Baker v. State

¶1NOTICE: 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.

¶2In the Supreme Court of Georgia

¶3 Decided: March 5, 2024

¶4 S23A0860. BAKER v. THE STATE.

¶5 WARREN, Justice.

¶6 Appellant Morgan Baker was convicted of malice murder in

¶7connection with the shooting death of Tamarco Head.1 In his sole

¶8enumeration of error, Baker contends that the trial court abused its

¶9discretion under OCGA § 24-4-403 (“Rule 403”) by admitting into

¶10evidence a portion of a rap music video. As explained below, we

¶11agree that the trial court’s admission of the video was an abuse of

¶12 1 Head was killed on July 6, 2019. In February 2021, a Houston County grand jury indicted Baker for malice murder, felony murder, and aggravated assault. At a trial from February 8 to 11, 2022, a jury found him guilty of all counts. The trial court sentenced him to serve life in prison for malice murder; the remaining counts were vacated by operation of law or merged. Baker filed a timely motion for new trial, which he later amended through new counsel. After a hearing, the trial court entered an order denying the motion in December 2022. In February 2023, Baker filed a motion to set aside that order for lack of notice. The trial court granted the motion, vacated its order, and reentered it on March 7, 2023. Baker then filed a timely notice of appeal, and the case was docketed to the August 2023 term of this Court and orally argued on August 23, 2023. discretion. And because the State has not met its burden of showing

¶13that the error was harmless, we reverse Baker’s conviction.

¶14 1. (a) The Pretrial Ruling to Admit the Rap Music Video Into Evidence

¶15 Before trial, Baker filed a motion to exclude from evidence a

¶16music video of the rap song “Ghetto Angels” by Kobe Crawford (a rap

¶17artist known as “NoCap”), which was “filmed in early 2019” and

¶18showed Baker “holding a semi-automatic pistol with an extended

¶19magazine.” The motion argued, among other things, that the video’s

¶20probative value was substantially outweighed by the danger of

¶21unfair prejudice under Rule 403. After a hearing on the motion, the

¶22trial court ruled that a 33-second-long portion of the video was

¶23admissible, concluding that it was relevant to establish Baker’s

¶24“identity” and the relationship between Baker and Crawford. The

¶25court also ruled, without explanation, that the “short clip [wa]s more

¶26probative than prejudicial.”

¶27 2  (b) The Trial

¶28 The evidence presented at Baker’s trial showed the following. 2

¶29Baker was close friends with Crawford and worked as his road

¶30manager, traveling with him to various concert venues to assist with

¶31his performances. On the night of July 5, 2019, Crawford, Baker,

¶32and several other members of Crawford’s “entourage”3 drove in a

¶33black van to a nightclub in Warner Robins, where Crawford was

¶34scheduled to perform.

¶35 According to Crawford’s music manager—Rodney Dunn—and

¶36the owner of the nightclub, the van parked behind the nightclub, and

¶37Crawford, Baker, and other members of the entourage hung out in

¶38a “VIP” room in the nightclub until Crawford performed around 1:00

¶39or 1:30 a.m. The performance ended around 2:00 a.m., when the

¶40nightclub was scheduled to close, and Crawford and some of the

¶41 2 Because this case requires our assessment of whether an evidentiary

¶42error was harmless, see Division 2 (d) below, “we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done.” Jivens v. State, Case No. S23A1078, 2023 WL 8721065, at *4 (decided Dec. 19, 2023).

¶43 3 Crawford’s brother, one of Crawford’s friends, and a man who was involved in the music industry and his friends were also part of the entourage. None of these people testified at trial. 3 members of the entourage left through the rear exit and got back in

¶44the van.

¶45 Meanwhile, patrons left through the front door of the

¶46nightclub, where several security guards stood. Baker went out the

¶47front door with the crowd, but he then tried to go back inside the

¶48nightclub. One of the security guards testified as follows. A man,

¶49later identified as Baker, and another man who appeared to be with

¶50Baker, tried to come back inside, but the guard said that the two

¶51men could not come in because the nightclub was closed. An

¶52argument ensued, and several security guards pushed the men out

¶53the door. Baker and the other man then walked down the breezeway

¶54of the strip mall where the nightclub was located, toward a pawn

¶55shop. Several security guards, including Head, stood near the door

¶56of the nightclub, talking. A few minutes later, gunfire rang out from

¶57the direction of the pawn shop; it sounded as though there was more

¶58than one shooter. Head was shot, and he fell to the ground, dead.4

¶59 4 The medical examiner who later performed Head’s autopsy testified

¶60that she recovered no bullets or bullet fragments from Head’s body. 4 More gunfire later erupted “right up the street.”

¶61 Video recordings from the surveillance cameras at the

¶62nightclub showed the following. 5 At 2:04 a.m., a crowd of people filed

¶63through the front door to exit the nightclub. Baker, who had a short

¶64hairstyle and wore a white T-shirt with black writing on the front,

¶65walked outside, followed by a taller man wearing a black shirt and

¶66a camouflage ball cap. The two men stood near the door, briefly

¶67talked to a woman, and then walked down the breezeway. At 2:06

¶68a.m., Baker and the man in the camouflage cap walked back toward

¶69the nightclub together and tried to go inside, but a few security

¶70guards stopped them. Baker and one of the security guards argued

¶71and then shoved each other, and the man in the cap lunged toward

¶72the guards. Baker pulled him back as the security guards pushed

¶73Baker and the other man out the door, and it appears that Baker

¶74and some of the guards tried to hit each other. Baker then put his

¶75arm around the man in the camouflage cap, and at 2:07 a.m., they

¶76 5 The video recordings did not include audio.

¶77 5 walked down the breezeway and out of view. 6 Several of the security

¶78guards, including Head, stood together talking in front of the door,

¶79and approximately two minutes later, Head suddenly fell down as

¶80blood spattered on the ground near him.

¶81 Dunn (Crawford’s music manager) testified that after the

¶82performance that night, he got in his car, and he thought that

¶83Crawford, Baker, and the rest of the entourage got in the van, which

¶84was still parked behind the nightclub. As Dunn pulled out onto the

¶85street, following the van, he heard gunshots. He did not see anyone

¶86get into the van after he heard the shots. At some point, Dunn asked

¶87Baker if he was involved in the shooting, and Baker denied it. Dunn

¶88also testified that members of Crawford’s entourage typically did not

¶89carry guns to Crawford’s performances.

¶90 In response to the prosecutor’s questions about the “Ghetto

¶91Angels” rap music video, Dunn testified that the song was about the

¶92 6 It was undisputed at trial that Baker was the man in the white T-shirt who was involved in the altercation with the security guards. Baker’s trial counsel mentioned this fact during his opening statement, and as discussed more below, Baker admitted it during his testimony. 6 death of Crawford’s cousin, who had been shot 17 times years

¶93earlier; the video showed Baker and several other men waving guns;

¶94Dunn did not know what kind of gun Baker held or whether any of

¶95the guns were real or fake; and Dunn discouraged Crawford from

¶96using guns in his music videos. During cross-examination, trial

¶97counsel elicited Dunn’s testimony that rap artists often use guns in

¶98their music videos “to portray that they are somebody deserving of

¶99street cred” and that record labels encouraged the use of guns in

¶100music videos.

