312 Ga. 481 - Johnson v. State

¶1In the Supreme Court of Georgia

¶2 Decided: September 21, 2021

¶3 S21A0807. JOHNSON v. THE STATE.

¶4 NAHMIAS, Chief Justice.

¶5 Appellant Raphael Johnson was convicted of the malice

¶6murder of Frederick Burke, the felony murder of James Cornelius,

¶7and other crimes in connection with a shooting incident at a

¶8“gambling house” on August 13, 2013, and the aggravated battery of

¶9Ahmed Rayner in connection with another shooting at a restaurant

¶10a week later. In his appeal to this Court, Appellant contends that

¶11the evidence presented at his trial was legally insufficient to support

¶12his convictions for the aggravated battery of Rayner, that the trial

¶13court’s jury instruction on aggravated assault constituted plain

¶14error, and that the trial court abused its discretion by concluding

¶15that evidence of another shooting incident that occurred a few hours

¶16before the gambling house shootings was admissible as intrinsic evidence. As explained below, we reject these contentions and affirm

¶17Appellant’s convictions, except for his conviction for possession of a

¶18firearm during the commission of a felony, which we vacate to

¶19correct a merger error. 1

¶20 1 The crimes occurred on August 13 and 20, 2013. In November 2013, a Fulton County grand jury indicted Appellant for the following crimes in connection with the August 13 shooting incident: malice murder of Burke, three counts of felony murder of Burke, aggravated assault of Burke, felony murder of Cornelius (based on the aggravated assault of Burke), armed robbery of Bryan Cornelius, aggravated battery of Bryan, aggravated assault of Bryan, possession of a firearm during the commission of a felony, possession of a firearm by a convicted felon, and use of a firearm by a convicted felon during the commission of a felony. In connection with the shooting on August 20, Appellant was indicted for two counts of aggravated battery of Rayner (one by seriously disfiguring his buttock and one by seriously disfiguring his thigh), attempted armed robbery, aggravated assault, possession of a firearm during the commission of a felony, possession of a firearm by a convicted felon, and use of a firearm by a convicted felon during the commission of a felony. Appellant was also indicted for one count of participating in criminal street gang activity between August 13 and 20. The trial court later bifurcated the counts of possession and use of a firearm by a convicted felon related to the August 20 shooting, and on March 10, 2016, the first day of Appellant’s trial, the court nolle prossed the attempted armed robbery count. On March 18, 2016, the jury found Appellant guilty of the remaining counts. The trial court sentenced him as a recidivist to serve three consecutive sentences of life in prison without the possibility of parole for the malice murder of Burke, felony murder of Cornelius, and armed robbery of Bryan; 20 consecutive years for the aggravated battery of Bryan; five consecutive years for the count of possession of a firearm during the commission of a felony related to the August 13 shootings; 15 consecutive years on probation for the count of use of a firearm by a convicted felon during the commission of a felony related to the August 13 shootings; 20 consecutive years for each of the counts of aggravated battery of Rayner; five consecutive years

¶21 2 1. The evidence presented at Appellant’s trial showed the

¶22following.

¶23 (a) The Gambling House Shootings.

¶24 In August 2013, James Cornelius operated an illegal “gambling

¶25house” where people met to play high-stakes card games and use

¶26gambling machines in a building on Lee Street in Atlanta. On the

¶27night of August 12, Cornelius’s grandson Bryan Cornelius (“Bryan”)

¶28and his friend Frederick Burke were working at the gambling house.

¶29 At trial, Bryan testified as follows. Late that night, Quinton

¶30Porter, who frequented the gambling house and whom Bryan knew

¶31only as “Big Boo,” walked outside to the parking lot, where he spoke

¶32with some men who had arrived in a silver Ford Taurus. Three of

¶33on probation for the count of possession of a firearm during the commission of a felony related to the August 20 shooting; and 15 consecutive years for the gang-activity count. The remaining felony murder counts were vacated by operation of law; the counts of aggravated assault of Burke, Bryan, and Rayner and the remaining count of possession of a firearm by a convicted felon merged; and the court nolle prossed the bifurcated firearm counts. Appellant filed a timely motion for new trial, which he amended through new counsel in June 2019. After Appellant waived a hearing on the motion, the trial court denied it in January 2021. Appellant then filed a timely notice of appeal, and his case was docketed to the April 2021 term of this Court and orally argued on June 8, 2021. 3 the men in the Taurus came to the door of the gambling house.

