Roberts v. State

¶1 SUPREME COURT OF GEORGIA

¶2 November 2, 2022

¶3 The Honorable Supreme Court met pursuant to adjournment.

¶4The following order was passed:

¶5 Upon consideration, the Court has revised the deadline for motions for reconsideration in this matter. It is ordered that a motion for reconsideration, if any, including motions submitted via the Court’s electronic filing system, must be received in the Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022.

¶6 SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta

¶7 I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

¶8 , Clerk  NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

¶9In the Supreme Court of Georgia

¶10 Decided: November 2, 2022

¶11 S22A0420. ROBERTS v. THE STATE.

¶12 PINSON, Justice.

¶13 Melvin Roberts was convicted of malice murder and other

¶14crimes in connection with the shooting death of Jabari Pettway. 1 On

¶15appeal, Roberts contends that the trial court erred in admitting

¶16evidence of an armed robbery he allegedly committed nine days

¶17 1The crimes were committed on November 1, 2016. Roberts was indicted by a Gwinnett County grand jury on February 1, 2017 on one count each of malice murder, felony murder, aggravated assault, and theft by taking. Roberts was tried before a jury in May 2018. After the close of the State’s evidence, the trial court granted a directed verdict as to felony-level theft by taking because the State had failed to prove the value of the object of the theft—Pettway’s car—and that count was converted to a misdemeanor. At the conclusion of trial, the jury found Roberts guilty on all counts. On May 23, 2018, Roberts was sentenced to life in prison without the possibility of parole for the malice murder, plus a concurrent 12-month term for the misdemeanor theft by taking. The felony murder was vacated by operation of law, and the aggravated assault merged into the malice murder. Roberts filed a timely motion for new trial on May 25, 2018, which he amended in March and April of 2021. The parties agreed to proceed on the motion without a hearing, and the motion was denied on September 14, 2021. That same day, Roberts filed his notice of appeal. The appeal was thereafter docketed to the April 2022 term of this Court and was submitted for a decision on the briefs. 1 before the murder. That evidence included a shell casing that testing

¶18showed was discharged from the same gun as casings from

¶19Pettway’s murder, as well as testimony from the armed-robbery

¶20victim identifying Roberts as the one who possessed, shot, and left

¶21with the gun. The trial court admitted all of the armed-robbery

¶22evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”) for the purpose

¶23of proving Roberts’s identity as the murderer.

¶24 We affirm on a different legal basis. A limited portion of the

¶25physical evidence and testimony from the armed robbery placed the

¶26murder weapon in Roberts’s hands just nine days before Pettway’s

¶27murder. That limited evidence was not subject to Rule 404 (b)

¶28because it was admissible as evidence intrinsic to the charged crime.

¶29The same cannot be said for the armed-robbery evidence as a whole,

¶30but any error in admitting evidence of the robbery beyond the

¶31intrinsic portion was harmless, because the evidence against

¶32Roberts that was properly admitted was quite strong, and the court’s

¶33limiting instruction about the armed-robbery evidence mitigated the

¶34chance that the jury considered the extraneous details of the

¶35 2 robbery.

¶36 1. Facts

¶37 (a) Around 7:30 p.m. on November 1, 2016, 23-year-old Jabari

¶38Pettway left the Duluth apartment he shared with his brother,

¶39Marqueze Marshall, in his 2012 silver Dodge Avenger. Marshall

¶40testified that his brother was going to meet a friend and that he left

¶41carrying a red book bag, along with his wallet and cell phone. Later

¶42that evening, around 9:55 p.m., Pettway called Marshall to tell him

¶43he was on his way home. But Pettway never made it home. The next

¶44morning, after trying to reach Pettway, Marshall called their

¶45mother, Casandra Mosley, to let her know Pettway was missing.

