¶1In the Supreme Court of Georgia
¶2 Decided: October 5, 2021
¶3 S21A0712. OVERSTREET v. THE STATE.
¶4 BETHEL, Justice.
¶5 A Ben Hill County jury found Dabrentise Overstreet 1 guilty of
¶6malice murder and other offenses in connection with the shooting
¶7death of Craigory Burch, Jr., the aggravated assault and armed
¶8robbery of Burch’s girlfriend, Jasmine Hendricks, and the
¶9aggravated assault of their son, C. B., a minor. On appeal,
¶10Overstreet argues that the evidence presented at trial was
¶11insufficient to support his convictions for malice murder and
¶12violations of the Georgia Street Gang Terrorism and Prevention Act
¶13(the “Gang Act”), that the trial court abused its discretion by
¶14 1 Although the appellant’s name appears as “Dabrentis Overstreet” on the style of the Notice of Appeal, this appears to be a misspelling, as the body of the Notice of Appeal, the indictment, and Overstreet’s brief refer to him as “Dabrentise Overstreet.” admitting certain evidence of a prior conviction and guilty plea, and
¶15that his trial counsel provided ineffective assistance by failing to
¶16move for a change of venue. We affirm. 2
¶17 2 The crimes occurred on January 20, 2016. On April 4, 2016, a Ben Hill County grand jury indicted Overstreet, Nathaniel Baker, Wayan Malik Jordan, Anjevell Vail Johnson, Keyana Dyous, Earnest Holcomb, and Rosalyn Renise Swain on the following counts: malice murder of Burch (Count 1), felony murder of Burch predicated on aggravated assault (Count 2), aggravated assault of Burch (Count 3), home invasion (Count 4), two violations of the Gang Act predicated on home invasion and armed robbery (Counts 5 and 8), armed robbery of Burch (Count 6), armed robbery of Hendricks (Count 7), aggravated assault of Hendricks (Count 9), and aggravated assault of C. B. (Count 10). Overstreet was also indicted with Baker and Jordan on four counts of possession of a firearm during the commission of a felony (Counts 11 to 14), and Baker was indicted for possession of a firearm by a convicted felon (Count 15). The other co-defendants either pled guilty and testified against Overstreet or were tried separately from Overstreet. This Court previously affirmed Baker’s and Jordan’s convictions arising from this incident. See Baker v. State, Case No. S21A0686, 2021 WL 4066966 (Ga. Sept. 8, 2021); Jordan v. State, 307 Ga. 450 (836 SE2d 86) (2019). None of the co-defendants’ cases are part of this appeal. At a jury trial held from June 26 to 30, 2017, Overstreet was found guilty of Counts 1 through 14. On July 13, 2017, the trial court sentenced Overstreet to life in prison without the possibility of parole on Count 1; a consecutive sentence of life in prison on Count 4; concurrent sentences of life in prison on Counts 6 and 7; concurrent terms of 20 years in prison each on Counts 5, 8, 9, and 10; and terms of 10 years in prison each on Counts 11, 12, and 14, to run consecutively to Count 4 and to each other. Count 2 was vacated by operation of law, and Count 3 merged with Count 1. At the State’s request, the trial court merged Count 13 with Count 12. Overstreet filed a motion for new trial on July 28, 2017, which he amended through new counsel on January 8, 2019. Following a hearing on November 12, 2019, the trial court denied Overstreet’s motion, as amended, in an order dated January 15, 2020. Overstreet filed a notice of appeal on February 12, 2020. His case was docketed to this Court’s April 2021 term and
¶18 2 1. Viewed in the light most favorable to the verdicts, the
¶19evidence presented at trial showed the following. On November 30,
¶202015, Burch won over $400,000 playing the lottery. At the time,
¶21Burch lived with his girlfriend, Hendricks, and their children in
¶22Fitzgerald. After winning the lottery, Burch bought Christmas
¶23presents for neighborhood children and gave them out at a nearby
¶24gymnasium. Burch and Hendricks bought a new house on Stubbs
¶25Avenue, and the family moved there in early January 2016. Burch
¶26also bought a new Dodge Durango.
¶27 On the afternoon of January 20, 2016, Overstreet was at
¶28Katherine Tillman’s house with Rosalyn Swain, Anjevell Johnson,
¶29Earnest Holcomb, and Wayan Jordan. Overstreet complained that
¶30he did not have any money, and Johnson suggested that they rob
¶31Burch. Overstreet then called Nathaniel Baker and asked him to
¶32bring Overstreet a gun. Overstreet “called around” seeking another
¶33gun but was unable find one. Overstreet also asked Jordan to join
¶34submitted for a decision on the briefs.
¶35 3 him.
¶36 Around 9:00 p.m. that evening, Keyana Dyous and Baker drove
¶37from Moultrie to Fitzgerald in Dyous’s silver Honda Accord. Baker
¶38was carrying an Intratec 9mm pistol (sometimes referred to as a
¶39“TEC-9”) that he had retrieved from the trunk of Dyous’s car.3 Dyous
¶40and Baker picked up Johnson, who had left Tillman’s house earlier
¶41in the evening. They all drove to Tillman’s house to attend a “G-
¶42Shine” gang meeting. When they arrived, Overstreet came out to the
¶43car, opened the trunk, removed a gun, and said “Hell yeah, boy,
¶44that’s a TEC-9.”