¶101 On redirect, the prosecutor introduced the 33-second-long

¶102portion of the rap music video, which the trial court admitted into

¶103evidence over trial counsel’s renewed objection, and the prosecutor

¶104played the video for the jury. The first few seconds of the video

¶105showed Baker waving a black handgun, pointing it at the camera,

¶106and motioning as if he was shooting the gun while three other men

¶107rapped and made hand gestures. The video then showed Baker,

¶108Crawford, and about a dozen other men singing and dancing on and

¶109around a car; Baker waved the black handgun, sometimes pointing

¶110 7 it at the camera, while some of the men made hand gestures, held

¶111bottles of what appears to be alcohol, and brandished guns. In

¶112response to further questions from the prosecutor, Dunn identified

¶113Baker as one of the men who was “flashing [a] firearm” and testified

¶114that although Dunn did not condone guns, he could not control

¶115whether Crawford’s entourage used guns in the music video or

¶116whether they carried guns on the night of the shooting. The

¶117prosecutor then asked why Crawford “promot[ed]” gun violence in

¶118the video, and Dunn responded that Crawford was not promoting it

¶119and that Crawford was simply “a rapper.”

¶120 Another security guard testified that there were no security

¶121issues in the nightclub before the altercation with Baker, and that

¶122after Baker and the man in the camouflage cap walked toward the

¶123pawn shop, gunfire erupted from that direction. He did not see who

¶124shot, but the gunfire sounded like it came from “multiple guns.”

¶125 A patron of the nightclub testified that shortly before the shots

¶126were fired, she was standing in the breezeway with her sister when

¶127two men walked past her toward the pawn shop. One of the men

¶128 8 wore a white shirt; the other man, who was taller, wore a black shirt

¶129and had his arm around the man in the white shirt. She heard one

¶130of them say something like, “[D]on’t worry about it; we gonna get

¶131them.” She then got in a car with her sister and heard gunshots, but

¶132she could not tell from which direction they came, and she did not

¶133see a shooter. The sister similarly testified that two men walked

¶134past her toward the pawn shop as she stood in the breezeway

¶135moments before the shooting; one of the men wore a white shirt and

¶136the other wore a black shirt.7

¶137 An off-duty police officer who was hired to provide security in

¶138the parking lot of the nightclub testified that after the nightclub

¶139closed, he heard gunshots that sounded like they were fired from

¶140multiple guns, and he saw muzzle flashes near the pawn shop. A

¶141few moments later, he heard another set of gunshots, which sounded

¶142as if a shooter was driving around outside the nightclub. He told

¶143 7 A third woman, who was with the sisters that night, testified that she

¶144heard gunshots, followed by another set of gunshots, coming from the direction of the pawn shop; she thought the shots came from only one gun; and she did not see who shot. 9 investigators at the scene that he saw a shooter, who wore a light-

¶145colored shirt and a ball cap, near the pawn shop. At trial, he testified

¶146that he did not see a shooter or recall describing a shooter to

¶147investigators, but he insisted that what he told investigators was

¶148“definitely the truth.”

¶149 Another patron, La’Destiny Orr-Oglesby, testified as follows.

¶150She was standing near her car, which was parked in front of the

¶151pawn shop, when two men in the breezeway by the shop began

¶152shooting handguns in the direction of the nightclub. One of the

¶153shooters was short; had short hair, “light” skin, and a tattoo on his

¶154left arm; and wore a white shirt with writing on the front. The other

¶155shooter was tall, had dark skin, and wore a dark shirt and dark hat.

¶156When the men stopped shooting, they ran to a dark van that was

¶157parked on the side of the strip mall near the pawn shop. The

¶158prosecutor played the surveillance recordings showing the

¶159altercation among Baker, the man in the camouflage cap, and the

¶160security guards, and Orr-Oglesby identified Baker and the man in

¶161the camouflage cap as the shooters. She also testified that when the

¶162 10 lead detective for the case interviewed her and showed her the

¶163surveillance recordings, she similarly identified Baker and the man

¶164in the camouflage cap as the shooters.8

¶165 The lead detective testified that when Orr-Oglesby spoke to an

¶166investigator on the day of the shooting, she “g[a]ve a description of

¶167who . . . she saw shooting.” (The lead detective did not elaborate

¶168further about that description.) Two days later, on July 8, the lead

¶169detective showed Orr-Oglesby a photo lineup that did not include a

¶170photo of Baker, and she did not identify any of the photos in the

¶171lineup as a photo of the shooter. The lead detective interviewed Orr-

¶172Oglesby again that day, and she said that she saw two shooters—

¶173one of the shooters was short, had light skin and a tattoo on his left

¶174arm, and wore a white T-shirt, and the other shooter wore a dark

¶175shirt and dark hat. When the detective interviewed her again on

¶176August 21, he showed her the surveillance recordings from the

¶177 8 Orr-Oglesby also testified that in the weeks before trial, she had been

¶178arrested for a misdemeanor ticket, for driving on a suspended license, and for failing to report to her probation officer. The District Attorney’s office arranged for her release from jail so that she could prepare to testify. Her charges were still pending at the time of trial. 11 nightclub, and Orr-Oglesby identified the two men who fought with

¶179security guards as the shooters.

¶180 While reviewing social media posts associated with Crawford,

¶181the lead detective found the “Ghetto Angels” rap music video; he

¶182determined that one of the men in the video was the same man

¶183shown on the surveillance recordings of the altercation with the

¶184security guards; and he “eventually learned” that the man was

¶185Baker. The prosecutor then played the rap music video for the jury

¶186again. The detective identified Crawford and Baker in the video,

¶187saying that Baker was “holding what appear[ed] to be a firearm.”

¶188On cross-examination, defense counsel tendered into evidence and

¶189played for the jury a video recording of Orr-Oglesby’s August 21

¶190interview, and the detective acknowledged that Orr-Oglesby said

¶191during that interview that she “d[id]n’t think the light-skinned guy

¶192was shooting.” 9

¶193 9 During the remainder of the interview, Orr-Oglesby repeatedly referred

¶194to two shooters and gave descriptions of them that were consistent with the descriptions she gave at trial. Defense counsel asked Orr-Oglesby during cross-examination if she told the lead detective that she “d[id]n’t think the

¶195 12  The prosecutor tendered into evidence a photo of Baker that

¶196was taken while he was on stage with Crawford on the night of the

¶197shooting; the photo showed that Baker had short hair and a tattoo

¶198on his left arm and wore a white T-shirt with writing on it.10

¶199Forensic testing showed that Baker’s fingerprints were on two

¶200plastic cups found in the “VIP” room of the nightclub.