¶46 Mosley testified that Marshall called her around noon on

¶47November 2 and told her that Pettway had not come home the night

¶48before and had not shown up for work or school that day. After

¶49calling local hospitals, Mosley called Pettway’s cell phone carrier

¶50and got a list of Pettway’s recent calls. Mosley and Pettway’s sister,

¶51Renee Hunter, started calling the numbers on the list, and both

¶52eventually spoke to Roberts, whom Pettway had known in high

¶53 3 school. Roberts told both Mosley and Hunter that he had seen

¶54Pettway the evening before, that Pettway had planned to return to

¶55Roberts’s home later that night but never did, and that he had not

¶56been able to reach Pettway. Later that day, Roberts texted both

¶57Mosley and Hunter to say he was “praying for” them.

¶58 In the meantime, Gwinnett County police had been called to

¶59respond around 8:00 a.m. that morning after the body of an

¶60unidentified male was discovered in Snellville on the edge of a

¶61Gwinnett County farm abutting Lenora Road. The man was dead,

¶62having been shot multiple times in the back. At the scene,

¶63investigators recovered five .40-caliber shell casings and two

¶64cigarette butts. The cigarette butts were distinctive because they

¶65had been smoked past the filter. The victim’s left front pants pocket

¶66was pulled out, and no car keys, wallet, or cell phone were found at

¶67the scene.

¶68 The victim of the shooting was later identified as Pettway. The

¶69medical examiner testified that he had suffered five gunshot

¶70wounds, one to the arm and four to the back, and opined that the

¶71 4 manner of death was homicide.

¶72 Witness Jimmy Beaver testified that late in the evening on

¶73November 1, he was watching the World Series on television at his

¶74Snellville home on Lenora Road when he heard a car drive past,

¶75heading in the direction of where the paved road turned to gravel. A

¶76few minutes later, he heard a single gunshot, followed by a one- to

¶77two-second pause, and then four rapid-fire shots. About two minutes

¶78after that, he heard a car speed back up the gravel road, hit the

¶79pavement, and drive away.

¶80 Based on Beaver’s report that the shots were fired during the

¶81sixth inning of the World Series game, the lead investigator in the

¶82case, Corporal Shannon Kulnis, determined that the shooting had

¶83occurred between 10:00 and 10:30 p.m. Investigators became

¶84interested in Roberts because of his apparent interactions with

¶85Pettway just before the murder. Cell-tower records indicated that a

¶86phone call Pettway placed at 9:49 p.m. “pinged” from the same cell

¶87tower as a call Roberts placed at 9:38 p.m., indicating that they were

¶88together shortly before the murder. This cell tower was near the site

¶89 5 where Pettway’s body was found.

¶90 Corporal Kulnis determined that Roberts had an outstanding

¶91arrest warrant. After using cell-tower records to locate Roberts,

¶92police made a traffic stop, took him into custody, and confiscated his

¶93cell phone. An inventory search of his car turned up boxes of

¶94Newport cigarettes and a Samsung Galaxy cell-phone box.

¶95 (b) At the police station, Roberts waived his rights under

¶96Miranda 2 and agreed to speak with investigators. In the video-

¶97recorded interview, Roberts admitted that he had been with Pettway

¶98earlier on the night of the murder, but he denied any involvement

¶99in the shooting. He admitted that he and Pettway had been

¶100intermittent sexual partners over the previous two years. On the

¶101evening of the murder, Roberts said, Pettway had come to his home

¶102in Lawrenceville, where they “did sexual things.” They then left to

¶103buy cigarettes, and after that, Roberts said, they parted ways.

¶104Roberts said he had expected Pettway to return later that evening,

¶105but Pettway never showed up.

¶106 2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 6  Cell-tower records showed Roberts’s and Pettway’s phones

¶107pinging off the same tower near Roberts’s Lawrenceville apartment

¶108at 7:29 p.m. and at various times until 9:21 p.m. Surveillance video

¶109from a Citgo gas station in Lawrenceville showed the pair arriving

¶110there at 9:17 p.m., Roberts in his blue Hyundai Sonata and Pettway

¶111in his silver Dodge Avenger. The video showed Roberts buying

¶112Newport cigarettes and the men then leaving, each in his own car,

¶113at 9:21 p.m., both heading in the direction of Snellville.