¶45 G-Shine is a subset of the “East Coast Bloods” street gang, and
¶46Baker, Johnson, Overstreet, Jordan, and Holcomb were all members
¶47of G-Shine. They each had nicknames, which Dyous told the police
¶48were their “Blood names.” Other members of the gang included
¶49Adonis Sharp, also known as “Knowledge,” who was considered a
¶50“Big Homie.” According to Dyous, Sharp was “at the top” of the gang
¶51 Dyous described the gun as a black “AK” that was approximately two- 3
¶52and-a-half feet long. 4 and “over” other members, including Baker, Jordan, Overstreet,
¶53Johnson, and Holcomb.
¶54 The State presented the testimony of an expert in criminal
¶55street gangs and criminal gang activity. The expert testified that a
¶56“Big Homie” is someone in the “upper echelon of the gang.” He
¶57elaborated that each gang has a different organizational structure
¶58and regulations but that the hierarchy is often similar to that used
¶59by the military or law enforcement agencies. The expert stated that
¶60a low-level “soldier” would carry out orders given by those above him
¶61in the command structure and that doing so would help a “soldier”
¶62rise in the organization. The expert testified that G-Shine is one of
¶63a number of gangs referred to as “shooters” and a “cleanup crew”
¶64who “put in work,” meaning that they enforce organizational rules,
¶65make money for the gang, and murder or harm others for the gang.
¶66The expert described G-Shine as among the most violent factions of
¶67the East Coast Bloods. He testified that if, for example, a local
¶68chapter of G-Shine was not “performing up to standards” by “putting
¶69in enough work,” gang members from nearby towns might be called
¶70 5 in to assist them.
¶71 The expert reviewed several social media posts made by
¶72Overstreet, Johnson, Holcomb, and Jordan and testified that they
¶73included photographs of members giving gang hand signs and
¶74wearing red, the color most prominently associated with the East
¶75Coast Bloods and G-Shine. A number of the posts also included
¶76common lingo associated with the East Coast Bloods gang.
¶77Photographs posted to Overstreet’s social media account showed
¶78that he had numerous gang-related tattoos. He was also known to
¶79go by the nickname “Peter Roll Shine.” That nickname indicated
¶80that he was a member of G-Shine and that he had either committed
¶81a murder or that he “can do it.”
¶82 The expert testified that a rival gang, the Gangster Disciples,
¶83often displayed the colors black and blue. The expert testified that
¶84if the Gangster Disciples had established business for themselves in
¶85a particular area, there was a likelihood of violence if members of
¶86the two gangs confronted each other. The State presented evidence
¶87that Overstreet and Johnson had been involved in an incident in
¶88 6 Sylvester with some members of the Gangster Disciples in which
¶89Johnson and Overstreet were injured and Johnson’s girlfriend’s car
¶90was damaged by gunfire.
¶91 Several members of the G-Shine gang lived in the
¶92neighborhood in Fitzgerald where Burch and Hendricks lived before
¶93Burch won the lottery. The State presented evidence that
¶94Overstreet, Johnson, and Jordan did not appreciate that Burch had
¶95bought gifts for the children in the neighborhood and stated that
¶96they wanted to rob Burch because he was “flexing” and “showing off”
¶97by handing out the gifts.
¶98 After the G-Shine meeting, which ended sometime before 11:00
¶99p.m., Dyous and Swain drove various gang members, including
¶100Overstreet, to the house of a man known as “Perp.” Overstreet,
¶101Baker, Holcomb, and Jordan got out of the car and spoke to Perp,
¶102who gave them directions to a gambling house where Burch was
¶103supposed to be. After spending about five minutes at Perp’s house,
¶104Overstreet, Johnson, Jordan, and Baker got into Dyous’ car. They
¶105put on ski masks and covered their faces with white t-shirts. Dyous
¶106 7 testified that Baker’s gun was in her front seat at this time. Holcomb
¶107got into Swain’s car, and Overstreet instructed Swain to wait on a
¶108side street. The group in Dyous’s car drove around for approximately
¶10920 to 25 minutes, but they were unable to locate the gambling house.
¶110Overstreet, Jordan, and Baker got out of the car near a local
¶111convenience store, and Dyous and Johnson drove to a nearby
¶112McDonald’s. Johnson told Dyous that he did not get out of the car
¶113with the others because he did not have a gun.
¶114 Overstreet, who was 5 feet 11 inches tall and weighed 200
¶115pounds, was wearing a black jacket. Jordan, who was 6 feet 6 inches
¶116tall and weighed 154 pounds, wore a green jacket. Baker, who was
¶1175 feet 9 inches tall and weighed 130 pounds, wore a brown jacket.