¶34Burke assumed that the men were with Big Boo, let them in, and

¶35then went outside. Bryan was inside. A few minutes later, one of the

¶36men pulled out “a gun,” pointed it at Bryan, and said “You already

¶37know what this is. Get on the ground.” Bryan ran toward the

¶38assailant, slamming him against the door, and the assailant started

¶39shooting. As Bryan pulled out his own gun, he was shot, and he fell

¶40to the ground. The assailant pointed his gun at Bryan’s head and

¶41said, “Let it go, let it go right now or I will kill you.” Bryan dropped

¶42his gun. Burke then opened the door, and the assailant shot Burke

¶43several times. The assailant took Bryan’s gun; Bryan heard him and

¶44the other two men go toward the back of the building. A short time

¶45later, the three men stepped over Bryan as they left the building and

¶46fled in the Taurus. Bryan then saw Cornelius, who was near the

¶47back of the building, grab his chest and fall to the floor. Someone at

¶48the gambling house called 911.2

¶49 2During the 911 call, which was audio recorded and played for the jury, Bryan described the shooter as “tall,” about 5’9” or 5’10”. He later told a

¶50 4 Burke, Cornelius, and Bryan were taken to a hospital. Burke

¶51and Cornelius died several days later. Burke’s autopsy showed that

¶52he was shot multiple times and died from complications of gunshot

¶53wounds to his torso; no bullets were recovered from his body.

¶54Cornelius’s autopsy showed that he died from a heart attack caused

¶55by the stressful criminal event. Bryan was shot at least four times;

¶56he ultimately recovered, although it was nearly two years before he

¶57could walk again. A .45-caliber bullet was removed from Bryan’s

¶58body while he was being treated at the hospital. A crime scene

¶59investigator found a .45-caliber bullet, two .45-caliber shell casings,

¶60and two .40-caliber shell casings at the gambling house.

¶61 In the days after the shootings, Bryan’s father showed Bryan

¶62two photos on the father’s cell phone and asked if Bryan recognized

¶63responding officer that one of the assailants was about 6’0” tall and weighed about 140 pounds; he described another assailant as about 5’8” tall. Two witnesses who were near the back of the gambling house testified that they heard gunshots but did not see the shootings. One of those witnesses testified that two armed assailants then demanded and took money, keys, and pants from some of the other gamblers and left. That witness also testified that the two assailants he saw were tall, thin men; the other witness testified that one of the assailants was “slim.” The jury saw Appellant in the courtroom; an August 2013 jail booking report in the record but not presented in evidence says that Appellant is 6’4” tall and weighed 210 pounds. 5 anyone. Bryan identified one of the men in the photos as the shooter.

¶64During an interview on August 18, Bryan showed a detective the

¶65photos, and the detective later determined that the man whom

¶66Bryan identified was Appellant. The next day, the detective showed

¶67Bryan a photo lineup, and Bryan identified Appellant as the shooter.

¶68Bryan repeated that identification at trial.

¶69 Another investigator obtained video recordings from

¶70surveillance cameras in the parking lot outside the gambling house.

¶71The recordings, which the prosecutor accurately described in her

¶72opening statement as “grainy,” were played during the trial, and

¶73Bryan testified about them. The recordings show the following. At

¶7411:13 p.m., a silver Taurus parked near the gambling house, and a

¶75tall man, whom Bryan identified at trial as Appellant, got out.3 At

¶76least three other men were in the car. Porter and others came

¶77outside the gambling house and talked with Appellant for about 30

¶78minutes. At 11:48, Appellant got back in the Taurus, while Porter

¶79 3The prosecutor also showed the surveillance video recordings to another witness who was in the parking lot that night. The witness testified that he “believe[d]” that the tall man shown on the recordings was Appellant. 6 and another man got in a nearby SUV. At 12:03 a.m., Appellant and

¶80two other men got out of the Taurus and walked toward the

¶81gambling house. At 12:07, the SUV drove away. At 12:08, Appellant,

¶82who was carrying clothing, and the two other men ran back to the

¶83Taurus, jumped in, and sped away.

¶84 (b) The Restaurant Shooting.

¶85 Shortly after 10:00 p.m. on August 20, a week after the

¶86shootings at the gambling house, Ahmed Rayner was shot multiple

¶87times as he left a restaurant on Peachtree Road in Atlanta. A

¶88detective obtained video recordings from the surveillance cameras

¶89at the restaurant; the recordings were later played for the jury. The

¶90video recordings show the following. At 9:28 p.m., two Dodge

¶91Chargers pulled into the restaurant parking lot and parked, one

¶92behind the other. A tall man, whom a hostess at the restaurant later

¶93identified in a photo lineup and at trial as Appellant, and a shorter

¶94man got out of the first Charger and went into the restaurant. About

¶9515 minutes later, the shorter man went back to the first Charger;

¶96sat in the passenger seat for a moment; walked toward the other

¶97 7 Charger, which was partially out of view of the surveillance

¶98cameras; and then returned to the restaurant. Appellant and the

¶99shorter man eventually were seated a few tables away from Rayner,

¶100who was dining with several other people. At 10:07 p.m., some

¶101members of Rayner’s party stood up, as if preparing to leave, and

¶102about a minute later, Appellant appeared to be talking on his cell

¶103phone. At 10:10 p.m., Rayner and his companions exited the

¶104restaurant.