¶114 In his interview, Roberts first told the investigators that after

¶115returning from the cigarette run, he had stayed at home the entire

¶116evening. He also said he had his cell phone with him at all times

¶117that night. Investigators then confronted him with evidence showing

¶118that, after the time of the cigarette purchase, both his phone and

¶119Pettway’s phone were in close proximity, near the crime scene. At

¶120that point, Roberts claimed he had been at his grandmother’s home,

¶121which was near the crime scene. He explained his earlier dishonesty

¶122about his whereabouts by saying he just “didn’t want to get [himself]

¶123involved” in the investigation.

¶124 7  (c) A forensic examination of Roberts’s cell phone showed that

¶125Pettway’s phone number was listed in Roberts’s contacts. Also listed

¶126in Roberts’s contacts was a phone number for a person designated

¶127as “Bro”; this number matched the number to which numerous

¶128outgoing calls were made from Roberts’s phone on the night of

¶129November 1 and thereafter, through the early morning hours of

¶130November 3. The first of these calls was placed at 10:17 p.m., from

¶131a location near the crime scene. The call recipient was determined

¶132to be Dawan Glover, who later testified for the State under an

¶133immunity agreement.

¶134 Glover testified that Roberts called him late in the evening on

¶135November 1 and asked to come see him. At the time, Glover was at

¶136his girlfriend’s home in the Allen Hill apartment complex in

¶137southwest Atlanta. Glover agreed, and Roberts drove to Allen Hill,

¶138where he met Glover in the parking lot. Roberts told Glover he was

¶139“trying to get rid of his car” and offered to pay Glover to help; Glover

¶140agreed. Glover testified that he believed there was “an insurance

¶141situation” and that Roberts was “just doing it for the money.”

¶142 8  Glover testified that Roberts wiped down the inside of the car

¶143with cleaning solution, and the pair then left Allen Hill, Glover

¶144driving his girlfriend’s Chevy Lumina and Roberts following behind.

¶145They drove to a gas station, where Glover filled an antifreeze jug

¶146with gasoline. The pair then drove to an abandoned lot off of

¶147Chappell Road, in the Bankhead area. Glover doused the car with

¶148gasoline, lit a T-shirt on fire, and threw the T-shirt inside the car.

¶149Once the car began smoking, they drove off in Glover’s girlfriend’s

¶150car and returned to Allen Hill, where Roberts stayed the night. Not

¶151sure whether their plan to destroy the car had worked, the pair

¶152returned to the Bankhead lot the next evening with more gasoline

¶153and, finding the car still intact, successfully set it ablaze.

¶154 Glover’s girlfriend, Quaneshia Cleckley, also testified for the

¶155State. She testified that, late on the night of November 1, Glover

¶156asked to borrow her car, and she saw Glover leave the apartments

¶157with a man—whom she identified at trial as Roberts—following in

¶158a different car. When they returned about 30 minutes later, Glover

¶159asked if Roberts could stay the night, and she agreed. She recalled

¶160 9 that Roberts had with him a red or pinkish book bag, which he kept

¶161close to him while he slept, “[l]ike, if he wanted to get up and run,

¶162he was grabbing that book bag and everything was going with him.”

¶163Glover, too, testified that Roberts was in possession of a red

¶164“backpack bag.”

¶165 (d) Investigators discovered that Roberts’s car had a GPS

¶166tracking device that had been installed by a lienholder. They got the

¶167GPS records, which showed the car’s location approximately every

¶16824 hours. The records showed that, at 1:33 a.m. on November 2, the

¶169car was located less than a mile from the crime scene, and at 2:33

¶170a.m. on November 3, the car was in the area around Allen Hill.