¶118 Burch and Hendricks were at their new home with their
¶119children. While watching television, Hendricks heard a gunshot,
¶120and three men forcibly entered the home. Once inside the home, two
¶121of the men stayed in the living room while the third went into the
¶122kitchen. All three men had face coverings, and each had a gun. The
¶123“buff,” “stocky and short” man had a long, black gun, approximately
¶124 8 two-and-a-half to three feet long, and he repeatedly asked, “Where
¶125the money at?” One of the three intruders, who was tall and
¶126“skinny,” held Hendricks at gunpoint and took three cell phones and
¶127her wallet, which contained about $200. Burch was holding C. B.
¶128while sitting on the couch, and the “buff” man was pointing a gun at
¶129them. After the intruders asked Burch for money, he attempted to
¶130give the “buff” man his jeans. The man then shot Burch in the knee
¶131twice. Burch yelled, “Don’t do this in front of my kids.”
¶132 The men left the home approximately two to three minutes
¶133later. Burch was still alive at this time and was still holding C. B.
¶134However, after the men left the home, Hendricks and Burch saw
¶135that someone had turned on the lights of their Dodge Durango,
¶136which was parked in the driveway. The “buff” man then came back
¶137inside the home, shot Burch five more times in the thighs and chest,
¶138then left with the other two men. C. B. was sitting on the couch and
¶139began to cry. After the men left, Hendricks looked outside and saw
¶140the “buff” man standing near a stop sign and speaking on a phone.
¶141Hendricks then saw a silver Honda with tinted windows ride past
¶142 9 the house.
¶143 Hendricks went outside with C. B. and one of her other children
¶144and asked a neighbor for help. 4 Hendricks called 911 from her
¶145neighbor’s phone, and then the neighbor drove Hendricks and the
¶146children to a nearby convenience store and waited for the police to
¶147arrive.
¶148 Two other neighbors, Jan Bagley and Wayne Shavers, stated
¶149that they heard gunshots during the time of the incident. After
¶150hearing two sets of gunshots, Bagley walked outside and noticed
¶151that the Durango’s taillights were on. Wayne Shavers saw three
¶152men running outside after he heard the gunshots. He described one
¶153of the men as around 6 feet 3 inches tall, and the other two as around
¶1545 feet 9 inches tall. Shivers also stated that he saw one of the three
¶155men run from the Durango. Two of the men were wearing dark
¶156clothing. Shivers later identified the other man, who was wearing a
¶157green hooded sweatshirt as he fled from Burch’s house, as Jordan.
¶158 Law enforcement officers responded to a 911 call and came to
¶159 4 The third child was still asleep in a bedroom inside the house. 10 the house on Stubbs Avenue around midnight. When they arrived,
¶160Burch did not have a pulse. During their investigation of the crime
¶161scene, officers found multiple fingerprints, some of which were later
¶162matched to Baker. The police recovered one 9mm bullet and four
¶1639mm shell casings from the living room where Burch was shot and
¶164several 9mm bullet fragments and seven 9mm shell casings from the
¶165home’s kitchen and the hallway between the kitchen and living
¶166room. All of the shell casings collected from the crime scene were
¶167consistent with having been fired from a single Intratec 9mm pistol.
¶168 The medical examiner testified that Burch was shot seven
¶169times, each from the front, and he died as the result of those
¶170gunshots. The manner of death was homicide.
¶171 Dyous testified that a few minutes after she dropped off
¶172Overstreet, Jordan, and Baker, Baker called her and told her to
¶173come back and pick them up. As Dyous drove back to the location at
¶174which she dropped them off, she saw Overstreet, Baker, and Jordan
¶175walking down the road. Baker got in her car while Overstreet and
¶176Jordan continued on foot. Baker then told Dyous to drive around the
¶177 11 block. Dyous drove by Burch and Hendricks’s house, and Dyous saw
¶178Hendricks on the porch saying “help.” Dyous stopped the car, but
¶179Baker hit her and began “cussing and just having a fit.” Dyous then
¶180drove herself, Johnson, and Baker back to Tillman’s house.
¶181 After the shooting, Overstreet called Swain and told her to pick
¶182up him and Jordan. Overstreet came to the car carrying Baker’s
¶183TEC-9, and he and Jordan got in the car. Swain, Holcomb,
¶184Overstreet, and Jordan then drove back to Tillman’s house.
¶185 At Tillman’s house, Overstreet was still holding the TEC-9.
¶186Overstreet later came outside and put the gun in the trunk of
¶187Dyous’s car. Inside, Overstreet bragged about shooting Burch in the
¶188chest and legs and said that he would kill anyone who “said
¶189anything.” He also made fun of Jordan for not knowing how to start
¶190the Durango. Those inside also mocked Johnson and Holcomb for
¶191being “scared” and staying in the cars with Dyous and Swain. Dyous
¶192testified that she saw Overstreet with a wallet, red bank cards, and
¶193a phone inside Tillman’s home. Swain also saw two cell phones, a
¶194woman’s wallet, and $200 in cash, and she overheard the men
¶195 12 talking about getting money with a debit card they had stolen.
¶196Overstreet and Johnson then went outside and broke the cell
¶197phones.