¶201 A crime scene investigator found seven .45-caliber shell casings

¶202and 15 9mm shell casings near the pawn shop. A firearms examiner

¶203later determined that all of the .45-caliber shell casings were fired

¶204from the same gun (although he could not determine the make and

¶205model of the gun), and all of the 9mm shell casings were fired from

¶206the same Smith & Wesson 9mm pistol. Investigators did not recover

¶207the guns used in the shooting, nor did they determine the identity of

¶208light-skinned guy was shooting,” and Orr-Oglesby stated that she did not remember saying that and that she “always said there w[ere] two people shooting.”

¶209 10 The photo, which was admitted without objection, depicted Baker gesturing as if he was shooting a gun. 13 the man in the camouflage cap. 11

¶210 The defense presented testimony from two witnesses who saw

¶211shots fired in the area surrounding the nightclub around 2:00 a.m.—

¶212near the time of the shooting in this case. One of the witnesses

¶213testified that his truck was hit by a bullet as he was driving at the

¶214corner down the street from the nightclub, but he could not tell

¶215where the shots came from. The other witness testified that he saw

¶216shots fired from three vehicles—a black truck, a white Toyota

¶217Solara, and an SUV—about a block away from the nightclub. 12 The

¶218defense also presented a surveillance video recording from the

¶219 11 Investigators also found two .40-caliber shell casings in the nightclub

¶220parking lot, three 9mm shell casings north of the nightclub, and two .223 shell casings in a store parking lot a couple of blocks away. The lead detective testified that he did not know whether any of these shell casings were related to the shooting in this case. The firearms examiner determined that the 9mm shell casings found north of the nightclub were not fired from the same gun that fired the 9mm shell casings found near the pawn shop.

¶221 12 In connection with the gunshots that the witnesses described, the lead

¶222detective testified that he learned that shortly after the shooting in this case, shots were fired at an intersection about a block away from the nightclub. Investigators found 11 .40-caliber and 9mm shell casings near the intersection. The firearms examiner determined that the .40-caliber shell casings near the intersection were fired from the same gun that fired the .40-caliber shell casings found in the nightclub parking lot; the 9mm shell casings from the intersection were not fired from the gun that fired the 9mm shell casings found north of the nightclub or the 9mm shell casings found near the pawn shop. 14 nightclub that showed that about 30 minutes before the shooting in

¶223this case, a security guard escorted an unidentified man in a white

¶224shirt out of the nightclub and into the parking lot.

¶225 Baker testified in his own defense as follows. After Crawford,

¶226his close friend since childhood, performed on the night of the

¶227shooting, Baker went out the front door of the nightclub to look for

¶228a woman he had talked with earlier that night. The man in the

¶229camouflage cap, whom Baker did not know but had seen in the “VIP”

¶230room at the nightclub earlier, followed him outside and tried to

¶231“latch on” to him because the man wanted to take a photo with

¶232Crawford. Baker, with the man beside him, briefly spoke to the

¶233woman, and then walked down the breezeway to look for someone

¶234else; the man in the cap followed him. Baker eventually decided to

¶235go to the van, which was parked behind the nightclub, so he tried to

¶236go back inside, and the man again followed him. When a security

¶237guard told Baker that he could not come in, Baker was angry and

¶238asked what the problem was. The security guard pushed him, and

¶239the man in the cap began yelling. Several security guards pushed

¶240 15 Baker and the man out the door, and the man ran past Baker to

¶241fight with the guards. Baker pulled the man back and stepped

¶242between the man and a security guard; a guard punched Baker in

¶243the face as he tried to break up the fight. Baker and the man then

¶244walked down the breezeway, and the man asked Baker if he was

¶245alright. Baker replied that he was and then walked around the side

¶246of the strip mall to the parking lot behind the nightclub, where the

¶247van was parked, as the man in the cap walked in a different

¶248direction. According to Baker, he wanted to distance himself from

¶249the man because the man had escalated the situation with the

¶250security guards. Baker then got in the van, which drove away

¶251moments later. As the van turned onto the street in front of the

¶252nightclub, Baker heard gunshots. The van then drove to Atlanta,

¶253where Baker and others in the entourage stayed overnight.

¶254Although Crawford was scheduled to perform in Tupelo, Mississippi

¶255the next night, Baker did not travel there and did not continue

¶256touring with Crawford, because Baker wanted to go home to see his

¶257infant daughter. Baker squarely denied having a gun that night or

¶258 16 being involved in the shooting.

¶259 On cross-examination, Baker testified that he put his arm

¶260around the man in the camouflage cap as they walked down the

¶261breezeway because Baker was trying to “de-escalate the situation,”

¶262since the man was still angry. The prosecutor asked whether the

¶263entourage traveled with guns, and Baker responded, “Why would

¶264we, though?” The prosecutor said, “Well, let’s see why” and then

¶265played the rap music video again. In response to the prosecutor’s

¶266questions about the video, Baker testified that he did not produce

¶267the video, that it was about “losing loved ones,” that he thought he

¶268had “a Glock” gun in the video, he did not know “what kind” of Glock

¶269it was, it was not his gun, and he used it in the video because he was

¶270“trying to look cool.” When the prosecutor asked why that made him

¶271“look cool,” Baker responded, “[I]n the music industry in—in my age

¶272group, you do whatever that you think will sell, such as if—if I was

¶273to—say I was a country music artist, I probably don’t like cowboy

¶274hats or cowboy boots, but I will wear it if I think it’s going to help

¶275my country music sell.” The prosecutor asked why Baker was

¶276 17 “promoting” gun violence in the video, and he replied that he was

¶277not promoting it and was “[j]ust trying to be cool.” The prosecutor

¶278then rewound the video and paused it at a point where it depicted

¶279Baker; she asked him if the shirt he was wearing said “Loyalty is

¶280Love,” and he replied that he did not know. Later, the prosecutor

¶281referenced the photo showing Baker on stage with Crawford,

¶282gesturing as if he was pointing a gun, and asked if Baker was

¶283“[p]ortraying a shooter” “[j]ust like in the video we just watched,

¶284with a real gun?” Baker replied that he was “just trying to be cool.”

¶285 The State’s theory of the case was that the man in the

¶286camouflage cap was part of Crawford’s entourage; the man and

¶287Baker shot toward the security guards, killing Head, after the

¶288altercation at the door of the nightclub; and they then fled in the van

¶289with the rest of the entourage. During closing argument, defense

¶290counsel argued that Orr-Oglesby’s testimony was not credible

¶291because she told the lead detective that the “light-skinned” man did

¶292not shoot and because she testified that the van was parked on the

¶293side of the strip mall, whereas other witnesses testified that it was

¶294 18 parked behind the nightclub; and alternatively, that the shooter in

¶295the white shirt was someone else, as the evidence showed that

¶296shootings were frequent in that area. As to the rap music video,

¶297defense counsel argued that the video was a performance that

¶298merely showed Baker “wanting to act cool.”