¶171 The GPS tracking records, together with cell-tower records

¶172showing that Roberts had traveled from the area around the crime

¶173scene to the area around Allen Hill, led investigators to obtain

¶174surveillance-video footage from the night of the murder from the

¶175Allen Hill apartments. That recording shows a silver Dodge Avenger

¶176pulling into the complex at 11:11 p.m. Cell-phone and tower records

¶177show Roberts’s phone placing calls in that vicinity at 11:10 and 11:14

¶178 10 p.m., the latter call being placed to Glover’s number. The Allen Hill

¶179video shows the Dodge Avenger and Cleckley’s Chevy Lumina

¶180leaving the complex at 11:53 p.m. Cell-tower records show Roberts’s

¶181phone in the vicinity of the Bankhead lot at 1:58 a.m. on November

¶1822; by 2:12 a.m., the phone was back in the vicinity of Allen Hill.

¶183Surveillance video shows the Chevy Lumina returning to the

¶184apartment complex at 2:12 a.m., this time with a passenger wearing

¶185the same clothes Roberts was wearing in the Citgo surveillance

¶186video.

¶187 The Allen Hill surveillance video and cell-phone and tower

¶188records also corroborated Glover’s account of the events of the

¶189subsequent day and night. The cell records reflect that Roberts

¶190placed calls to Glover on the afternoon and evening of November 2,

¶191into the early hours of November 3, and that Roberts’s phone was in

¶192the area of Allen Hill on November 3 around 2:30 a.m. The video

¶193shows Roberts arriving at Allen Hill around 2:30 a.m. on November

¶1943 in his blue Hyundai Sonata and Glover getting in the car.

¶195 On November 3 at around 4:30 a.m., firefighters responded to

¶196 11 a fire reported near Chappell Road in Atlanta and discovered the

¶197burned shell of a car, which was later identified as Pettway’s.

¶198 Despite the evidence of his contacts with Glover, Roberts

¶199insisted in a second custodial interview that he did not know Glover

¶200and, when confronted with the cell records and other evidence, he

¶201claimed this evidence was all “a lie.”

¶202 An examination of Pettway’s phone records revealed a series of

¶203phone calls to Pettway on the evening of November 1 from a “Pinger

¶204account,” an online application that can be used to place phone calls

¶205anonymously, from a “ghost number,” which looks like a legitimate

¶206phone number but is not the actual number from which the call is

¶207placed. Records obtained from Pinger showed that the subscriber on

¶208the account was Roberts, who had created the account at 6:55 p.m.

¶209on November 1—52 seconds before the first call was placed to

¶210Pettway.

¶211 DNA testing on the two cigarette butts recovered from the

¶212crime scene showed that one had DNA consistent with that of

¶213Pettway, while the other had DNA consistent with that of Roberts.

¶214 12  (e) The State also presented evidence of Roberts’s commission

¶215of a prior crime, which the trial court admitted solely for the purpose

¶216of proving identity. 3 Witness Monica Mendoza testified that on

¶217October 23, 2016, Roberts attacked and robbed her at gunpoint after

¶218the two had engaged in a brief sexual encounter. Mendoza testified

¶219that she had connected with Roberts on a dating app. On the night

¶220in question, he contacted her and arranged to come to her DeKalb

¶221County apartment. Shortly after he arrived, the two began a sexual

¶222encounter, which she stopped after Roberts tried to have intercourse

¶223without a condom. At that point, she believed he was preparing to

¶224leave, but when she turned away, Roberts put a gun to her head and

¶225told her he was not leaving without the money in the house. They

¶226struggled, and Roberts hit Mendoza with the gun and began choking

¶227her. The gun discharged, and the bullet grazed her head. The

¶228gunshot prompted a neighbor to knock on her door. Roberts fled, but

¶229he grabbed Mendoza’s cell phone instead of his, leaving his at her

¶230 3 Both before this evidence was presented and in its instructions after the close of all the evidence, the trial court instructed the jury that this evidence was to be considered only for the purpose of establishing identity. 13 apartment. The responding police officer, DeKalb County police

¶231detective J. W. Kim, observed furniture in disarray and blood stains

¶232in the apartment, and he recovered a single .40-caliber shell casing

¶233from the apartment floor. He later visited Mendoza in the hospital

¶234and observed her injuries.