¶198 After the meeting at Tillman’s house broke up, Dyous drove
¶199Overstreet, Baker, and Johnson back to Moultrie via Tifton. As they
¶200drove, one of the men threw the cell phone that Dyous had seen out
¶201the window. The group stopped to buy gas in Tifton, which Baker
¶202paid for in cash. Overstreet told everyone in the car that he had
¶203killed Burch and had intended to kill Hendricks, but that the gun he
¶204was carrying had jammed. Baker told the group inside the car that
¶205he kicked in the door to Burch’s house and that Overstreet shot
¶206Burch. Baker also said that he planned to hide the guns used in the
¶207shooting with another member of the gang. A public works employee
¶208later recovered a debit card belonging to Burch from a drainage ditch
¶209along the side of a road in south Tifton.
¶210 The group arrived in Moultrie around 1:00 a.m., and they
¶211 13 stayed at a hotel called the Town Terrace. 5 Either Baker or Johnson
¶212paid for the room in cash. Dyous testified that Overstreet was gone
¶213when she woke up the next morning. Swain picked up Overstreet
¶214from the hotel in Moultrie that morning. On the way back to
¶215Fitzgerald, Overstreet said he “rolled the guy” and “let him hold
¶216nine,” meaning he had shot Burch nine times. Swain and Overstreet
¶217then discussed a plan to fabricate alibis for themselves and to blame
¶218the shooting on someone else.
¶219 Overstreet was later arrested on unrelated charges. While in
¶220custody and after receiving Miranda 6 warnings, he was interviewed
¶221by the police on February 15 and March 16, 2016. In the first
¶222interview, Overstreet claimed that he was in Tifton at the time
¶223Burch was killed, but he admitted being a member of G-Shine.
¶224Overstreet also admitted that he had been involved in a different
¶225 5 The police obtained cell-site location data showing that Dyous’s phone had traveled from Moultrie to Fitzgerald (through Tifton) and back to Moultrie (again through Tifton) on the night of the crimes. The data also show that Overstreet’s cell phone moved from Fitzgerald to Tifton to Moultrie in the hours after the shooting. A cell phone associated with Burch also traveled from Fitzgerald to an area near Tifton in the early morning hours of January 21. 6 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
¶226(1966). 14 shooting in Sylvester involving the Gangster Disciples and a
¶227shooting at a club in Fitzgerald. At trial, the State introduced
¶228documents showing that Overstreet pled guilty to aggravated
¶229assault, aggravated battery, unlawful possession of a firearm, and
¶230violations of the Gang Act based on the shooting at the club. 7
¶231 At trial, the State also presented recordings of Overstreet
¶232speaking with Swain on two calls he placed from the jail on March
¶23316 after his police interview that day. In those calls, Overstreet told
¶234Swain that people were “talking,” that the police would want to
¶235interview her, and that she should not say anything. Overstreet
¶236later wrote a letter to Swain after she made a court appearance. In
¶237the letter, Overstreet said Swain had done some “dumb a** crazy
¶238a** sh** that you know damn well you shouldn’t have did.” The
¶239letter also stated that Swain had done things she would “regret.”
¶240Swain considered the letter to be threatening her for speaking with
¶241a detective.
¶242 7 In his second interview, Overstreet continued to insist that he had been in Tifton at the time of the home invasion and shooting of Burch. 15 (a) Overstreet first contends that the evidence presented at
¶243trial was insufficient as a matter of constitutional due process to
¶244support his conviction for malice murder. See Jackson v. Virginia,
¶245443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
¶246 A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. The State, of course, must prove malice beyond a reasonable doubt to convict someone of malice murder, as malice incorporates the intent to kill. Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof, while malice is implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart. The malice necessary to establish malice murder may be formed in an instant, as long as it is present at the time of the killing. It is for a jury to determine from all the facts and circumstances whether a killing is intentional and malicious.
¶247(Citations and punctuation omitted.) Benton v. State, 305 Ga. 242,
¶248244 (1) (a) (824 SE2d 322) (2019); see also OCGA § 16-5-1 (a).
¶249 Overstreet argues that his conviction largely rested upon the
¶250testimony of Dyous and Swain, whom he characterizes as the State’s
¶251key witnesses against him. Overstreet argues that Dyous and Swain
¶252 16 provided inconsistent and contradictory testimony at trial and
¶253contends that they both admitted that they repeatedly lied to
¶254investigators. He also contends that their testimony was further
¶255undermined by statements made by other co-defendants about their
¶256involvement in the crimes and a lack of forensic evidence from the
¶257crime scene tying Overstreet to the shooting. Overstreet also
¶258suggests that both witnesses expected leniency in their own cases in
¶259exchange for their testimony against Overstreet.
¶260 However, we have long held that “[i]t is the jury’s role to resolve
¶261conflicts in the evidence and determine the credibility of witnesses.”
¶262Smith v. State, 280 Ga. 161, 162 (1) (625 SE2d 766) (2006).
¶263Specifically, questions about the reliability of a witness’s testimony
¶264are “matters within the province of the jury to consider and decide.”
¶265McKelvey v. State, 311 Ga. 34, 39 (2) (855 SE2d 598) (2021). “This
¶266Court does not reweigh evidence or resolve conflicts in testimony;
¶267instead, evidence is reviewed in a light most favorable to the verdict,
¶268with deference to the jury’s assessment of the weight and credibility
¶269of the evidence.” (Citations and punctuation omitted.) Harris v.