¶299 The prosecutor argued in closing that Orr-Oglesby was

¶300credible, that her testimony that there were two shooters was

¶301supported by the ballistics evidence, that given the undisputed

¶302evidence showing that Baker wore a white shirt that night and that

¶303he fought with the security guards, it was improbable that the man

¶304in the cap began shooting with a different person who also happened

¶305to be wearing a white shirt, and that the evidence that Baker did

¶306not continue touring with Crawford after the shooting allowed an

¶307inference of guilt.

¶308 The prosecutor also asserted that Baker’s testimony that he did

¶309not have a gun on the night of the shooting was not credible, because

¶310“[t]hey don’t roll like that.” She went on:

¶311 Use your common sense. And you know why you can say

¶312 19  they don’t roll like that? Go back to that Ghetto Angels video. Right? That’s all they know, the gun violence. They want to promote it. They want to live by the sword, but they don’t want to die by it, right? When it’s not convenient, they don’t want to act like they promote the shooting.

¶313Near the end of her argument, she asserted that “[t]his gun violence

¶314needs to stop,” saying that it was sad that the altercation at the front

¶315door ended in Head’s murder. She then said, “We’re better than

¶316that. We’re better than that. Your job is to return a verdict.” She

¶317closed by saying: “The truth is it’s time to tell Morgan Baker that

¶318we’re going to hold him accountable for exactly what he did that

¶319night. That we’re going to h[o]ld him accountable for ending a

¶320human life. That it’s not a game, it’s not about a rap video. It’s real.”

¶321As mentioned above, the jury found Baker guilty of malice murder,

¶322among other crimes, and he was sentenced to serve life in prison.

¶323 (c) The Denial of Baker’s Motion for New Trial

¶324 In his motion for new trial, Baker argued that the trial court

¶325abused its discretion by admitting the rap music video into evidence,

¶326asserting that the video was not relevant or probative because he

¶327never disputed that he was close friends with Crawford or that he 20 was at the nightclub on the night of the shooting. In its order

¶328denying the motion, the trial court ruled that the video was properly

¶329admitted, because it was relevant to show that Baker was part of

¶330the entourage, that he had a motive to shoot Head, and that the lead

¶331detective was able to identify him through the video. The trial court

¶332also concluded, apparently as part of its analysis under Rule 403,

¶333that although the video showed Baker waving a gun, the video was

¶334only about 30 seconds long and “the behavior in the video [was] not

¶335in and of itself illegal and is relatively common in today’s music

¶336videos.”

¶337 2. In his sole claim on appeal, Baker contends that the trial

¶338court abused its discretion under Rule 403 by admitting the portion

¶339of the rap music video into evidence. As discussed below, we agree.13

¶340 13 Baker also makes a bare-bones assertion that the rap music video

¶341should have been excluded under the First Amendment to the United States Constitution. But given our conclusion that the video was not admissible under Rule 403 and that the error in admitting it was not harmless, we do not reach Baker’s argument that the video also was not admissible under the First Amendment. In addition, we note that the State contends that, although Baker preserved for ordinary appellate review his claim about the rap music video, he affirmatively waived any argument about the audio, i.e., the lyrics of the

¶342 21  (a) The Applicable Law

¶343 We begin with a review of the law that applies to Baker’s claim.

¶344Under OCGA § 24-4-401 (“Rule 401”), “relevant evidence” is

¶345evidence that has “any tendency to make the existence of any fact

¶346that is of consequence to the determination of the action more

¶347probable or less probable than it would be without the evidence.”

¶348“The test for relevance is generally a liberal one, and [r]elevance is

¶349a binary concept—evidence is relevant or it is not.” Harris v. State,

¶350314 Ga. 238, 262 (875 SE2d 659) (2022) (citations and punctuation

¶351omitted). Under OCGA § 24-4-402 (“Rule 402”), relevant evidence is

¶352generally admissible, and evidence that is not relevant is not

¶353admissible. Rule 402 also says, however, that the admissibility of

¶354relevant evidence may be “limited by . . . law or by other rules.”

¶355song featured in the video. But the lyrics in the rap music video are, for the most part, indecipherable, and Baker makes no specific arguments about why they should have been excluded. Thus, we need not address the State’s contention, because the lyrics have no bearing on our conclusion that the rap music video was improperly admitted. We note that the dissenting opinion appears to argue that the unintelligibility of the lyrics in the rap music video “further diminish[] any danger of unfair prejudice” under Rule 403, but the lyrics’ unintelligibility would only mitigate any unfair prejudice flowing from the lyrics themselves—not any unfair prejudice from the images in the video, to which we have limited our review here. 22 OCGA § 24-4-402. One such limiting rule is Rule 403, which says,

¶356“Relevant evidence may be excluded if its probative value is

¶357substantially outweighed by the danger of unfair prejudice,

¶358confusion of the issues, or misleading the jury or by considerations

¶359of undue delay, waste of time, or needless presentation of cumulative

¶360evidence.”

¶361 We have often reiterated that “[t]he major function of Rule 403

¶362is to exclude matter of scant or cumulative probative force, dragged

¶363in by the heels for the sake of its prejudicial effect.” Harris, 314 Ga.

¶364at 262-263 (citation and punctuation omitted). To that end, we have

¶365explained probative value in this way:

¶366 Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. And the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered. Probative value also depends on the marginal worth of the evidence—how much it adds, in other words, to the other proof available to establish the fact for which it is offered. The stronger the other proof, the less the marginal value of the evidence in question. And probative value depends as well upon the need for the evidence. When the fact for which the evidence is

¶367 23  offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence.

¶368Olds v. State, 299 Ga. 65, 75-76 (786 SE2d 633) (2016) (citations and

¶369footnotes omitted).

¶370 As to the evaluation of prejudice under Rule 403, we have said

¶371that “in a criminal trial, inculpatory evidence is inherently

¶372prejudicial; it is only when unfair prejudice substantially outweighs

¶373probative value that the rule permits exclusion.” Harris, 314 Ga. at

¶374263 (emphasis in original; citation and punctuation omitted). The

¶375term “unfair prejudice,” as it is used in Rule 403, refers to “the

¶376capacity of some concededly relevant evidence to lure the factfinder

¶377into declaring guilt on an improper basis rather than on proof

¶378specific to the offense charged.” Old Chief v. United States, 519 U.S.

¶379172 (117 SCt 644, 136 LE2d 574) (1997).14 Generally, such improper

¶380bases for a finding of guilt include a criminal defendant’s bad

¶381character or his propensity for violence. See, e.g., id. at 181-182

¶382 14 Because OCGA § 24-4-403 is “materially identical” to Federal Rule of

¶383Evidence 403, we look to federal appellate cases for guidance in interpreting the rule. See State v. Almanza, 304 Ga. 553, 556-558, 560 (820 SE2d 1) (2018). 24 (explaining that the risk that a jury will reach a guilty verdict

¶384“‘because a bad person deserves punishment’” creates a substantial

¶385prejudicial effect) (citation omitted); Harris, 314 Ga. at 271 (noting

¶386that “‘[i]t does not follow because an accused person may have a bad

¶387character that he is guilty of the particular offense for which he is

¶388being tried’”) (citation omitted).