¶235 Although Mendoza did not know who Roberts was at that time

¶236and could offer police only a description of her attacker, she saw a

¶237social-media post about Pettway’s murder the next week and

¶238immediately recognized Roberts, who was pictured in the post, as

¶239her assailant. She told Detective Kim.

¶240 Detective Kim contacted Corporal Kulnis with this

¶241information. Through her investigation, Corporal Kulnis had

¶242learned that Roberts had pawned a cell phone on October 28, 2016,

¶243and this cell phone was ultimately determined to have been

¶244Mendoza’s. Further investigation showed that the cell phone

¶245Roberts was using at the time of Pettway’s murder had been

¶246activated on October 24, 2016—one day after the attack in which

¶247Roberts had left his phone behind.

¶248 14  The shell casing recovered from Mendoza’s apartment was sent

¶249for forensic testing along with the five .40-caliber shell casings from

¶250the site where Pettway’s body was found. A GBI firearms examiner

¶251testified that his testing showed that all six had all been fired from

¶252the same Smith & Wesson .40-caliber pistol.

¶253 2. Analysis

¶254 In his only enumeration of error, Roberts contends that the

¶255trial court erred by allowing the State to introduce evidence of the

¶256armed robbery of Mendoza. The trial court allowed the State to

¶257introduce that evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”)

¶258to establish Roberts’s identity as the person who shot Pettway;

¶259Roberts argues that the armed robbery was not similar enough to

¶260the murder to qualify as evidence relevant to showing identity under

¶261Rule 404 (b). We review the trial court’s decision to admit this

¶262evidence for an abuse of discretion. Smith v. State, 307 Ga. 263, 270

¶263(2) (c) (834 SE2d 1) (2019).

¶264 (a) Rule 404 (b) places specific limits on admitting “evidence of

¶265. . . other crimes, wrongs, or acts.” Evidence of a defendant’s past

¶266 15 wrongdoing is treated with caution because it can lead the jury to

¶267find the defendant guilty based on his past wrongs rather than the

¶268strength of the evidence that he committed the crime at hand. See

¶269generally State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d 170) (2015)

¶270(noting that evidence of a defendant’s other bad acts cannot be

¶271admitted simply to show bad character or propensity to commit

¶272crimes). So, before evidence of other acts is admitted, the State has

¶273to show that the other act helps prove something other than the

¶274defendant’s character or propensity for wrongdoing, like “proof of

¶275motive, opportunity, intent, preparation, plan, knowledge, identity,

¶276or absence of mistake or accident.” OCGA § 24-4-404 (b).

¶277 But Rule 404 (b) applies only to “evidence of . . . other crimes,

¶278wrongs, or acts”: in other words, evidence that is extrinsic to the

¶279charged crime. Id. (emphasis added). “The limitations and

¶280prohibition on ‘other acts’ evidence set out in OCGA § 24-4-404 (b) do

¶281not apply to ‘intrinsic evidence.’” Williams v. State, 302 Ga. 474, 485

¶282(IV) (d) (807 SE2d 350) (2017) (footnote omitted)). See also Harris v.

¶283State, 314 Ga. 238, 264 (3) (a) (875 SE2d 659) (2022) (“Rule 404 (b)

¶284 16 is not applicable to ‘intrinsic evidence.’”).

