns about Juror No. 7’s behavior, countenance, or

demeanor during trial or after deliberations had begun. In fact, the

judge had contemplated sending the remaining alternate juror

home, which suggests that she was not anticipating any problems

with Juror No. 7 at that time.

     However, Juror No. 12 made other allegations about Juror No.

7 that were affirmed by the foreperson. Juror No. 12 claimed that

Juror No. 7 stated the following during deliberations: (1) she “had

15 friends murdered during the past several years”; (2) her “sister’s

boyfriend was shot right after taking her sister home” and she was

upset that “her sister had been questioned about the shooting”; (3)

“she knows about all the ‘talking’ that goes on in the jail because she

has been there. She said she was put in jail for violating her parole”;

and (4) “she did not share any of this information during the

selection process when asked about being a party to or being aware

of murders close to your family.”

     If the record showed that Juror No. 7 had, in fact, lied or

purposefully withheld material information during voir dire, the

                                    36
juror’s lack of candor could provide a sound legal basis for excusing

her. See, e.g., Murray v. State, 

 (4) (

)

(2003) (A sound legal basis is one that “serve[s] the legally relevant

purpose of preserving public respect for the integrity of the judicial

process.” (citation and punctuation omitted)); Green v. State, 

 (1) (

) (2009) (The trial court had a sound

legal basis for dismissing a deliberating juror when, after

questioning the juror, the court determined that a clear question

concerning the juror’s truthfulness in responding to a material voir

dire question existed.); Wooten v. State, 

 (3)

(

) (2001) (The trial court properly dismissed a

deliberating juror when, after questioning          him, the court

determined that the juror had lied about knowing the defendant);

McGuire v. State, 

 (3) (

) (1991)

(The trial court properly dismissed a deliberating juror when, after

questioning each individual juror about the matter, the court

concluded that the juror inspected the crime scene in violation of the

court’s instructions and had discussed his observations with the

                                 37
other jurors.).

     However, the record before us does not reveal an adequate

basis for inferring that Juror No. 7 lied or purposefully withheld

material information in response to voir dire questions. There is no

evidence in the record that Juror No. 7 had been convicted of a felony

or was on parole. To the contrary, the record indicates that the

prosecutor had conducted criminal background checks on the jurors

and informed the judge during voir dire when a juror failed to

disclose his or her criminal record, and that Juror No. 7 was not one

of them. Additionally, the judge did not ask Juror No. 7 whether she

had made the statements recounted in the third juror’s note;

whether the statements, if made, were actually true; and, if the

statements were true, whether the juror had lied about or

purposefully withheld information that either the court or counsel

had specifically asked her to disclose.8


     8  Neither the judge nor the prosecutor identified which voir dire
questions would have called for the disclosure of the information Juror No. 7
allegedly withheld. We have reviewed the transcript of voir dire, however, and
determined that the jurors were not specifically asked whether any of their

                                     38
     Instead, in reaching the decision to excuse Juror No. 7, the

judge relied on the hearsay statements of two jurors. The judge

asked the foreperson, whether he agreed with the allegations in

Juror No. 12’s note. While the judge’s questioning of the foreperson

may have bolstered Juror No. 12’s credibility, it did not resolve

whether Juror No. 7 had actually lied or purposefully withheld

material information during voir dire. Given that the judge did not

witness Juror No. 7 making these statements, it was incumbent

upon her to inquire further to develop an objective basis for

understanding what had transpired in the jury room, for assessing

the credibility of Juror No. 7 as well as the complaining jurors, and

for determining whether Juror No. 7’s statements revealed




close friends or family members had witnessed or been the victims of a violent
crime. Although the prosecutor told the jurors that she planned to ask such a
question, she never actually posed it. And, although the prosecutor did ask,
generally, whether the jurors or any of their family members or close friends
had been arrested or charged with a crime, the question may have confused
the jurors given that the prosecutor gave a lengthy preamble to the question
in which she talked about a juror’s life experiences, including whether they
had experienced crime or were familiar with the location of the crimes or knew
the people involved in the case. Indeed, Juror No. 12 informed the judge after
jury selection that she had been confused about the prosecutor’s question and
had failed to disclose that her husband had been convicted of a crime.
                                     39
dishonesty or a lack of candor that would have served as a legal basis