¶270 17 State, 304 Ga. 276, 278 (1) (818 SE2d 530) (2018).
¶271 Viewed in that light, the evidence showed that on the day of
¶272the shooting, Overstreet complained that he had no money, and
¶273Jordan suggested that they rob Burch, who had recently won the
¶274lottery. The evidence further showed that Overstreet, Jordan, and
¶275Baker went to Burch’s home armed with several guns. The evidence
¶276authorized the jury to determine that after breaking into Burch’s
¶277house, Jordan held Hendricks at gunpoint while Baker began
¶278searching the house. The evidence, including Overstreet’s
¶279statements bragging about the shooting to others involved in the
¶280crimes, also authorized the jury to determine that Overstreet then
¶281shot Burch several times after demanding money from him. Thus,
¶282the evidence presented at trial was sufficient to sustain Overstreet’s
¶283malice murder conviction. See McKelvey, 311 Ga. at 39 (2) (affirming
¶284malice murder conviction where evidence, including the defendant’s
¶285own statements, identified defendant as shooter and established a
¶286motive for the shooting); see also Jordan v. State, 307 Ga. 450, 452
¶287(1) (836 SE2d 86) (2019) (affirming malice murder conviction of
¶288 18 Overstreet’s co-defendant Jordan based on evidence that Overstreet
¶289shot and killed Burch and that Jordan shared Overstreet’s criminal
¶290intent to commit the crime).
¶291 (b) Overstreet next argues that the evidence presented at trial
¶292was insufficient to support his convictions under the Gang Act. We
¶293disagree.
¶294 Overstreet was convicted of two counts of violating the Gang
¶295Act by participating in criminal gang activity through the
¶296commission of home invasion and an armed robbery as a member of
¶297the G-Shine criminal street gang. See OCGA §§ 16-15-4 (a) (“It shall
¶298be unlawful for any person employed by or associated with a
¶299criminal street gang to conduct or participate in criminal gang
¶300activity through the commission of any offense enumerated in
¶301paragraph (1) of Code Section 16-15-3”); 16-15-3 (1) (J) (enumerated
¶302offenses include any criminal offense that involves violence or the
¶303use of a weapon). To convict Overstreet, the State had to prove
¶304beyond a reasonable doubt that Overstreet was associated with G-
¶305Shine, that G-Shine was a “criminal street gang” within the
¶306 19 meaning of the Gang Act, that Overstreet committed the predicate
¶307acts of home invasion and armed robbery, and that the commission
¶308of those offenses was intended to further the interests of the G-Shine
¶309gang. See McGruder v. State, 303 Ga. 588, 591-592 (II) (814 SE2d
¶310293) (2018); Jones v. State, 292 Ga. 656, 659 (1) (b) (740 SE2d 590)
¶311(2013). The State presented sufficient evidence of each of these
¶312elements at trial.
¶313 At trial, the State presented evidence, including Overstreet’s
¶314own statements, that Overstreet was a member of G-Shine, which is
¶315a subset of the Bloods. The evidence also established that Overstreet
¶316and other individuals identified as members of the gang, including
¶317Baker, Jordan, Johnson, and Holcomb, each had nicknames that one
¶318witness described as their “Blood names.” There was also extensive
¶319expert testimony and other evidence regarding the Bloods’
¶320organizational structure. The State’s gang expert testified that G-
¶321Shine is one of a number of gangs referred to as “shooters” and a
¶322“cleanup crew” who “put in work,” meaning that they enforce
¶323organizational rules, make money for the gang, and murder or harm
¶324 20 others for the Bloods gang. The expert described G-Shine as among
¶325the most violent factions of the East Coast Bloods. Through the
¶326expert, the State also introduced social media posts made by
¶327Overstreet and other G-Shine members that featured gang lingo and
¶328photographs of members, including Overstreet, displaying gang-
¶329related tattoos, giving gang hand signs, and wearing red, the color
¶330most prominently associated with the East Coast Bloods and G-
¶331Shine. Testimony also established that Overstreet was known to go
¶332by the nickname “Peter Roll Shine,” which indicated that he was a
¶333member of G-Shine and that he had either committed a murder or
¶334that he “can do it.” This evidence authorized the jury to find the
¶335existence of the G-Shine gang as a subset of the Bloods and that
¶336Overstreet was a member. See OCGA § 16-15-3 (3) (providing that
¶337the existence of a gang “may be established by evidence of a common
¶338name or common identifying signs, symbols, tattoos, graffiti, or
¶339attire or other distinguishing characteristics” and defining a
¶340“criminal street gang” as “any organization, association, or group of
¶341three or more persons associated in fact, whether formal or informal,
¶342 21 which engages in criminal gang activity”).
¶343 Regarding the third element, the evidence presented at trial
¶344authorized the jury to determine that Overstreet committed both
¶345predicate offenses for the Gang Act violations with which he was
¶346charged. From the evidence presented at trial, the jury was
¶347authorized to determine that Overstreet committed the offenses of
¶348home invasion (as defined in OCGA § 16-7-5) and armed robbery (as
¶349defined in OCGA § 16-8-41 (a)). See Rodriguez v. State, 284 Ga. 803,
¶350810 (4) (671 SE2d 497) (2009) (“To support a conviction, the accused
¶351must be shown to have conducted or participated in criminal street
¶352gang activity through the commission of an actual criminal act.”