¶389 In all, however, “the exclusion of evidence under Rule 403 is an

¶390extraordinary remedy which should be used only sparingly.” Id. at

¶391262 (citation and punctuation omitted).

¶392 (b) Relevance of the Rap Music Video

¶393 As an initial matter, we note that Baker does not argue that

¶394the rap music video was not relevant evidence under Rules 401 and

¶395402. Indeed, as the trial court indicated in its orders regarding the

¶396admission of the rap music video, the video tended to prove that

¶397Baker was involved in Crawford’s rap music business and was part

¶398of his “entourage,” making it more likely that Baker was present at

¶399the nightclub just after Crawford’s performance, around the time of

¶400the shooting. Thus, the video was relevant in that respect and

¶401 25 satisfies Rule 401.

¶402 The State argues that the video was also relevant with respect

¶403to four other purposes. First, the State asserts that the video was

¶404relevant as “intrinsic evidence” to complete the story of the crime.

¶405Second, the State claims that the video was relevant to identity

¶406because the lead detective testified that during his investigation, he

¶407reviewed the video, determined that one of the men in the video was

¶408the same man shown on the surveillance recordings of the

¶409altercation with the security guards, and “eventually learned” that

¶410the man was Baker. The State also asserts that the video was

¶411relevant to establish Baker’s motive to shoot toward the security

¶412guards—that Baker’s involvement in the entourage caused him to

¶413believe he was “a big shot” and become enraged when the security

¶414guards “disrespected” him. Finally, the State argues that the video

¶415was relevant to show that Baker had access to the guns used during

¶416the shooting. Because Baker does not argue that the video was not

¶417relevant, and particularly because “[t]he test for relevance is

¶418generally a liberal one,” we will assume without deciding that the

¶419 26 video was relevant for these purposes as well. See Harris, 314 Ga.

¶420at 262, 272 (assuming without deciding that evidence of the

¶421appellant’s sexual messages and conduct was relevant under Rule

¶422401 to prove his motive to murder the victim before ultimately

¶423concluding that much of the evidence was not admissible under Rule

¶424403).

¶425 (c) Admissibility of the Rap Music Video under Rule 403

¶426 Turning to Rule 403, the rap music video had little, if any,

¶427probative value in proving the points discussed above. First, the

¶428video’s probative force to show that Baker was part of Crawford’s

¶429entourage and was present at the nightclub around the time of the

¶430shooting was minimal. That is because at trial, Baker did not

¶431dispute—and in fact admitted—that he was close friends with

¶432Crawford; he was Crawford’s road manager; he toured with

¶433Crawford as part of his entourage; he traveled in the van with

¶434Crawford to the nightclub; he hung out in the “VIP” room; and when

¶435security guards refused to let him back inside the nightclub, he and

¶436 27 the man in the camouflage cap fought with them. 15 In addition, the

¶437State presented other substantial evidence to establish Baker’s

¶438relationship with Crawford and his presence at the nightclub,

¶439including Dunn’s testimony on those points, the surveillance

¶440recordings from the nightclub showing Baker fighting with security

¶441guards, a photo of Baker and Crawford on stage at the nightclub,

¶442and evidence that Baker’s fingerprints were on two plastic cups in

¶443the “VIP” room. Put simply, given the extensive, definitive, and

¶444undisputed evidence that Baker worked for and traveled with

¶445Crawford and that Baker was at the nightclub near the time of the

¶446 15 In particular, defense counsel told the jury during his opening statement that Baker and Crawford had been “friends since adolescence”; Baker “was working for [Crawford] as his road manager”; Baker toured the country with Crawford to assist with “dozens of shows”; Baker traveled with Crawford in the van to the nightclub in Warner Robins; they “were directed to this VIP area”; after the show, security guards prevented Baker from reentering the nightclub, and Baker (along with the unknown man in the camouflage cap) got into an altercation with the guards. And Baker admitted during his direct examination that Crawford was a “very close friend”; the two had known each other since Baker was “four years old”; he worked as Crawford’s road manager and toured with him; he traveled in the van with Crawford to the nightclub in Warner Robins; they went to the “VIP” room; he sometimes performed on stage with Crawford; he was on stage during Crawford’s performance at the nightclub; and he and the man in the camouflage cap fought with security guards. 28 shooting, it was not necessary to show the rap music video—which

¶447supported only the inference that Baker was part of Crawford’s

¶448entourage. Thus, the rap music video was minimally probative to

¶449establish those points. See Olds, 299 Ga. at 76 & n.15 (explaining

¶450that if a point is proved by other strong evidence, “the marginal

¶451value of the evidence in question” is decreased and that “‘[i]f the

¶452evidence . . . is cumulative of evidence already introduced, exclusion

¶453is more likely’”) (citation omitted).

¶454 For similar reasons, the rap music video lacked any significant

¶455probative value to complete the story of the crime (and thus had

¶456little, if any, value as intrinsic evidence) or to establish identity by

¶457proving how the lead detective determined that Baker was the man

¶458shown in the surveillance recordings of the fight at the nightclub.

¶459As we explained above, Baker admitted—and other evidence

¶460established—the aspects of the “story of the crime” that the State

¶461asserts the rap music video proved. And the lead detective’s

¶462determination that Baker was the man shown in the surveillance

¶463recordings was a detail of the investigation that was of little

¶464 29 consequence, particularly in light of Baker’s admission and the other

¶465undisputed evidence proving that he was in fact the man shown on

¶466the recordings. See Olds, 299 Ga. at 76 & n.15.

¶467 The probative value of the rap music video to show Baker’s

¶468motive was also negligible, at best. In this respect, the State failed

¶469to show a “logical and necessary link” between Baker’s waving and

¶470pointing a gun during his performance of a rap song and his

¶471motivation to shoot toward the security guards at the nightclub. If

¶472anything, the alleged “link” between the video and Baker’s motive

¶473appears to be the video’s portrayal of Baker as a violent gunman—a

¶474link that essentially amounts to impermissible propensity evidence.

¶475Kirby v. State, 304 Ga. 472, 486-487 (819 SE2d 468) (2018)

¶476(explaining that “[m]otive is the reason that nudges the will and

¶477prods the mind to indulge the criminal intent” and that evidence of

¶478motive “must be ‘logically relevant and necessary to prove

¶479something other than the accused’s propensity to commit the crime

¶480charged”) (citation and punctuation omitted). See also Harris, 314

¶481Ga. at 270 (noting that evidence of an alleged motive that lacks a

¶482 30 specific, logical link to the alleged crimes often supports only

¶483improper propensity arguments). Moreover, the State presented

¶484evidence apart from the rap video—the surveillance recordings and

¶485testimony from two security guards—to establish Baker’s alleged

¶486motive to shoot toward the security guards because he believed that

¶487they had “disrespected” him. See Olds, 299 Ga. at 76 & n.15.