for dismissing her. Given that this inquiry was not made, the trial

court’s basis for dismissing Juror No. 7 was unsound. See Mills, 

 (2) (The trial court’s limited inquiry into a juror’s

possible incapacity fell short of providing a sound basis for her

removal.); State v. Baker, 

, 726-730 (1) (

) (2019) (The trial court did not abuse its discretion in granting

defendant’s motion for a new trial based on its determination that it

erred in failing to question a juror about her alleged sleeping and

alleged failure to deliberate before dismissing her.); Dunn v. State,

 (1) (a) (

) (2011) (“[I]n the absence

of any questioning of the juror on the record, the judge’s assertion

that the juror ‘may have missed crucial parts of the evidence’ due to

sleeping the previous day lacks any evidentiary support and, thus,

appears to be mere speculation on his part.”); Semega v. State, 

 (1) (

) (2010) (Given that the jury

was deadlocked, the trial court should not have relied solely on the

foreperson’s assertion that a juror was refusing to participate, but

                                 40
should have conducted further inquiry before replacing the juror

with an alternate.).

     Because the judge’s limited inquiry into Juror No. 7’s alleged

incapacity and misconduct fell short of providing a sound basis for

the juror’s removal, we conclude that the judge abused her discretion

in removing Juror No. 7. Because such an error is prejudicial, Moon’s

convictions must be reversed. See Mills, 

 (2)

(“Dismissal of a juror without any factual support or for a legally

irrelevant reason is prejudicial.” (citation        and punctuation

omitted)).

     3. Moon raises several other enumerations of error. We will

address the claims that appear likely to recur if the State chooses to

retry this case. Moon contends that the trial court erred in admitting

pursuant to OCGA § 24-4-404 (b) (“Rule 404 (b)”) evidence relating

to a 2005 incident that resulted in his convictions for three counts of

aggravated assault. He argues that the evidence was not admissible

under Rule 404 (b) for the purpose of proving intent, motive, or

identity.    He also argues that the evidence should have been

                                  41
excluded under OCGA § 24-4-403 (“Rule 403”) because it presented

a danger of unfair prejudice that substantially outweighed its

probative value. Finally, he argues that the trial court should have

excluded highly inflammatory photographic evidence of the prior

crimes.

      (a) Rule 404 (b). Under 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[,]” but

such other-acts evidence may be admissible for other purposes,

including to prove intent, motive, and identity. The party offering

evidence under Rule 404 (b) must show three things:

     (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.

(Citation omitted.) Strong v. State, 

 (2) (a) (

) (2020). As to the first required showing, “relevant evidence” is

defined as that evidence which has “any tendency to make the


                                  42
existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” OCGA § 24-4-401. “This is a binary question —

evidence is either relevant or it is not.” Strong, 

 (2)

(a). Rule 403, which governs the second required showing, provides

that “[r]elevant 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.” Rule 403 “is designed 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.) Strong,

 (2) (a). “The third part of the test is a preliminary

question of fact for the trial court. Other-acts evidence may be

admitted if the court concludes that the evidence is sufficient for the

jury to find by a preponderance of the evidence that the other act

was committed.” (Citation and punctuation omitted.) 

 “We review

the trial court’s ruling admitting evidence under Rule 404 (b) for

                                  43
abuse of discretion.” 

     (b) The trial court’s admission of the other-acts evidence under

Rule 404 (b). At a pretrial hearing, the State asked the trial court to

admit under Rule 404 (b) evidence that on July 10, 2005, Moon

assaulted three people by shooting them repeatedly with an AK-47

rifle. Moon, who was indicted for these crimes along with co-

defendant Jabril Whitehead, pleaded guilty to three counts of

aggravated assault on November 26, 2007.9 The State argued that

evidence of the prior aggravated assaults was relevant and

admissible for the purposes of proving, among other things, Moon’s

intent, motive, and identity. Over Moon’s objection, the trial court,

after hearing the State’s proffer of the expected evidence and the

arguments of counsel, entered an order allowing the evidence to be

admitted pursuant to Rule 404 (b) “for the purposes of proving

intent, motive, and identity.”