¶353(citation and punctuation omitted)).
¶354 To satisfy the fourth and final element of the violations of the
¶355Gang Act, the State had to prove that “the commission of the
¶356predicate act[s] was intended to further the interests of the [gang].”
¶357(Citation and punctuation omitted.) Stripling v. State, 304 Ga. 131,
¶358134 (816 SE2d 663) (2018). To do so, the State had to show “some
¶359nexus between the act[s] and an intent to further street gang
¶360 22 activity.” Rodriguez, 284 Ga. at 807 (1). In cases under the Gang Act,
¶361as with other criminal cases, “[c]riminal intent is a question for the
¶362jury and may be inferred from conduct before, during[,] and after the
¶363commission of the crime.” (Citation and punctuation omitted.) Boyd
¶364v. State, 306 Ga. 204, 210-211 (1) (b) (830 SE2d 160) (2019).
¶365 Here, the evidence authorized the jury to determine that
¶366Overstreet committed the home invasion and armed robbery in
¶367furtherance of the G-Shine gang. Both offenses were planned and
¶368executed with other members of G-Shine following a meeting of gang
¶369members earlier in the evening. Overstreet and the other gang
¶370members then regrouped at the site of the meeting after the incident
¶371at Burch’s house with the proceeds from the robbery. While there,
¶372Overstreet said that he would kill anyone who “said anything.” See
¶373Boyd, 306 Ga. at 211-212 (1) (b) (noting that evidence that gang
¶374members “worked together” to commit the predicate offenses and
¶375avoid getting caught helped to satisfy the fourth element).
¶376 There was also evidence that, prior to that night, several G-
¶377Shine members were upset by Burch’s act of giving Christmas gifts
¶378 23 to children after he won the lottery and that they wanted to rob
¶379Burch because he was “flexing” and “showing off” by handing out the
¶380gifts. This evidence, along with Overstreet’s statements about
¶381wanting to rob someone because he needed money, could be
¶382interpreted as establishing merely personal, as opposed to gang-
¶383related, motives for the home invasion and armed robbery. However,
¶384that issue was for the jury to resolve, and the evidence here
¶385authorized the jury to infer that the home invasion and armed
¶386robbery were committed to further the interests of the G-Shine gang.
¶387See Dixon v. State, 309 Ga. 28, 34 (1) (843 SE2d 806) (2020)
¶388(evidence that crimes were in retaliation for action that was
¶389disrespectful of the gang authorized jury to determine that crimes
¶390were in furtherance of the gang’s interests); In the Interest of W. B.,
¶391342 Ga. App. 277, 282 (801 SE2d 595) (2017) (“Evidence showing
¶392that a crime was done in retaliation for some act or insult committed
¶393against the gang or its members will also serve to show that the
¶394crime furthered the gang’s interests.” (citations omitted)); see also
¶395Boyd, 306 Ga. at 211 (1) (b) (noting that the jury is empowered to
¶396 24 weigh competing evidence of the motive for committing the predicate
¶397offenses to determine whether there is a nexus between the crimes
¶398and the gang’s interests). Based on this evidence, the jury was
¶399authorized to find Overstreet guilty of the two violations of the Gang
¶400Act. His challenge to the sufficiency of the evidence presented as to
¶401those two counts therefore fails.
¶402 2. Overstreet next asserts that the trial court abused its
¶403discretion by admitting testimony from a Fitzgerald police officer
¶404regarding Overstreet’s guilty plea to several crimes arising from a
¶405shooting incident with members of a rival gang that occurred a few
¶406weeks before Burch’s shooting. Overstreet argues that, even
¶407assuming this evidence was otherwise admissible, its prejudicial
¶408impact “far” outweighed its probative value and should have been
¶409excluded under OCGA § 24-4-403. We disagree.
¶410 OCGA § 24-4-403 provides that
¶411 [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.
¶412 25 Exclusion of relevant evidence under this rule is an “extraordinary
¶413remedy, which should be used only sparingly, and the balance
¶414should be struck in favor of admissibility.” (Citation omitted.) Anglin
¶415v. State, 302 Ga. 333, 337 (3) (806 SE2d 573) (2017). Thus, in
¶416reviewing issues under this rule, courts “look at the evidence in a
¶417light most favorable to its admission, maximizing its probative value
¶418and minimizing its undue prejudicial impact.” (Citation omitted.) Id.
¶419Trial court decisions under this rule regarding the admission of
¶420evidence of gang activity and membership are reviewed for an abuse
¶421of discretion. See id. at 336-337 (3).
¶422 As we have previously explained, “[a]lthough evidence of gang
¶423membership can be highly prejudicial, all inculpatory evidence is
¶424inherently prejudicial; it is only when unfair prejudice substantially
¶425outweighs probative value that the rule permits exclusion.”