¶105 Moments later, the second Charger pulled up near the exit, and

¶106a man got out of the passenger seat pointing a handgun. Rayner ran

¶107back into the restaurant, with the assailant following and shooting.

¶108The assailant ran out of the restaurant seconds later and fled in the

¶109Charger. Rayner then limped into the dining area, where he fell to

¶110the floor. Appellant, who had ducked under a table when the

¶111shooting began, appeared to be talking on his cell phone while

¶112several bystanders attended to Rayner. The shorter man then went

¶113outside and got into the remaining Charger. Appellant exited the

¶114restaurant about seven minutes after the shooting. In the parking

¶115 8 lot, several members of Rayner’s party appeared to speak to

¶116Appellant. They then chased him before he got in the Charger, which

¶117sped away.

¶118 Two responding police officers testified that Rayner had been

¶119shot and was taken to a hospital. A crime scene investigator found

¶120two .45-caliber shell casings inside the restaurant. Crime scene

¶121photographs showed that there were bloodstains on the ground near

¶122the entrance to the restaurant and on the carpet in the dining area.

¶123The State also introduced into evidence Rayner’s medical records,

¶124which showed that he suffered gunshot wounds to his right thigh,

¶125left buttock, and left thigh. 4

¶126 (c) Appellant’s Arrest.

¶127 4 The medical records also showed the following: Rayner was transported in an ambulance to the hospital, where his condition was designated “Trauma: Level 1”; he reported “acute pain,” had “moderate” to “mild” bleeding, and was unable to lie on his back due to the gunshot wounds; x-rays showed that there were bullet fragments embedded near the gunshot wounds; he “denied paresthesias or loss of movement” and there was no evidence of “compartment syndrome or vascular compromise”; and on the day after the shooting, he was discharged from the hospital in a wheelchair with a prescription for the painkiller oxycodone. Rayner did not testify at trial. The prosecutor told the trial court outside the presence of the jury that Rayner lived in Ohio and refused to return to Georgia to testify. 9 Six days after the restaurant shooting, on August 26, police

¶128officers arrested Appellant, who was a convicted felon, in a park,

¶129where he was hanging out with Latavious Hunter. Hunter was also

¶130arrested after he pointed his .45-caliber handgun at the officers.

¶131 Appellant was interviewed in connection with the gambling

¶132house shootings later that day; the interview was audio and video

¶133recorded, and the recording was played for the jury. During the

¶134interview, Appellant claimed that he arrived at the gambling house

¶135in a gray Nissan Altima around 10:00 p.m. on the night of the

¶136shootings; he asked his friend Big Boo (Porter) for $20 so that he

¶137could go to a club; and after a few minutes, he left. Appellant denied

¶138being a member of a gang or participating in the robbery and

¶139shootings, and he told investigators that he had heard that his

¶140cousin and two other men committed the crimes.

¶141 Ten days later, a detective interviewed Porter, who claimed

¶142that his friend “Ralph,” whom he identified in a photo lineup as

¶143Appellant, came to the gambling house parking lot on the night of

¶144the shootings; that he gave Appellant $20 and then left the gambling

¶145 10 house; and that he was not involved in planning the robbery. Porter

¶146also testified at trial, claiming that he did not remember being at

¶147the gambling house on the night of the shootings or being

¶148interviewed by the detective.

¶149 (d) The Boulevard Place Shootings.

¶150 The State also presented evidence that around 8:30 p.m. on

¶151August 12, about three-and-a-half hours before the gambling house

¶152shootings, another shooting incident occurred on Boulevard Place in

¶153Atlanta. A responding police officer testified that Travis Montford

¶154and another man were shot. Neither of the victims could identify

¶155who had shot them, but a woman at the scene called out to the

¶156officer, “It was a silver Ford Taurus.” A crime scene investigator

¶157testified that he collected a 9mm shell casing, five 7.62-caliber shell

¶158casings, three .40-caliber shell casings, seven .45-caliber shell

¶159casings, and a .45-caliber bullet.

¶160 (e) Additional Evidence at Trial.