     At trial, the State presented the testimony of two of the three


     9 Although the record does not contain a copy of Whitehead’s conviction,

it appears from the transcript of Moon’s guilty plea that Whitehead also
pleaded guilty to these crimes.
                                    44
shooting victims and the detective who investigated the shooting.

Through these witnesses, the State established that, during the

afternoon of July 10, 2005, Moon and Whitehead followed the

victims in a rental car and waited until they parked in a Chatham

County neighborhood. As Whitehead stopped the car near the

victims, Moon got out of the passenger side and used an AK-47 rifle

to repeatedly shoot Jerrell Williams and two other men as they sat

in the parked car. The victims of the shooting survived. They

identified Moon as the shooter and Whitehead as the man who drove

Moon to and from the scene of the shooting. The car used in the

shooting had been rented by Whitehead’s aunt. According to the

detective and one witness, Moon shot at Williams and the others in

the car because Moon believed that Williams had accused him of

stealing some pit bull puppies. In addition to this testimony, the

State tendered photographic evidence of the 2005 crimes. The 33

photographs admitted depicted pictures of the crime scene, the

damage to the car, the numerous shell casings surrounding the car,

and the victims’ wounds. The State also tendered the certified copy

                                45
of Moon’s convictions. Prior to the admission of the Rule 404 (b)

evidence (and again in the final charge), the trial court instructed

the jury that the evidence was being offered for the limited purposes

of proving identity, motive, and intent, and that the jury was not

authorized to infer from the evidence that the defendant is of a

character that would commit such crimes.

     (c) The 2005 crimes were relevant under Rule 404 (b) for the

purpose of proving intent, but not motive or identity. Moon does not

contend that his prior conviction should have been excluded on the

ground that the State’s pretrial proffer was insufficient for the trial

court to conclude that a reasonable jury could find by a

preponderance of the evidence that Moon had committed the acts of

aggravated assault. Therefore, we consider whether the evidence

was relevant under Rule 404 (b) and, if so, whether it should have

been excluded under Rule 403.

     (i) Intent. “[T]he relevance of other[-]acts evidence offered to

show intent is established when the [other] act was committed with

the same state of mind as [a] charged crime.” Naples v. State, 308

                                  

 (2) (e) (

) (2020). See also Olds v. State, 

 (1) (

) (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.” (citation omitted)). In this case, Moon was charged with

several crimes, including aggravated assault and felony murder

predicated on aggravated assault by shooting Biancosino and

Pickels with an SKS or AK-47 rifle. To prove that Moon was a party

to the aggravated assaults, the State had to prove that Moon shared

in Grant’s intent either to violently injure Biancosino and Pickels

(whom he mistook for Allen) or to commit an act that placed the

victims in reasonable apprehension of immediately receiving a

violent injury.10 The State also had to show that Moon intentionally

aided or abetted the commission of Grant’s crimes; or that he

intentionally advised, encouraged, or counseled Grant to commit the




     10 See OCGA §§ 16-5-20 (a); 16-5-21 (a) (2). See also Jackson v. State, 

 (2) (b) (ii) (

) (2019) (“[A]ssault with the aggravating
factor of use of a deadly weapon is a general intent crime.” (citation,
punctuation and footnote omitted)).
                                      47
crimes. See OCGA § 16-2-20 (b) (3), (4); see also Downey v. State,

 (1) (

) (2016) (“[A] conviction as a party

to a crime requires proof that the defendant shared a common

criminal intent with the principal perpetrator of the crime.” (citation

and punctuation omitted)). The evidence of Moon’s 2005 aggravated

assaults showed that he had the intent to violently injure Williams

and the other passengers in the car by firing an AK-47 rifle

repeatedly at them. Moon pleaded guilty to those offenses, and

witnesses testified to his actions. Because Moon pleaded not guilty

to the charged felony murder and aggravated assault offenses, the

evidence of his prior aggravated assault convictions was relevant to

the issue of his intent and, thus, satisfied the relevancy requirement

of Rule 404 (b). See Strong, 

 (2) (d) (1); Olds, 

 (1).