¶426(Citations, punctuation, and emphasis omitted.) Middlebrooks v.
¶427State, 310 Ga. 748, 751 (2) (b) (854 SE2d 503) (2021). Here, as
¶428Overstreet appears to concede, the evidence of the prior incident
¶429 26 with the rival gang (including Overstreet’s guilty plea to crimes
¶430arising from it) was admissible under OCGA §§ 16-15-9 8 and 24-4-
¶431418 (a)9 and, along with other evidence, helped the State establish
¶432both the existence of the G-Shine gang and Overstreet’s membership
¶433and role in it. As discussed above, both showings were required to
¶434prove that Overstreet violated the Gang Act, as alleged in the
¶435indictment. Thus, the evidence was clearly probative of Overstreet’s
¶436 8 OCGA § 16-15-9 provides that [f]or the purpose of proving the existence of a criminal street gang and criminal gang activity, the commission, adjudication, or conviction of any offense enumerated in paragraph (1) of Code Section 16-15-3 by any member or associate of a criminal street gang shall be admissible in any trial or proceeding. Evidence offered under this Code section shall not be subject to the restrictions in paragraph (22) of Code Section 24-8-803. Although we held in State v. Jefferson, 302 Ga. 435, 441-443 (807 SE2d 387) (2017), that the Confrontation Clause of the Sixth Amendment to the United States Constitution is violated when convictions of other people are admitted against a defendant under this statute, we explained that “nothing about this scenario can be read to suggest that a particular defendant’s prior conviction could not be used against that same defendant in his or her own case under the proper circumstances.” 9 OCGA § 24-4-418 (a) provides that
¶437 [i]n a criminal proceeding in which the accused is accused of conducting or participating in criminal gang activity in violation of Code Section 16-15-4, evidence of the accused’s commission of criminal gang activity, as such term is defined in Code Section 16- 15-3, shall be admissible and may be considered for its bearing on any matter to which it is relevant. 27 guilt as to those offenses. Moreover, while there was other evidence
¶438regarding the gang and Overstreet’s participation in it (including
¶439Overstreet’s own statements), thus somewhat reducing the State’s
¶440need for this evidence, we cannot say that evidence of the incident
¶441with the rival gang was confusing, misleading, or unduly cumulative
¶442of the other evidence or that the trial court otherwise abused its
¶443discretion in performing the balancing required by OCGA § 24-4-
¶444403. See Anglin, 302 Ga. at 337 (3) (determining that the trial court
¶445did not abuse its discretion under Rule 403 by admitting evidence of
¶446defendant’s gang activity). This enumeration of error therefore fails.
¶447 3. Finally, Overstreet contends that his trial counsel provided
¶448constitutionally ineffective assistance by failing to move for a change
¶449of venue. Overstreet argues that Burch’s killing received
¶450“widespread pretrial publicity” and was so “high profile and
¶451notorious” in the community that it was impossible for him to receive
¶452a fair trial in Ben Hill County. Overstreet also argues that local
¶453publicity, the relatively small size of the community, the fact that
¶454Burch was a “very sympathetic” and generous individual, and the
¶455 28 familiarity of prospective jurors with the case showed that he was
¶456actually prejudiced by the trial being conducted in Ben Hill County
¶457before the jury that was selected. Based on these contentions, he
¶458argues that a motion for change of venue would have been granted
¶459had counsel filed one and that his counsel performed deficiently by
¶460not doing so. We disagree with each of these contentions and reject
¶461his claim of ineffective assistance of counsel.
¶462 To prevail on this claim, Overstreet
¶463 has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [Overstreet] must show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [Overstreet] must show a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one.
¶464(Punctuation omitted.) Stuckey v. State, 301 Ga. 767, 771 (2) (804
¶465SE2d 76) (2017) (citing Strickland v. Washington, 466 U. S. 668, 687
¶466(104 SCt 2052, 80 LE2d 674) (1984)). “A strong presumption exists
¶467 29 that counsel’s conduct falls within the broad range of professional
¶468conduct.” (Citation omitted.) Ford v. State, 298 Ga. 560, 566 (8) (783
¶469SE2d 906) (2016).
¶470 “The decision whether to file a motion for change of venue, as
¶471with other motions, is a matter of trial strategy or tactics.” (Citation
¶472and punctuation omitted.) Wilson v. State, 286 Ga. 141, 143 (3) (686
¶473SE2d 104) (2009). “[A] defendant who contends a strategic decision
¶474constitutes deficient performance must show that no competent
¶475attorney, under similar circumstances, would have made it.”
¶476(Citation and punctuation omitted.) Burrell v. State, 301 Ga. 21, 25
¶477(2) (d) (799 SE2d 181) (2017).
¶478 Moreover, because trial counsel cannot be deficient for failing to file a meritless motion, [Overstreet] would have to show that a motion to change venue would have been granted had counsel made the motion. To prevail on a motion to change venue, a defendant must show either that . . . the setting of the trial was inherently prejudicial or the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.
¶479Mims v. State, 304 Ga. 851, 858-859 (2) (c) (823 SE2d 325) (2019).