¶161 A firearms examiner testified that the .40-caliber shell casings

¶162found at the crime scene on Boulevard Place were fired from the

¶163 11 same gun as the .40-caliber shell casings found at the gambling

¶164house. There were also at least two .45-caliber handguns used in the

¶165Boulevard Place shooting. Three of the seven .45-caliber shell

¶166casings found at that scene were fired from the same gun as both

¶167.45-caliber shell casings found at the gambling house. The .45-

¶168caliber bullet found at the Boulevard Place scene was fired from the

¶169same gun that fired the .45-caliber bullet found at the gambling

¶170house and the .45-caliber bullet that was removed from Bryan’s

¶171body. None of the shell casings or bullets found in connection with

¶172the gambling house shootings was fired from the .45-caliber

¶173handgun found on Hunter when he was arrested with Appellant.

¶174However, the remaining four .45-caliber shell casings found at the

¶175Boulevard Place scene and the two .45-caliber shell casings found at

¶176the restaurant were fired from the .45-caliber gun later found on

¶177Hunter.

¶178 The State’s gang expert testified that Appellant and Hunter

¶179were members of the Atlanta Blood Gang (“ABG”), an affiliate of the

¶180Bloods gang; that Porter was also affiliated with the Bloods gang;

¶181 12 and that Montford (one of the victims in the Boulevard Place

¶182shootings) was a member of the rival Crips gang. To prove

¶183Appellant’s membership in ABG, the State also presented evidence

¶184of two rap music videos that promoted songs referencing ABG, which

¶185featured Appellant and other ABG members; still images from the

¶186videos showing Appellant wearing a shirt with “ABG” on it; and the

¶187gang expert’s testimony that Appellant had “ABG” tattooed on his

¶188arm. Bryan testified that he was not a gang member and did not

¶189know Appellant, and the State presented no evidence that Rayner

¶190was associated with a gang or knew Appellant. However, the gang

¶191expert testified that gang members often “work” for the gang by

¶192committing armed robberies and shootings and that the incidents at

¶193the gambling house and restaurant were related to gang activity.

¶194 Appellant did not testify. His theory of defense was that

¶195Bryan’s descriptions of the shooter at the gambling house did not

¶196match Appellant; that the evidence did not show that Appellant

¶197planned or participated in the restaurant shooting; and that the case

¶198 13 was not adequately investigated.5

¶199 2. OCGA § 16-5-24 (a) says, in pertinent part, that “[a] person

¶200commits the offense of aggravated battery when he or she

¶201maliciously causes bodily harm to another by . . . seriously

¶202disfiguring his or her body or a member thereof.” Appellant was

¶203indicted for two counts of aggravated battery for “maliciously

¶204caus[ing] bodily harm to . . . Rayner by seriously disfiguring his

¶205[buttock (Count 13) and thigh (Count 14)] . . . by shooting him with

¶206a handgun,” and the jury found him guilty of both counts. Appellant

¶207now contends that the evidence presented at his trial was legally

¶208insufficient to support those convictions because the State failed to

¶209prove that Rayner was “seriously disfigure[ed].” We disagree.6

¶210 As a matter of due process under the Fourteenth Amendment

¶211to the United States Constitution, we evaluate the sufficiency of

¶212 5 The record does not indicate if any of the other assailants in the Boulevard Place, gambling house, or restaurant shootings were ever identified or prosecuted. 6 We note that Appellant does not dispute that the evidence was legally

¶213sufficient for the jury to find him guilty as a party to the attack on Rayner by the unidentified gunman, see OCGA § 16-2-20 (a) (defining parties to a crime), nor that that the evidence was sufficient to support his other convictions. 14 evidence by determining whether a rational trier of fact could have

¶214found the defendant guilty beyond a reasonable doubt. See Jackson

¶215v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). “In

¶216conducting that evaluation, ‘[i]t is not the job of this Court to weigh

¶217the evidence on appeal or resolve conflicts in trial testimony but

¶218rather to examine the evidence in the light most favorable to the

¶219verdict[.]’” Byers v. State, 311 Ga. 259, 266 (857 SE2d 447) (2021)

¶220(citation omitted).

¶221 This Court has explained that,

¶222 [a]lthough the Criminal Code does not define “seriously disfiguring” as used in the aggravated battery statute, see OCGA § 16-5-19, that term generally has been construed as meaning “gravely or greatly impairing or injuring the appearance of a member of a victim’s body, even if only temporarily.” “Aggravated battery predicated upon serious disfigurement, whether temporary or permanent, requires proof that the injury inflicted was more than a superficial wound, that is, a scrape, bruise, discoloration, or swelling.” “Inasmuch as the circumstances inevitably vary in each case of aggravated battery, whether disfigurement is serious is best resolved by the factfinder on a case-by-case basis and is almost always a question for the jury.”