     (ii) Motive. To properly show motive, “the extrinsic evidence

must be logically relevant and necessary to prove something other

than the accused’s propensity to commit the crime charged.”

(Citation and punctuation omitted.) Strong, 

 (2) (d)

                                  48
(2). The State argued that the evidence of Moon’s other violent acts

was relevant to show that he “believed it acceptable to engage in gun

violence to solve disputes.” This “is a classic improper propensity

argument, focusing on [Moon’s] violent . . . character and identifying

his motive to act in far too generic a fashion.” (Citation and

punctuation omitted.) 

 The use of Moon’s involvement in the 2005

shootings as motive evidence is especially problematic because the

person alleged to have had the motive to kill Allen, the intended

victim, was not Moon but Grant. Accordingly, the trial court abused

its discretion by admitting the other-acts evidence to show Moon’s

motive. See 

     (iii) Identity. When evidence is offered pursuant to Rule 404 (b)

to prove identity, it 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

                                 49
     to ensure that the government 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.

(Citations and punctuation omitted.) Brooks v. State, 

 (2) (

) (2016). See also McKinney v. State, 

 (3) (b) (

) (2019) (same). Additionally, a trial

court must “consider the dissimilarities as well as similarities in

determining whether other acts evidence is admissible to show

identity.” Brooks, 

 (2).

     Although the 2005 aggravated assaults and the charged crimes

have many similarities, the investigating detective testified that the

use of rental cars and high-powered rifles in shootings to settle

personal vendettas was not uncommon in Chatham County. The

crimes also had some notable dissimilarities. The 2005 assaults

happened during the day, while the charged crimes happened at

night; unlike the 2005 assaults, the charged offenses occurred with

some stealth (the shooter wore a mask and crept up on the victims);


                                 50
and, most significantly, unlike the 2005 offenses, Moon was not the

shooter in the charged offenses and Grant was not involved in the

2005 incident. Given that this type of crime was not unique to Moon

and because the two crimes, though similar, were not sufficiently

uncommon so as to constitute a signature crime, the prior crimes

were not admissible under Rule 404 (b) to prove identity. See Brooks,

 (2) (Because “the modus operandi for each murder

was relatively commonplace — [they] were not signature crimes.”);

Amey v. State, 

 (1) (a) (

) (2015)

(prior armed robbery of a woman alone at night after she parked her

car not in the nature of a signature crime so as to be proof of the

perpetrator’s identity). Accordingly, the trial court also abused its

discretion by admitting the other-acts evidence to show Moon’s

identity.

     (d) The 2005 crimes were admissible under Rule 403 to prove

intent. Although the 2005 aggravated assault evidence was relevant

to show intent, in determining whether the evidence nevertheless

should have been excluded under Rule 403, the trial court was

                                 51
required to consider factors including the overall similarity of the

other acts to the charged crimes, the temporal remoteness of the

other acts, and the prosecutorial need for the other-acts evidence.

See Jackson v. State, 

 (2) (b) (ii) (

) (2019).

See also Kirby v. State, 

 (4) (a) (

) (2018)

(When other-act evidence is presented to show intent, Rule 403

requires a case-by-case, “common sense assessment of all the

circumstances surrounding the extrinsic act and the charged

offense.” (citation and punctuation omitted)). Applying this analysis,

the record shows that the trial court did not abuse its discretion in

admitting the 2005 aggravated assaults because they had

significant probative value in demonstrating that Moon shared

Grant’s criminal intent to seriously injure or kill his intended victim.