¶285 The line between extrinsic and intrinsic evidence is not always

¶286a bright one, see Harris v. State, 310 Ga. 372, 381 (2) (b) (850 SE2d

¶28777) (2020), and courts have drawn that line using a number of

¶288different (and sometimes overlapping) phrases meant to distinguish

¶289“direct evidence of the charged crime” from evidence of other crimes

¶290subject to Rule 404 (b). United States v. Shea, 159 F3d 37, 39 (1st

¶291Cir. 1998). See also United States v. Roberts, 933 F2d 517, 520 (7th

¶292Cir. 1991) (describing intrinsic evidence as “directly relevant to the

¶293crimes with which [the defendant] was charged”).4 To this end, we

¶294have said that evidence is considered intrinsic to the charged offense

¶295when it is “(1) an uncharged offense arising from the same

¶296transaction or series of transactions as the charged offense; (2)

¶297necessary to complete the story of the crime; or (3) inextricably

¶298 4 As we have said before, we are guided by decisions of the federal appellate courts, and the Eleventh Circuit in particular, when applying provisions of our Evidence Code that are modeled after the Federal Rules of Evidence. See Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016). Accord Harris, 314 Ga. at 264 (3) (a) (noting applicability of federal precedent in determining whether other-acts evidence is admissible either as intrinsic evidence or under Rule 404 (b)). 17 intertwined with the evidence regarding the charged offense.”

¶299Johnson v. State, 312 Ga. 481, 491 (4) (863 SE2d 137) (2021)

¶300(punctuation omitted). Accord Williams, 302 Ga. at 485 (IV) (d)

¶301(citing United States v. Edouard, 485 F3d 1324, 1344 (11th Cir.

¶3022007)). And in applying this language, we have also said that

¶303“evidence pertaining to the chain of events explaining the context,

¶304motive, and set-up of the crime is properly admitted if it is linked in

¶305time and circumstances with the charged crime, or forms an integral

¶306and natural part of an account of the crime, or is necessary to

¶307complete the story for the jury.” Id. (cleaned up). See also United

¶308States v. Fortenberry, 971 F2d 717, 721 (11th Cir. 1992) (describing

¶309intrinsic evidence as “an integral part of the circumstances

¶310surrounding Fortenberry’s illegal possession of the shotgun”);

¶311United States v. Battle, 774 F3d 504, 511 (8th Cir. 2014) (“When

¶312evidence of other crimes tends logically to prove any element of the

¶313crime charged, it is admissible as an integral part of the immediate

¶314context of the crime charged and is not extrinsic and therefore is not

¶315governed by Rule 404 (b).” (cleaned up)).

¶316 18  (b) Here, the armed robbery of Mendoza, as a whole, does not

¶317fall on the intrinsic side of the line. The robbery of Mendoza itself

¶318was not related to Pettway’s murder in any of the ways we have said

¶319make a past crime intrinsic: that crime as a whole was neither a part

¶320of a series of transactions related to that charged crime, nor part of

¶321the story of that crime, nor “inextricably intertwined with the

¶322evidence” of it. Indeed, many of the details of the armed robbery are

¶323simply irrelevant to Pettway’s murder.

¶324 But a limited portion of the evidence of the armed robbery is

¶325properly considered intrinsic. See Battle, 774 F3d at 512 (noting that

¶326“limited evidence” about prior crime committed with the same gun—

¶327including ballistics evidence and testimony identifying defendant as

¶328shooter—was intrinsic); Roberts, 933 F2d at 519-20 (affirming

¶329admission of evidence about police chase after crime committed two

¶330days after charged offenses, in which officers seized from defendant

¶331the weapon used in the charged offenses; although the later crime

¶332was not intrinsic and was properly excluded, the “cautiously edited

¶333testimony regarding the government’s recovery of [the] gun” was

¶334 19 intrinsic). The evidence from that incident included a .40-caliber

¶335shell casing that testing showed was discharged from the same gun

¶336as the casings from the scene of Pettway’s murder, and testimony

¶337that Roberts possessed and shot that gun during the incident. This

¶338physical evidence and testimony directly placing the murder weapon

¶339in Roberts’s hands in the days leading up to Pettway’s murder was

¶340“reasonably necessary to complete the story” of that charged crime.