¶223 Id. (citations omitted). When viewed in the light most favorable to

¶224the verdicts, the evidence presented at Appellant’s trial – including 15 the surveillance video and photos from the restaurant, testimony

¶225from the responding officers, and Rayner’s medical records – showed

¶226that after the assailant shot Rayner in his buttock and thighs, he

¶227bled on the restaurant’s entrance and carpet as he limped back into

¶228the restaurant and fell to the floor. He was then taken by ambulance

¶229to a hospital, where he reported acute pain and was still bleeding.

¶230X-rays showed bullet fragments embedded near the gunshot

¶231wounds, and Rayner could not lie on his back due to the wounds. He

¶232was discharged from the hospital in a wheelchair with a prescription

¶233for a painkiller.

¶234 This evidence authorized a rational jury to infer that Rayner

¶235suffered disfigurement that was serious, not merely superficial. See

¶236id. (concluding that evidence that the victim “bled from the head so

¶237profusely that there was blood on the couch, floor, and wall

¶238authorized the jury to infer that [he] in fact suffered disfigurement

¶239[from a visible head wound] that was not merely superficial, but

¶240serious” under OCGA § 16-5-24 (a)). Compare Williams v. State, 248

¶241Ga. App. 316, 317-319 (546 SE2d 74) (2001) (reversing the

¶242 16 defendant’s aggravated battery conviction because there was

¶243insufficient evidence that the victim was seriously disfigured by the

¶244defendant’s attack, which left bruises and scratches on her face,

¶245where there was no evidence that she was bleeding, received any

¶246medical treatment after the attack, or was scarred).

¶247 Appellant asserts that the State should have introduced

¶248testimony about Rayner’s medical treatment as well as photos and

¶249x-rays of his injuries to prove that he was seriously disfigured. But

¶250as we have explained many times before, “[a]lthough the State is

¶251required to prove its case with competent evidence, there is no

¶252requirement that it prove its case with any particular sort of

¶253evidence[.]” Howell v. State, 307 Ga. 865, 872 (838 SE2d 839) (2020)

¶254(citation and punctuation omitted). This enumeration of error is

¶255meritless.

¶256 3. Appellant next contends that the trial court committed plain

¶257error when it instructed the jury on aggravated assault and that his

¶258convictions for aggravated assault and felony murder based on that

¶259offense should therefore be reversed. As an initial matter,

¶260 17 Appellant’s claim that his aggravated assault “convictions” should

¶261be reversed is moot. Appellant was not convicted of or sentenced for

¶262aggravated assault, because those counts all merged. See footnote 1

¶263above; Solomon v. State, 304 Ga. 846, 849 (823 SE2d 265) (2019).

¶264And as to his felony murder conviction, Appellant has not carried

¶265his burden of establishing plain error, because he has not shown that

¶266any alleged error in the aggravated assault instruction likely

¶267affected the outcome of his trial.

¶268 Appellant was indicted for the felony murder of Cornelius

¶269based on the count of aggravated assault with a deadly weapon

¶270which alleged that Appellant “did unlawfully commit an assault

¶271upon the person of Frederick Burke, by shooting him with a

¶272handgun, the same being a deadly weapon.” See OCGA § 16-5-21 (a)

¶273(2) (“A person commits the offense of aggravated assault when he or

¶274she assaults . . . [w]ith a deadly weapon[.]”).7 The State asked the

¶275trial court to give the pattern jury instruction defining aggravated

¶276 7 As discussed above, Cornelius’s autopsy showed that he died from a heart attack caused by witnessing the attack at the gambling house. 18 assault with a deadly weapon, which says (in pertinent part and

¶277with parentheses omitted):

¶278 A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon . . . .

¶279 To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim . . . .

¶280 The State must also prove as a material element of aggravated assault, as alleged in this case, that the assault was made with a deadly weapon . . . .

¶281Suggested Pattern Jury Instructions, Vol. II: Criminal Cases §

¶2822.20.21 (4th ed. 2007). During the charge conference, the trial court

¶283said that it would give the pattern instruction. During the final

¶284charge, however, just after the court instructed the jury on the

¶285definition of armed robbery, the court read the jury the second and

¶286third paragraphs of this pattern instruction but omitted the first

¶287paragraph.

¶288 As Appellant acknowledges, he failed to object to this omission,

¶289so our review of his claim is limited to plain error. See OCGA § 17-

¶290 19 8-58 (b); Knighton v. State, 310 Ga. 586, 591 (853 SE2d 89) (2020).