     Although the probative value of the prior aggravated assaults

was diminished somewhat because they occurred seven years before

the charged crimes, they were not so remote as to be lacking in

evidentiary value. The record shows that Moon was sentenced to

serve two years of a ten-year sentence, the balance probated, after

                                  52
pleading guilty in 2007, and that he was on probation when the

charged crimes were committed in 2012.11 See Kirby, 

(4) (a) (i) (Explaining that, despite an 11-year gap between the prior

and charged acts, the prior act was not so remote “as to be lacking

in evidentiary value,” at least where the appellant was incarcerated

for much of the intervening period. (citation and punctuation

omitted)).

     The prior crimes were also similar to the charged crimes in

significant respects. See Kirby, 

 (4) (a) (i) (Explaining

that, when other-acts evidence is introduced to prove intent as

opposed to identity, “a lesser degree of similarity between the

charged crime and the (extrinsic evidence) is required.” (citation and

punctuation omitted)). Both shootings took place in Chatham

County in predominantly residential neighborhoods. Both shootings



     11 It is not clear from the record exactly how long Moon was incarcerated

between the 2005 and 2012 shootings. The record shows that, after Moon was
arrested for the 2005 shootings, he remained in jail. When he was sentenced
in 2007, he was given credit for time served and released from prison shortly
thereafter. Moon was subsequently arrested for committing new offenses, and
his probation was twice revoked, in 2008 and 2009. In 2009, the court revoked
two years of Moon’s sentence.
                                     53
were precipitated by perceived slights or insults. In the prior crimes,

Moon was offended that Williams had accused him of stealing

puppies. In the charged crimes, Moon’s best friend, Grant, was

offended that Allen had failed to avenge the murder of Grant’s

brother. In both the 2005 crimes and the charged crimes, Moon and

an accomplice followed the victims in a rental car and waited until

they parked. Then, either Moon or his accomplice fired multiple

rounds from an AK-47 or similar rifle at victims who were sitting in

a parked car. Although Moon was the shooter in the 2005 crimes and

the driver in the charged crimes, the evidence in both cases was

sufficient to show that, in both crimes, driver and shooter shared a

common criminal intent and were culpable as parties to the crimes.

See 

 (Although the prior acts were insufficiently similar to prove

identity, the trial court had discretion to consider the similarities

and differences between the prior crimes and to conclude that the

evidence of the prior acts retained substantial probative value.)

     Finally, the prosecutorial need for the evidence was significant.

Except for the statement of the jailhouse informant, Green, the

                                  54
evidence against Moon was entirely circumstantial. No eyewitnesses

placed Moon in the car at the time of the shooting, and video

surveillance of the shooting showed only a masked shooter getting

into the passenger side of the getaway car. Moon maintained during

his police interview that he had never been in the car. Although

fingerprint evidence and witness testimony placed Moon in the car

with Grant on the night of the shooting, the evidence showed that

only Grant had a motive to kill Allen. Consequently, evidence that

Moon shared Grant’s criminal intent was crucial to proving Moon’s

guilt. To satisfy its burden of proof and to establish that Moon

shared in Grant’s intent to shoot the victims, the State needed

evidence from which the jury could infer that intent. See Harrison

v. State, 

 (3) (

) (2021); Thompson v.

State, 

 (2) (

) (2020).

     Given the significant probative value of the evidence in proving

Moon’s shared criminal intent, the trial court did not abuse its

discretion in admitting evidence of the 2005 incident on the issue of

intent. See McKinney, 

 (3) (no abuse of discretion in

                                 55
trial court’s conclusion that prejudice did not substantially outweigh

the significant probative value of appellant’s prior assault). Upon

retrial of this case, however, the trial court should reconsider the

extent to which the State should be allowed to present photographic

evidence of the 2005 crimes. Rule 404 (b) applies with equal force to

the admission of the photographs from the 2005 incident as it does

to testimony because each photograph constitutes “extrinsic

evidence of a prior crime.” United States v. Bush, 

 (11th Cir. 2016). Consequently, if photographic evidence of

the prior crimes is not relevant to proving Moon’s intent under Rule

404 (b), or if it is relevant but does not meet the criteria for

admission under Rule 403, including being needlessly cumulative, it

should be excluded. See id.