¶488 Finally, the rap music video’s probative value to prove that

¶489Baker had access to the guns used during the shooting was, at most,

¶490trivial. We acknowledge that because there was no proof connecting

¶491Baker to the guns used in the shooting, which the evidence indicated

¶492were a .45-caliber gun of an undetermined make and model and a

¶493Smith & Wesson 9mm pistol, the State had a real need to tie Baker

¶494to those guns. But the rap music video tended to prove little, if

¶495anything, about Baker’s access to those types of guns near the time

¶496of the shooting. First, although Baker claimed in his pretrial motion

¶497to exclude the video that it was “filmed in early 2019,” the State

¶498offered no evidence at trial about when the performance was

¶499recorded, which reduced the video’s probative force to prove that

¶500 31 Baker had access to guns near the time of the shooting in July 2019.

¶501And the State did not argue at trial or present any evidence showing

¶502that the gun Baker waved around in the rap music video was used,

¶503or even could have been used, in the shooting. The only evidence

¶504presented at trial about the gun Baker held in the rap music video

¶505was Dunn’s testimony that he did not know the gun’s type (or even

¶506whether it was real or fake) and Baker’s similar testimony that the

¶507gun was not his, he did not know its type, he thought it was “a

¶508Glock,” and he used it in the performance “to look cool.” Thus, the

¶509rap video established only that at some unidentified point in time,

¶510Baker held what may have been a Glock handgun during a rap

¶511music performance. See Olds, 299 Ga. at 75 (explaining that

¶512“‘[p]robative value refers to the strength of the connection between

¶513the evidence and what it is offered to prove’”) (citation omitted).

¶514Compare Wilson v. State, 315 Ga. 728, 739-740 (883 SE2d 802)

¶515(2023) (holding that the trial court did not abuse its discretion under

¶516Rule 403 by admitting into evidence a rap music video that was

¶517filmed 11 days after the victim’s murder and showed the appellant’s

¶518 32 co-defendants “flash[ing]” a handgun that two witnesses testified

¶519was the murder weapon); United States v. Smith, 967 F3d 1196,

¶5201204-1206 (11th Cir. 2020) (holding that the trial court did not abuse

¶521its discretion under Federal Rule of Evidence 403 by admitting

¶522evidence of the appellant’s rap music video, which showed him

¶523holding a pistol that the robbery victim testified was similar to the

¶524one he used to strike her). 16

¶525 In contrast to the exceedingly low probative value of the rap

¶526music video, the prejudice flowing from the evidence the State

¶527presented that Baker waved a handgun, pointed it directly at the

¶528 16 We note that the probative value of the rap music video was further

¶529diminished by the State’s failure to present any evidence that Baker’s performance of Crawford’s rap song was not wholly theatric. See United States v. Gamory, 635 F3d 480, 493 (11th Cir. 2011) (explaining that a rap video was minimally probative under Federal Rule of Evidence 403 because there was no proof that the appellant “authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by [the appellant]”); State v. Skinner, 218 N.J. 496, 521 (95 A3d 236) (2014) (“The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views.”); Commonwealth v. Gray, 463 Mass. 731, 753-755 (978 NE2d 543) (2012) (explaining that a rap music video was “minimally if at all probative” because there was no evidence that the rap lyrics were biographical or indicative of the appellant’s motive). 33 camera, and mimicked shooting the gun while rapping on a street

¶530with a large group of men, some of whom also brandished guns and

¶531made hand signs, was high. As the trial court noted in discussing

¶532the rap music video at trial (outside the presence of the jury), “the

¶533video [was] . . . glorifying of violence and gun violence and a sort of

¶534street life, glamorizing it.”

¶535 Yet the record shows that the trial court’s failure to recognize

¶536the danger of unfair prejudice from the video when it ruled on its

¶537admissibility enabled the State’s improper use of the video

¶538throughout the trial. In particular, the trial court allowed the

¶539prosecutor to capitalize on the video’s prejudicial impact by

¶540emphasizing the video not to prove the purposes for which the State

¶541now asserts the video was probative (i.e., to complete the story of the

¶542crime, to establish Baker’s identity, to show Baker’s motive, or to

¶543prove that Baker had access to the guns used in the shooting), but

¶544for the purpose of showing Baker’s alleged propensity for violence

¶545based on the theory that he was associated with a rap artist. For

¶546example, when examining Dunn, the lead detective, and Baker, the

¶547 34 prosecutor emphasized the portion of the rap video in which Baker

¶548waved a handgun, and she asked Dunn and Baker about the video’s

¶549“promoting” gun violence—even though she did not offer argument,

¶550let alone evidence, that the gun shown in the video was the gun used

¶551in the shooting. And when the prosecutor asked Baker whether the

¶552entourage traveled with guns and he responded, “Why would we,

¶553though,” she again used the video to exaggerate Baker’s violent

¶554nature, saying “Well, let’s see why,” before she played the video for

¶555the jury a third time. Even worse, during closing argument, the

¶556prosecutor expressly asserted that the rap music video proved that

¶557those who participate in making rap music, such as Baker, had a

¶558propensity for violence, saying, “Go back to that Ghetto Angels

¶559video. Right? That’s all they know, the gun violence. They want to

¶560promote it.” The prosecutor then drew a comparison between the

¶561shooting and the rap music video, stating, “[I]t’s not a game, it’s not

¶562about a rap video. It’s real.” See, e.g., Brown v. State, 303 Ga. 158,

¶563162-163 (810 SE2d 145) (2018) (explaining that the probative value

¶564of evidence that the appellant committed a prior aggravated assault

¶565 35 was “extremely low at best” and was “‘substantially outweighed by

¶566its danger of creating prejudice,’” because the evidence had “‘no

¶567purpose other than to show appellant’s propensity toward violence’”)

¶568(citation omitted). 17

¶569 The unfair prejudice from the evidence of the rap music video

¶570substantially outweighed its minimal probative value, making this

¶571evidence the sort that Rule 403 was meant to exclude: “matter of

¶572scant or cumulative probative force, dragged in by the heels for the

¶573sake of its prejudicial effect.” Harris, 314 Ga. at 277 (citation and

¶574punctuation omitted). The trial court therefore abused its discretion

¶575under Rule 403 by admitting the rap music video into evidence. See

¶576id. at 274-280 (holding that the trial court abused its discretion

¶577under Rule 403 by admitting evidence of the appellant’s sexual

¶578activities on the day before the victim’s death, which had “trivial

¶579probative value” and was “very prejudicial”); Jackson v. State, 306

¶580 17 The dissenting opinion says in passing that it does “not condone the

¶581prosecutor’s potential misuse of the video to make a propensity argument.” But it undermines that disavowal by focusing on the amount of time the rap music video was shown to the jurors instead of on the significantly harmful ways the prosecutor used the video even when it was not being played. 36 Ga. 69, 79-80 (829 SE2d 142) (2019) (holding that the trial court

¶582abused its discretion under the Rule 403 part of the test pursuant to

¶583OCGA § 24-4-404 (b) by admitting evidence that the appellant was

¶584involved in a prior shooting, because the probative value of the

¶585evidence was “minimal at best”; it was “undoubtedly prejudicial”;