¶291To establish plain error, Appellant must show that

¶292 the alleged instructional error was not affirmatively waived; was clear and obvious, rather than subject to reasonable dispute; likely affected the outcome of the trial; and seriously affected the fairness, integrity, or public reputation of judicial proceedings. An appellant must establish all four elements of the test in order to demonstrate plain error, so satisfying this test is difficult, as it should be.

¶293Knighton, 310 Ga. at 591 (citations and punctuation omitted).

¶294 Assuming without deciding that the trial court’s omission of

¶295the first paragraph of the pattern instruction was a clear and

¶296obvious error, Appellant has not shown that it likely affected the

¶297outcome of his trial. As we have often explained, “[w]e do not

¶298evaluate jury charges in isolation, but rather consider them as a

¶299whole to determine whether there is a reasonable likelihood the jury

¶300improperly applied a challenged instruction.” Walker v. State, ___

¶301Ga. ___, ___ (859 SE2d 25, 31) (2021) (citation and punctuation

¶302omitted). At the beginning of the final charge, the trial court read

¶303the indictment to the jury, including the count of “aggravated

¶304assault with a deadly weapon” alleging that Appellant “commit[ted] 20 an assault” on Burke “by shooting him with a handgun, the same

¶305being a deadly weapon.” The court later read the second and third

¶306paragraphs of the pattern instruction defining aggravated assault,

¶307which informed the jury that the State was required to prove that

¶308Appellant assaulted Burke by attempting to cause him a violent

¶309injury and that the assault must have been made with a deadly

¶310weapon in order to constitute an aggravated assault. The court also

¶311instructed that a firearm, when used as such, is a deadly weapon as

¶312a matter of law, and fully instructed the jury on the crime of felony

¶313murder. Moreover, the court instructed the jury during the

¶314preliminary and the final charge that the State was required to

¶315prove every material allegation of the indictment and every

¶316essential element of the crimes charged beyond a reasonable doubt,

¶317and the jury was provided copies of the indictment and the final

¶318charge during its deliberations.

¶319 Considering the instructions as a whole, the jury was

¶320adequately informed that a defendant commits aggravated assault

¶321when he assaults another person with a deadly weapon. And the

¶322 21 evidence that Burke was shot (and killed) with a handgun was

¶323overwhelming and undisputed by Appellant; his defense was instead

¶324that he was not involved in that crime. Thus, Appellant has not

¶325shown that the trial court’s omission of the first paragraph of the

¶326pattern instruction amounted to plain error. See Anderson v. State,

¶327 309 Ga. 618, 622-624 (847 SE2d 572) (2020) (holding that the

¶328appellant did not show that the trial court’s failure to give a separate

¶329instruction to the jury on the elements of possession of a firearm

¶330during the commission of a felony likely affected the outcome of his

¶331trial under the third part of the plain error test, in part because the

¶332court read to the jury the indictment, which was also sent out with

¶333the jury during its deliberations, and instructed that the State was

¶334required to prove every material allegation of the indictment and

¶335every essential element of the crimes charged beyond a reasonable

¶337 144 LE2d 35) (1999) (“[W]here a reviewing court concludes beyond

¶338a reasonable doubt that the omitted element was uncontested and

¶339supported by overwhelming evidence, such that the jury verdict

¶340 22 would have been the same absent the error, the erroneous

¶341instruction is properly found to be harmless.”); United States v.

¶342Abovyan, 988 F3d 1288, 1306-1308 (11th Cir. 2021) (concluding that

¶343the trial court’s failure to instruct the jury on the elements of

¶344healthcare fraud, where the defendant was charged with conspiracy

¶345to commit healthcare fraud, did not amount to plain error, because

¶346the trial court referred to and the jury was given a copy of the

¶347indictment, which tracked the elements of healthcare fraud, the

¶348court instructed on the elements of conspiracy, and there was no

¶349dispute that healthcare fraud did occur).

¶350 4. Finally, Appellant argues that the trial court abused its

¶351discretion by ruling that evidence related to the shootings on

¶352Boulevard Place was admissible as intrinsic evidence. We can

¶353assume without deciding that Appellant preserved this claim for

¶354ordinary appellate review, because he has not shown that the trial

¶355court’s ruling was an abuse of discretion. See Harris v. State, 310

¶356Ga. 372, 377 (850 SE2d 77) (2020) (explaining that when the

¶357defendant objected at trial to the admission of evidence as intrinsic,

¶358 23 the trial court’s ruling is reviewed on appeal for abuse of discretion).