¶341See, e.g., Heade v. State, 312 Ga. 19, 24-26 (3) (860 SE2d 509) (2021)

¶342(evidence of three incidents leading up to charged crimes was

¶343“reasonably necessary to complete the story” because it explained

¶344the relationship between the parties and the defendant’s motive in

¶345committing the charged crimes); Abbott v. State, 311 Ga. 478, 483

¶346(2) (858 SE2d 696) (2021) (evidence of prior theft was intrinsic when

¶347it “offer[ed] insight into [defendant’s] motive” and “provid[ed]

¶348evidence of premeditation” as to charged crimes); Smith, 307 Ga. at

¶349272 (2) (c) (witness’s testimony about prior drug dealing by

¶350defendants was necessary to complete the story of the crime because

¶351it explained how the witness was able to identify the defendants and

¶352 20 also advanced the State’s theory of the case). See also United States

¶353v. Fortenberry, 971 F2d 717, 719-21 (11th Cir. 1992) (evidence of

¶354defendant’s involvement in a prior double murder was admissible as

¶355to charge of unlawful firearm possession where the possession

¶356charge involved the weapon used in the murders); Battle, 774 F3d at

¶357511 (in prosecution for unlawful firearm possession where gun was

¶358discovered on the floor of a car occupied by defendant and two others,

¶359concluding that evidence of prior crime committed by defendant with

¶360same gun was intrinsic evidence that established defendant’s

¶361constructive possession); United States v. Brooks, 715 F3d 1069,

¶3621076-77 (8th Cir. 2013) (photos and video showing defendant posing

¶363with a gun, recovered from cell phone left in stolen van, were

¶364intrinsic where gun appeared to be the same gun used in stealing

¶365the van and committing armed robbery earlier that same day); Shea,

¶366159 F3d at 39-40 (gun seized during defendant’s arrest for a

¶367separate crime one week after the charged crime was admissible as

¶368intrinsic evidence where government sought to prove it was the

¶369same gun used in charged crime); Roberts, 933 F.2d at 520

¶370 21 (categorizing as intrinsic the limited evidence that defendant “was

¶371caught with a dark steel revolver with a brown handle matching the

¶372description of the weapon he used only two days earlier to rob the

¶373Joliet bank” because it was “directly relevant to the crimes with

¶374which he was charged”); United States v. Towne, 870 F2d 880, 886

¶375(2d Cir. 1989) (in prosecution for unlawful receiving and possession

¶376of a firearm, evidence that defendant was in possession of that

¶377firearm on dates not charged in the indictment was admissible as

¶378intrinsic evidence).

¶379 As intrinsic evidence, this limited evidence from the armed

¶380robbery was admissible as long as it satisfied OCGA § 24-4-403

¶381(“Rule 403”), see Harris, 314 Ga. at 264 (intrinsic evidence “‘must

¶382satisfy Rule 403’”), and there is little question that it did. Physical

¶383evidence and testimony placing the murder weapon in Roberts’s

¶384hands just nine days before the murder had substantial probative

¶385value, particularly given the lack of eyewitnesses to Pettway’s

¶386murder and the fact that Roberts denied he was involved. See Olds

¶387v. State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016) (explaining that

¶388 22 the probative value of evidence depends in part on whether the fact

¶389it is offered to prove is disputed and on its marginal worth in proving

¶390that fact in comparison to other available proof). And although this

¶391evidence was surely prejudicial to Roberts’s defense, Rule 403

¶392requires exclusion only when “unfair prejudice substantially

¶393outweighs probative value.” Anglin v. State, 302 Ga. 333, 337 (3)

¶394(806 SE2d 573) (2017) (citation and punctuation omitted). And given

¶395its strong probative value, this intrinsic evidence was not the

¶396evidence of “scant or cumulative probative force, dragged in by the

¶397heels for the sake of its prejudicial effect,” that Rule 403

¶398contemplates excluding. Johnson, 312 Ga. at 493 (4) (citation and

¶399punctuation omitted). Thus, the trial court did not abuse its

¶400discretion in admitting this limited evidence. See Smith, 307 Ga. at

¶401271-273 (2) (c) (affirming admission of evidence as intrinsic despite

¶402trial court’s having admitted it under Rule 404 (b)).