¶586and the prosecutor enhanced the prejudice by extensively

¶587questioning the appellant about the prior shooting to try to establish

¶588that he was “someone with a violent character”). See also United

¶589States v. Gamory, 635 F3d 480, 493 (11th Cir. 2011) (holding that

¶590the trial court abused its discretion under Federal Rule of Evidence

¶591403 by admitting evidence of a rap music video and explaining that

¶592“the probative value of the rap video was minimal at best,” partly

¶593because any facts that the video made more probable “were not

¶594seriously contested at the time the video was introduced” and there

¶595was no evidence that the appellant adopted the “views and values

¶596reflected in the video,” while “the substance of the rap video was

¶597heavily prejudicial,” as the lyrics “could reasonably be understood as

¶598 37 promoting a violent and unlawful lifestyle”).18

¶599 18 The dissenting opinion concludes that the admission of the rap music

¶600video was not an abuse of discretion under Rule 403, asserting that we have overestimated the unfair prejudice from the video and downplayed its probative value. In determining that the video was not overly prejudicial, the dissenting opinion ignores the prosecutor’s repeated questions and arguments about the video’s (and Baker’s) “promoting” gun violence, which improperly emphasized Baker’s alleged propensity for violence. And the dissent’s assertion that, by considering the prosecutor’s improper closing arguments about the rap music video in assessing unfair prejudice, we have “conflate[d] the question of unfair prejudice under Rule 403 with the question of whether the video, in the context of the entire trial, was harmful or harmless,” is simply incorrect. In weighing probative value and unfair prejudice under Rule 403, a trial court should consider how the evidence at issue might be used within the context of the evidence and arguments presented at trial, including how a prosecutor could capitalize on the prejudicial effect of the evidence during closing argument. And in reviewing whether a trial court abused its discretion in conducting 403’s balancing test, an appellate court may properly consider whether the risk of unfair prejudice was actualized at trial. See, e.g., Whited v. State, 315 Ga. 598, 605-606 (883 SE2d 342) (2023) (noting, in considering unfair prejudice under Rule 403, that the State’s opening statements and closing arguments did not focus on the evidence at issue); Harris, 314 Ga. at 273-280 (noting the trial court’s pretrial ruling admitting evidence of the appellant’s sexual messages and conduct under Rule 403 and then, in concluding that the court abused its discretion, considering all of the evidence presented at trial—including the State’s theory at trial of the appellant’s motive; whether the evidence at issue was needlessly cumulative of other evidence presented at trial; the probative value of the evidence, in light of the other strong evidence presented at trial that proved the same point; and the unfair prejudice flowing from the evidence at trial, which was “compound[ed]” by the fact that the prosecutor hinted during his closing argument that the appellant had not been charged with any crimes related to the evidence that he sent sexual messages to a child); Jackson, 306 Ga. at 78-79 (holding that the trial court abused its discretion under the Rule 403 part of the test pursuant to OCGA § 24-4-404 (b) by admitting evidence that the appellant was involved in a prior shooting, and evaluating as part of that analysis the State’s need for the evidence—given the other evidence presented at trial—and its

¶601 38  (d) Harm

¶602 Having concluded that the trial court abused its discretion

¶603under Rule 403 by admitting the excerpt of the rap video into

¶604evidence, we must now assess whether that error caused harm that

¶605warrants a reversal of Baker’s conviction. “‘The test for determining

¶606nonconstitutional harmless error is whether it is highly probable

¶607prejudicial effect—which was “enhanced” by the prosecutor’s extensively questioning the appellant about the shooting for the purpose of “establish[ing the appellant] as someone with a violent character”); Kirby, 304 Ga. at 486 (concluding that the trial court abused its discretion under the Rule 403 part of the test pursuant to OCGA § 24-4-404 (b) by admitting evidence that the appellant committed a prior armed robbery and aggravated assault, and discussing as part of that analysis its low probative value in light of the other strong evidence presented at trial to prove the same point and its prejudicial effect, which was “reduced” because the jury was presented with other evidence that the appellant had committed another assault and robbery). As to the dissenting opinion’s assessment that the video’s probative value was more significant than we acknowledge because the video “showed that Baker was familiar and comfortable with handguns,” we have explained time and again that when evidence is not particularly strong to prove the point for which it is offered, the probative value of the evidence is diminished, not increased. See, e.g., Olds, 299 Ga. at 75-76. Here, the State did not use the video to connect the gun used in the crimes to the gun Baker held in the video, so the video was not strong evidence and had little probative value in that respect. In sum, the dissent misses the point: the contents of the video, standing alone, were not particularly prejudicial. But the video’s exceedingly low probative value, compared to its outsized risk of unfair prejudice, made its admission an abuse of discretion under Rule 403. And indeed, that risk— which was apparent at the time the trial court had to decide whether to admit the video—was actualized by the prosecutor’s improper use of the video to show Baker’s propensity for gun violence. 39 that the error did not contribute to the verdict.’” Jivens v. State,

¶608Case No. S23A1078, 2023 WL 8721065, at *4 (decided Dec. 19, 2023)

¶609(citation omitted). Accordingly, the error in admitting the rap music

¶610video into evidence may be deemed harmless only if “‘it is highly

¶611probable that the error did not contribute to the verdict.’” Id.

¶612(citation omitted). Applying that standard, we conclude that the

¶613trial court’s error in this case was not harmless.

¶614 As discussed above, the rap music video was highly prejudicial.

¶615It allowed the State to introduce impermissible propensity evidence

¶616by portraying Baker as a threatening gunman, and the prosecutor

¶617severely exacerbated the video’s prejudicial impact by emphasizing

¶618that it showed Baker’s predisposition to gun violence. Although the

¶619video excerpt was relatively brief—it was only about 30-seconds long

¶620(as the trial court pointed out in its order denying Baker’s motion

¶621for new trial)—the prosecutor made it a focal point of the trial. She

¶622played the video for the jury three times at three different points

¶623during the trial; questioned three witnesses about the video

¶624(specifically highlighting that the video advocated gun violence); and

¶625 40 then emphasized during her closing argument that Baker and other

¶626rap artists “promote[d]” gun violence, because “[t]hat’s all they

¶627know,” a pointed argument that reinforced to the jury Baker’s

¶628alleged violent character. See, e.g., Strong v. State, 309 Ga. 295, 317

¶629(845 SE2d 653) (2020) (noting, in reversing the appellant’s

¶630convictions on the ground that an evidentiary error was not

¶631harmless, that the State “emphasized” the evidence during closing

¶632argument); Thompson v. State, 302 Ga. 533, 542 (807 SE2d 899)