¶480 (a) Overstreet presented no evidence to the trial court
¶481 30 regarding the reason his trial counsel did not move for a change of
¶482venue or evidence that venue in another county would have been
¶483more favorable to the defense. Overstreet thus presented nothing to
¶484show that no competent attorney, under similar circumstances,
¶485would have made the same decision. See Mims, 304 Ga. at 858 (2)
¶486(c) (noting that even when defense counsel consciously chooses not
¶487to move for a change of venue, the appellant must show that no
¶488competent attorney, under similar circumstances, would have made
¶489the same decision).
¶490 (b) With respect to Overstreet’s contention that a motion for
¶491change of venue would have been granted had trial counsel filed one,
¶492the record shows the following. Jury selection for Overstreet’s trial
¶493was conducted by questioning of panels of 14 potential jurors at a
¶494time. The jury was selected after both the prosecution and defense
¶495questioned three such panels.
¶496 The prosecutor acknowledged during jury selection that there
¶497had been local news coverage of the case and that there had been
¶498posts about the case on various social media. Each of the prospective
¶499 31 jurors who were interviewed acknowledged that they had heard
¶500about the case in some way, either by reading about it in the
¶501newspaper or on social media, watching local television reports, or
¶502hearing friends, neighbors, or others discussing the case. Several
¶503prospective jurors indicated that they knew the victims, potential
¶504witnesses, Overstreet’s co-defendants, or family members of the
¶505witnesses or co-defendants. The record also shows that the wife of
¶506one prospective juror had been on the jury when one of Overstreet’s
¶507co-defendants was tried.10 The prosecutor, defense counsel, and
¶508several prospective jurors acknowledged that the case was “sad” and
¶509“emotional.”
¶510 The record shows, however, that only one prospective juror was
¶511excused for cause based upon her pre-trial knowledge of the case
¶512that she could not set aside.11 Each of the remaining prospective
¶513 10 During voir dire, this prospective juror said that his wife had told him about the case after the trial but that he would be able to base his verdict solely on the evidence presented in the courtroom and be fair and impartial to both sides. This prospective juror was not selected for the panel. 11 Four other prospective jurors were excused for cause because they
¶514were related to the victims or members of the district attorney’s staff. Five
¶515 32 jurors explained to the parties and the trial court that they could set
¶516aside their prior knowledge of the case and their familiarity with
¶517people associated with the case, decide the case based upon the
¶518evidence, and be fair and impartial to both Overstreet and the State.
¶519Each member of the jury that was empaneled reaffirmed this
¶520statement under oath.
¶521 (i) Based on the record before us, Overstreet cannot
¶522demonstrate that the setting of the trial in Ben Hill County was
¶523inherently prejudicial such that a motion for new trial would have
¶524been granted had his trial counsel filed one. Although there was
¶525evidence of press coverage and other publicity surrounding the case,
¶526Overstreet has not established that what he characterizes as
¶527widespread pre-trial publicity “contained information that was
¶528unduly extensive, factually incorrect, inflammatory or reflective of
¶529an atmosphere of hostility.” (Citation omitted.) Powell v. State, 297
¶530Ga. 352, 354 (2) (773 SE2d 762) (2015) (noting that cases of inherent
¶531additional jurors were excused for causes unrelated to pre-trial publicity or knowledge of the case, including religious beliefs, medical issues, personal obligations, or ineligibility. 33 prejudice are “extremely rare”). His trial counsel was not called to
¶532testify at the hearing on the motion for new trial, and other than the
¶533prospective jurors’ general responses to questioning during jury
¶534selection, he has offered no evidence “that the pretrial publicity was
¶535so pervasive as to render the trial setting inherently prejudicial.”
¶536Powell, 297 Ga. at 355 (2).
¶537 (ii) Overstreet has likewise failed to establish that, due to pre-
¶538trial publicity, holding the trial in Ben Hill County actually
¶539prejudiced him such that a motion for change of venue would have
¶540been granted had counsel filed one. “[T]he key question in this
¶541context is whether those jurors who had heard about the case could
¶542lay aside their opinions and render a verdict based on the evidence.”
¶543(Citation omitted.) Mims, 304 Ga. at 859 (2) (c). Here, although each
¶544prospective juror had heard about the case in some way prior to jury
¶545selection, each of the jurors who were ultimately empaneled
¶546affirmed during voir dire that they could set aside what they had
¶547learned about the case outside the courtroom and render a verdict
¶548based solely on the evidence presented. The only juror who
¶549 34 expressed any sort of “fixed bias” regarding the case was excused for
¶550cause. See Powell, 297 Ga. at 355 (2). Because Overstreet has
¶551presented no evidence suggesting that the jurors decided the case
¶552based on something other than the evidence presented at trial, he
¶553cannot establish that he was actually prejudiced by being tried in
¶554Ben Hill County. See Mims, 304 Ga. at 859 (2) (c).
¶555 (iii) In light of these determinations, Overstreet cannot
¶556establish that a motion to change venue would have been granted.
¶557He therefore cannot establish that trial counsel performed
¶558deficiently by failing to file one. This claim of ineffective assistance
¶559of counsel fails.
¶560 Judgment affirmed. All the Justices concur.
¶561 35