¶359 Evidence is admissible as “intrinsic” evidence “‘when it is (1)

¶360an uncharged offense arising from the same transaction or series of

¶361transactions as the charged offense; (2) necessary to complete the

¶362story of the crime; or (3) inextricably intertwined with the evidence

¶363regarding the charged offense.’” Smith v. State, 307 Ga. 263, 271

¶364(834 SE2d 1) (2019) (citation omitted). In applying this test, we have

¶365explained that “‘[e]vidence pertaining to the chain of events

¶366explaining the context, motive, and set-up of the crime[] is properly

¶367admitted if it is linked in time and circumstances with the charged

¶368crime.’” Id. (citation omitted). In addition, intrinsic evidence must

¶369satisfy OCGA § 24-4-403 (“Rule 403”), which says in pertinent part

¶370that “[r]elevant evidence may be excluded if its probative value is

¶371substantially outweighed by the danger of unfair prejudice.”

¶372However, “[t]he exclusion of relevant evidence under Rule 403 is an

¶373extraordinary remedy that trial courts should grant only sparingly.”

¶374Smith, 307 Ga. at 273.

¶375 In this case, Appellant was charged with participating in

¶376 24 criminal street gang activity, and the State’s theory was that he was

¶377involved in the gambling house shootings (with Bloods gang affiliate

¶378Porter and several unidentified assailants) and the restaurant

¶379shooting (with several unidentified assailants) as part of his “work”

¶380for the Bloods-affiliated gang ABG. The evidence related to the

¶381Boulevard Place shootings added significant weight to that theory,

¶382because that evidence was linked in time and circumstances with

¶383the charged crimes and one victim was a member of a rival gang.

¶384Most significantly, the ballistics evidence from the Boulevard Place

¶385crime scene linked the gambling house and restaurant shootings to

¶386each other and to the ABG gang. The .40-caliber and .45-caliber

¶387handguns used during the gambling house shootings were also used

¶388in the Boulevard Place shootings, as was the .45-caliber handgun

¶389used during the restaurant shooting, which another ABG member

¶390(Hunter) was carrying when he and Appellant were arrested

¶391together less than a week after the restaurant shooting. In addition,

¶392the Boulevard Place shootings occurred just a few hours before the

¶393gambling house shootings and about a week before the restaurant

¶394 25 shooting. The Boulevard Place, gambling house, and restaurant

¶395incidents each involved multiple assailants working together to

¶396shoot the victims; the assailants used a silver Ford Taurus during

¶397both the Boulevard Place and gambling house shootings; and the

¶398gang expert’s testimony indicated that the three incidents were

¶399related to ABG’s gang activity.

¶400 Thus, even though the State did not charge Appellant in

¶401connection with the Boulevard Place shootings, evidence of that

¶402incident was relevant to disputed issues in the case. See OCGA § 24-

¶4034-401 (“‘[R]elevant evidence’ means evidence having any tendency to

¶404make the existence of any fact that is of consequence to the

¶405determination of the action more probable or less probable than it

¶406would be without the evidence.”); Anglin v. State, 302 Ga. 333, 337

¶407(806 SE2d 573) (2017) (explaining that evidence of the appellant’s

¶408gang membership was relevant to his motive to commit the charged

¶409crimes); United States v. Hill, 518 Fed. Appx. 744, 748 (11th Cir.

¶4102013) (rejecting the appellant’s argument that intrinsic evidence

¶411was not relevant because it did not establish that he was involved in

¶412 26 a drive-by shooting of the house of a confidential informant who

¶413provided information about the drug trade, where the evidence

¶414showed that the shooting occurred six days after the police

¶415discovered the appellant with drugs and the appellant’s phone was

¶416used to make a threatening call to the informant about an hour

¶417before the shooting). And because the Boulevard Place evidence

¶418pertained to the chain of events in this case by connecting the

¶419gambling house and restaurant incidents to each other and to

¶420Appellant and by indicating that these incidents were related to the

¶421ABG gang, the evidence was reasonably necessary to complete the

¶422story of the crimes for the jury and therefore intrinsic to the crimes

¶423charged. See, e.g., Smith, 307 Ga. at 272-273 (concluding that a

¶424witness’s statements about the appellants’ sale and use of drugs

¶425were admissible as evidence intrinsic to the charged offenses of

¶426murder and related crimes because they were reasonably necessary

¶427to complete the story of the crimes, where the statements advanced

¶428the State’s theory of the case that the charged offenses were a

¶429culmination of drug-related robberies); Fleming v. State, 306 Ga.

¶430 27 240, 245 (830 SE2d 129) (2019) (holding that evidence of the

¶431appellant’s gang affiliation was admissible as evidence intrinsic to

¶432the charged offenses of murder and other crimes because it

¶433completed the story of the crimes and enabled the State to explain

¶434his association with the shooters and his role in the crimes).