     4. Moon contends that the trial court should have suppressed

the evidence seized from his residence pursuant to a search warrant,

including two rifles found in a locked shed on the property because




                                 56
the warrant was not supported by probable cause.12

      Moon contends that the search warrant was issued without

probable cause, arguing that the information in the supporting

affidavit was based on statements from an unreliable witness,

lacked sufficient indicia of reliability, and failed to show a basis for

believing that evidence of a crime would be found at Moon’s

residence. We disagree.

      In reviewing whether a search warrant was supported by

probable cause, as required by the Fourth Amendment, see Illinois

v. Gates, 

 (III) (

, 76 LE2d 527) (1983),

we bear in mind that

      the magistrate’s task is simply to make a practical,
      common-sense decision whether, given all the
      circumstances set forth in the affidavit before him,
      including the veracity and basis of knowledge of persons
      supplying hearsay information, there is a fair probability
      that contraband or evidence of a crime will be found in a

      12 In this enumeration of error, Moon also baldly asserts that the search

warrant constituted a “general warrant,” but his brief offers no legal argument
or citation of authority in support of this claim. Thus, this claim of error is
deemed abandoned. See Supreme Court Rule 22 (“Any enumerated error not
supported by argument or citation of authority in the brief shall be deemed
abandoned. . . .”). See also Williams v. State, 

 (

)
(2019) (claim of error abandoned when appellant offered no arguments in
support of claim).
                                      57
     particular place. The test for probable cause is not a
     hypertechnical one to be employed by legal technicians,
     but is based on the factual and practical considerations of
     everyday life. The trial court may then examine the issue
     as a first level of review, guided by the Fourth
     Amendment’s strong preference for searches conducted
     pursuant to a warrant, and the principle that substantial
     deference must be accorded a magistrate’s decision to
     issue a search warrant based on a finding of probable
     cause. And when an appellate court reviews a search
     warrant, it uses the Gates totality-of-the-circumstances
     analysis to determine if the magistrate had a substantial
     basis for concluding that probable cause existed to issue
     the search warrant. The Fourth Amendment requires no
     more. In reviewing the trial court’s grant or denial of a
     motion to suppress, we apply the well-established
     principles that the trial court’s findings as to disputed
     facts will be upheld unless clearly erroneous and the trial
     court’s application of the law to undisputed facts is subject
     to de novo review, keeping in mind that a magistrate’s
     decision to issue a search warrant based on a finding of
     probable cause is entitled to substantial deference by a
     reviewing court.

(Citations and punctuation omitted.) Palmer v. State, 

,

671-672 (2) (a) (

) (2021).

     The lead detective’s affidavit in support of the application for

the search warrant set forth the details about the homicides,

including the type of ammunition used to kill Biancosino and

Pickels. The lead detective described how video recordings of the car

                                  58
used in the shooting led investigators to Kiawana Williams. In the

affidavit, the detective recounted Williams’s many false statements,

but explained that she began cooperating after she was confronted

with evidence proving that she had lied. Williams reluctantly

identified Moon from a photograph and said that she had loaned her

car to Moon and Grant on the night of the shooting. She explained

that she had lied before because Moon had told her to and because

“she was scared about what [he] might do to her.” The detective also

reported that Williams had purchased cell phones for Moon and

Grant, and she provided the detective with those phone numbers.

After obtaining records for those phone numbers, the detectives

learned that one of the phones had been used in close proximity to

the scene of the crime around the time of the shooting. Also, Moon’s

fingerprints had been found on the hood of Williams’s rental car.

Moon was arrested by his probation officer on September 7, 2012, at

the residence for which the detective was seeking a search warrant.

At the time of the arrest, the probation officer saw three cell phones

in Moon’s bedroom. Moon’s parole officer confirmed that Moon had

                                 59
signed a Fourth Amendment waiver as a condition of his parole.

Moon had prior felony convictions involving the possession and use

of firearms.