¶403 (c) That leaves the rest of the evidence of the armed robbery.

¶404Evidence that did not directly relate to the shell casing or identify

¶405Roberts as the person who possessed, shot, and left with the gun was

¶406 23 not admissible as intrinsic evidence. But under these circumstances,

¶407any error in admitting the rest—like the details of the sexual

¶408encounter, the fact that Mendoza was injured during the incident,

¶409and the state of Mendoza’s apartment after Roberts left—was

¶410harmless. 5

¶411 A non-constitutional evidentiary error requires reversal only if

¶412it “harm[s] a defendant’s substantial rights,” and we determine

¶413whether such harm occurred by asking whether it is “highly

¶414probable that the error did not contribute to the verdict.” Williams

¶415v. State, 313 Ga. 443, 448 (1) (870 SE2d 397) (2022). As part of that

¶416determination, we review all the evidence de novo, after setting

¶417aside the evidence admitted in error, and “we weigh the remaining

¶418evidence as we would expect reasonable jurors to have done so.” Id.

¶419(cleaned up).

¶420 Here, the evidence that was properly admitted against Roberts,

¶421although circumstantial, was quite strong. The intrinsic evidence

¶422 5We do not decide whether the evidence of the armed robbery as a whole was admissible under Rule 404 (b) for identity or any other purpose. 24 from the armed robbery placed the murder weapon in Roberts’s

¶423hands just nine days before the murder. Roberts admitted to having

¶424been with Pettway earlier on the night of the murder, which cell-

¶425tower records and surveillance-video footage confirmed. Cell-tower

¶426records placed both Roberts and Pettway, around the time of the

¶427murder, in the area where Pettway’s body was later found. A

¶428cigarette butt bearing Roberts’s DNA was found at the scene near

¶429Pettway’s body. There was testimony that Roberts asked Glover to

¶430help him destroy Pettway’s car just hours after the murder and that

¶431then—as corroborated by cell-tower records and surveillance video—

¶432the pair set out to accomplish that job by setting fire to the car in an

¶433abandoned lot. There was testimony that Roberts was in possession

¶434of a red backpack just hours after the murder, as well as testimony

¶435that Pettway had been carrying a red backpack on the evening of

¶436the murder. And Roberts, when confronted with cell records and

¶437video evidence implicating him, had no explanation other than that

¶438it was all “a lie.”

¶439 In light of this very strong evidence, it is highly probable that

¶440 25 the extra details of the armed robbery did not contribute to the

¶441verdicts. Those details, while certainly not helpful to Roberts’s case,

¶442were not unusually inflammatory. See generally Chavez v. State,

¶443307 Ga. 804, 809 (2) (a) (837 SE2d 766) (2020) (noting that evidence

¶444of prior convictions for less serious crimes is “not likely to inflame

¶445the jury’s passions in a murder case”). Cf. Heard, 309 Ga. at 91-92

¶446(3) (g) (concluding that prejudicial effect of other-acts evidence was

¶447“substantial” because of the egregious means by which the earlier

¶448crime was committed). And the trial court’s limiting instruction also

¶449helped mitigate the prejudicial effect of those details: by instructing

¶450the jury to consider the armed-robbery evidence “only insofar as it

¶451may relate to” the issue of “the identity of the perpetrator,” the trial

¶452court effectively directed the jury’s attention to the evidence that

¶453was intrinsic and away from the extraneous details. See Johnson,

¶454312 Ga. at 494 (4) (noting that the prejudicial effect of certain

¶455evidence “was mitigated by the trial court’s instruction limiting the

¶456jury’s consideration of that evidence”). Given that instruction and

¶457the strong evidence against Roberts, any error in admitting this

¶458 26 evidence was therefore harmless.

¶459 Judgment affirmed. All the Justices concur.

¶460 27