¶435 Turning to the analysis under Rule 403, the evidence of the

¶436Boulevard Place incident had significant probative value. See Olds

¶437v. State, 299 Ga. 65, 75 (786 SE2d 633) (2016) (explaining that the

¶438probative value of evidence depends in part on whether the fact it is

¶439offered to prove is disputed and on its marginal worth in proving

¶440that fact in comparison to other available proof). The State needed

¶441evidence to show the connection between Appellant, his gang

¶442membership, and the charged crimes. Only one eyewitness (Bryan)

¶443identified Appellant as a shooter at the gambling house, and

¶444Appellant argued at trial that the identification was not credible;

¶445Porter recanted his police interview statement that Appellant was

¶446at the gambling house that night; and another witness testified that

¶447he merely “believe[d]” that Appellant was the tall man shown on the

¶448 28 parking lot surveillance recordings. The evidence that Appellant

¶449was involved in the restaurant shooting was entirely circumstantial.

¶450And the only evidence that the gambling house and restaurant

¶451incidents were committed to benefit the gang was the gang expert’s

¶452rather conclusory testimony. Although the State presented evidence

¶453that Appellant was a member of ABG, during his police interview,

¶454he denied being in a gang and denied any involvement in the

¶455gambling house shootings. Beyond linking the guns used in the

¶456gambling house and restaurant shootings, the evidence of the

¶457Boulevard Place shootings (which had a more obvious gang-related

¶458motive) tended to prove Appellant’s motive and helped the State

¶459explain why Appellant committed crimes with groups of

¶460unidentified assailants against victims to whom he had no apparent

¶461connection.

¶462 The evidence of the Boulevard Place incident was also

¶463prejudicial, as is all inculpatory evidence, but in light of its

¶464significant probative value, it was not a “‘matter of scant or

¶465cumulative probative force, dragged in by the heels for the sake of

¶466 29 its prejudicial effect.’” Smith, 307 Ga. at 273 (citation omitted). See

¶467also Heade v. State, ___ Ga. ___, ___ (860 SE2d 509, 517) (2021)

¶468(“‘[I]n a criminal trial, inculpatory evidence is inherently prejudicial;

¶469it is only when unfair prejudice substantially outweighs probative

¶470value that [Rule 403] permits exclusion.’” (quoting Anglin, 302 Ga.

¶471at 337; emphasis in original)). Moreover, the prejudicial effect of the

¶472Boulevard Place evidence was mitigated by the trial court’s

¶473instruction limiting the jury’s consideration of the evidence.

¶474Although the Boulevard Place evidence was intrinsic to all of the

¶475crimes charged, the trial court instructed the jury before the

¶476evidence was presented and again during the final charge that the

¶477evidence could be considered only to prove the count of participating

¶478in criminal street gang activity and not for any other purpose. See

¶479 Heade, 860 SE2d 509, 516 (explaining that the trial court’s

¶480instruction limiting the jury’s consideration of intrinsic evidence

¶481“reduced the prejudicial impact” of the evidence). Any prejudicial

¶482effect also was reduced by the prosecutor’s acknowledgment during

¶483her opening statement that the State would not prove that

¶484 30 Appellant was present during the Boulevard Place incident. For

¶485these reasons, we see no abuse of discretion in the trial court’s

¶486implicit conclusion that the probative value of the Boulevard Place

¶487evidence was not substantially outweighed by its prejudicial effect.

¶488 Because the trial court did not abuse its discretion in admitting

¶489the Boulevard Place evidence, Appellant’s claim fails. See, e.g.,

¶490Smith, 307 Ga. at 273; Fleming, 306 Ga. at 245.

¶491 5. Although Appellant has not raised in this Court any issue

¶492about his sentencing, we have noticed that the trial court clearly

¶493erred by failing to merge the count of possession of a firearm during

¶494the commission of a felony related to the gambling house shootings

¶495(Count 11) with his conviction on the count charging use of a firearm

¶496by a convicted felon during the commission of a felony, which was

¶497also related to the gambling house shootings (Count 17). See

¶498 Atkinson v. State, 301 Ga. 518, 521 (801 SE2d 833) (2017). We

¶499therefore vacate Appellant’s conviction and sentence on Count 11.

¶500See id. See also Dixon v. State, 302 Ga. 691, 696 (808 SE2d 696)

¶501(2017) (discussing this Court’s discretion to correct obvious merger

¶502 31 errors on direct appeal).

¶503 Judgment affirmed in part and vacated in part. All the Justices concur, except LaGrua, J., disqualified.

¶504 32