     In its order denying Moon’s motion to suppress, the trial court

upheld the magistrate judge’s finding of probable cause, stating:

     Here, police had information that [Moon], named and
     identified by Williams, had been driving a vehicle
     matching the description of the vehicle used by the
     murder suspects around the time of the homicides and
     was alleged to be in possession of cell phones that were
     used in the area of the homicides a short time thereafter.
     The information that [Moon] had used the car was
     corroborated by [his] fingerprint on the car.

     Moon does not contend that any of the assertions in the

affidavit are untrue, only that they lack significance and, therefore,

do not provide support for a search warrant. For example, he argues

that Williams was unreliable, Moon’s fingerprint on the exterior of

the car proves nothing, and the information concerning the cell

phones is “of no consequence because cell phones have become

ubiquitous in our society.” Such arguments, however, “ignore our

deferential standard of review and the requirement that we consider


                                 60
the totality of the circumstances in determining whether the

magistrate, as a practical, common-sense matter, had a substantial

basis for concluding that probable cause existed to issue the search

warrant.” Palmer, 

 (2) (a). Under the totality of the

circumstances, the magistrate had a substantial basis for concluding

that probable cause existed to issue the search warrant; therefore,

the trial court did not err in denying Moon’s motion to suppress on

this ground.

     5. Moon contends that the trial court erred in denying his

motion to sever Count 18, which charged him with attempting to

purchase an AK-47 rifle five days after the double murder. We

disagree.

     Where offenses are joined in a single indictment, a
     defendant has a right to severance where the offenses are
     joined solely on the ground that they are of the same or
     similar character because of the great risk of prejudice
     from a joint disposition of unrelated charges. However,
     where the joinder is based upon the same conduct or on a
     series of acts connected together or constituting parts of a
     single scheme or plan, severance lies within the sound
     discretion of the trial judge since the facts in each case are
     likely to be unique. If severance is not mandatory, it is
     nevertheless incumbent upon the trial court to determine

                                  61
     whether severance was necessary to achieve a fair
     determination of [the defendant’s] guilt or innocence as to
     each offense. To make that determination, the court
     should consider whether in view of the number of offenses
     charged and the complexity of the evidence to be offered,
     the trier of fact will be able to distinguish the evidence
     and apply the law intelligently as to each offense.

(Citations and punctuation omitted.) Carson v. State, 

 (2) (a) (

) (2020).

     In the order denying Moon’s motion to sever Count 18, the trial

court concluded that the murder counts and Count 18 were properly

joined. The court determined that the counts were based on a series

of connected acts, reasoning that, because the murder weapon,

identified by forensic evidence as either an SKS- or AK-47-type rifle,

was never found and was presumably disposed of by Moon, Moon’s

alleged attempt to obtain an AK-47 shortly after the homicides —

perhaps to replace the one that he disposed of — may be relevant to

show his involvement in the homicides.13 The trial court found that

severance was not mandatory and exercised its discretion not to



     13 As noted above, the State presented evidence at trial that Moon and

Grant disposed of the murder weapon.
                                   62
sever Count 18 from the murder counts.

     The trial court reasonably found that the murder counts and

Count 18 were based on a series of connected acts and occurred

closely in time with each other. We cannot say that, in view of the

number of offenses charged and the complexity of the evidence to be

offered, a jury would be unable to distinguish the evidence and apply

the law intelligently as to each offense. Accordingly, the trial court

did not abuse its discretion in denying Moon’s motion to sever Count

18. See Keller v. State, 

 (7) (

) (2020);

Doleman v. State, 

 (3) (

) (2018).

     6. In addition to the claims of error addressed in this opinion,

Moon also enumerates other claims of trial court error, prosecutorial

misconduct, and ineffective assistance by his trial counsel. Because

the remaining alleged errors involve issues that are not likely to

recur at retrial, we need not address them. See Williams v. State,

 (2) (

) (2016).

     Judgment reversed and case remanded. All the Justices concur.



                                  63
                      Decided June 21, 2021.

     Murder. Chatham Superior Court. Before Judge Freesemann.

     Kirby Clements, Jr., for appellant.

     Meg E. Heap, District Attorney, Bradley R. Thompson,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, for appellee.




                                 64