¶633(2017) (explaining, in reversing the appellant’s convictions due to

¶634the improper admission of evidence that was not harmless, that the

¶635prosecution emphasized during closing argument that the evidence

¶636showed that the appellant had a propensity to commit crimes).19

¶637 19 We note that the trial court instructed the jury during the final charge

¶638that the lawyers’ closing arguments were not evidence, but under these circumstances, that generalized instruction was not sufficient to cure the prejudicial impact of the prosecutor’s improper propensity argument. Cf. Jones v. State, 292 Ga. 656, 662 (740 SE2d 590) (2013) (explaining that the standard instruction that closing arguments are not evidence was insufficient to cure the prosecutor’s “highly prejudicial” improper argument that the appellant was involved in another shooting, which was not supported by any evidence at trial, in violation of OCGA § 17-8-75). In addition, the State contends that other aspects of the trial mitigated any harm from the admission of the video: namely, that in response to the

¶639 41  Moreover, other than the improperly admitted evidence of the

¶640rap music video, the State offered no connection between Baker and

¶641guns. The State introduced no evidence showing that Baker carried

¶642or had access to guns regularly, much less that he was carrying a

¶643gun on the night of the shooting or that the gun displayed in the rap

¶644video was used in the shooting. In short, the way in which the rap

¶645music video was used at trial aggrandized a connection between

¶646Baker and gun violence that was not properly established by any

¶647other evidence. Under these circumstances, the evidence of the rap

¶648prosecutor’s questions during jury selection about whether potential jurors had heard about rap artists committing crimes and whether that would “color [their] perception” of the case, no jurors expressed any bias, and that defense counsel elicited testimony indicating, and asserted during closing argument, that the video was a performance that merely showed Baker “wanting to act cool.” We disagree. The jurors’ general attitudes toward rap artists at the time of jury selection says little, if anything, about how they responded to the prosecutor’s belaboring of the improperly admitted evidence of the rap music video at trial. See Hill v. State, 308 Ga. 638, 648 (842 SE2d 853) (2020) (explaining that although the jurors stated during jury selection that they could remain impartial even though the appellant was visibly shackled during the trial, at that point in the proceedings, they could “only speculate” as to how they would feel after being exposed to the practice; accordingly, the jurors’ statements did not render the trial court’s error in requiring the appellant to be shackled at trial harmless). As to the testimony and argument that the video simply showed Baker’s attempt “to act cool,” we acknowledge that defense counsel’s response to the video reduced its harmful effect, but that slight mitigation was outweighed by the prosecutor’s repeated and improper use of the video to show Baker’s alleged propensity for gun violence. 42 music video was not “‘relatively benign’ or merely cumulative, as we

¶649often have concluded in cases deeming improperly admitted

¶650evidence harmless.” Harris, 314 Ga. at 284 (citation omitted).

¶651Compare Jivens, 2023 WL 8721065, at *5 (explaining that the

¶652allegedly improper admission of photographs of the appellant with

¶653firearms was harmless, partly because “any prejudicial effect these

¶654photographs may have had was minimized by properly admitted

¶655evidence that [the appellant], in fact, had access to guns”).

¶656 By contrast, the other evidence showing that Baker

¶657participated in shooting Head was not especially compelling,

¶658especially given the equivocation of multiple witnesses. See Harris,

¶659314 Ga. at 284 (explaining that “‘compelling properly admitted

¶660evidence of guilt’” may offset a high risk of prejudice from improperly

¶661admitted evidence) (citation omitted). See also OCGA §§ 16-5-1 (a)

¶662(defining malice murder); 16-2-20 (defining parties to a crime). As

¶663we recounted in Division 1 above, only one eyewitness—Orr-

¶664Oglesby—identified Baker as a shooter, and although she said

¶665during her interviews with the lead detective that she saw two

¶666 43 shooters, provided a description of one of the shooters that matched

¶667Baker, and then identified Baker during her interview with the

¶668detective in August 2019 and again at trial, she also said during her

¶669August 2019 interview that she “d[id]n’t think the light-skinned

¶670guy” (referring to Baker) was a shooter. Moreover, evidence was

¶671presented that after that interview and at the time of trial, Orr-

¶672Oglesby had a motive to testify against Baker, because she had

¶673recently been arrested on several criminal charges that were still

¶674pending, which authorized the jury to make additional inferences

¶675that might undermine Orr-Oglesby’s credibility.

¶676 The State points out that Orr-Oglesby’s account at trial was

¶677supported by other evidence—including the surveillance recordings

¶678showing Baker (in a white shirt) and the man in the camouflage cap

¶679(in a black shirt) walking together toward the pawn shop; testimony

¶680that patrons saw a man in a white shirt walking with a man in a

¶681black shirt toward the pawn shop, saying something like, “we gonna

¶682get them,” moments before the shooting; and the shell casings near

¶683the pawn shop, which indicated that two guns were used in the

¶684 44 shooting. Notably, however, Orr-Oglesby’s account was also

¶685contradicted by other evidence. Orr-Oglesby testified that Baker

¶686and the man in the camouflage cap shot and then fled in a van that

¶687was parked on the side of the strip mall, but Dunn testified that he

¶688did not see anyone get into the entourage’s van, which had been

¶689parked behind the strip mall, after he heard gunshots. Moreover, in

¶690contrast to Orr-Oglesby’s testimony, the off-duty police officer told

¶691investigators at the crime scene that he saw a shooter (with no

¶692mention of a second shooter) wearing a light shirt and a ball cap.

¶693And although the ballistics evidence showed that two guns were shot

¶694near the pawn shop, witnesses testified that they also heard another

¶695set of gunshots; the defense presented evidence that shots were fired

¶696from three vehicles (the descriptions of which did not match the

¶697entourage’s van) near the nightclub around the time of the shooting;

¶698investigators found several additional shell casings in that area; and

¶699the State presented no evidence of the type of bullet that killed

¶700Head.

¶701 To be sure, the State presented substantial evidence of Baker’s

¶702 45 motive to participate in the shooting: namely, that he and the man

¶703in the camouflage cap were angry with the security guards after the

¶704fight. But Baker did not dispute that he and the man in the cap

¶705fought with the guards or that he was angry. And to rebut the

¶706State’s theory that his anger motivated him to perpetrate a shooting

¶707with the man in the cap, Baker provided a not-implausible account:

¶708after the fight, he simply parted ways with the man—whom he did

¶709not know and whose presence he wanted to leave, given that the

¶710man had escalated the fight—and got in the van, where he then

¶711heard gunshots.20

¶712 20 The dissenting opinion contends that our harmless-error analysis is

¶713“incomplete because it fails to account for the fact that Baker elected to testify at his trial,” which it suggests would diminish the harm of the error in admitting the rap video because “the jury did not find [Baker] credible.” But we have accounted for Baker’s testimony above, concluding that his version of the events on the night of the shooting was not implausible. Although the jury was authorized to disbelieve Baker’s account, we would expect that the prosecutor’s repeated use of the video to emphasize Baker’s alleged propensity for gun violence would have significantly undermined his credibility with the jurors. In other words, the prosecutor’s use of the video to emphatically cast Baker as a violent gunman before the jury had an opportunity to listen to Baker’s own account and assess his credibility made it more likely that the jury would disbelieve Baker’s testimony not because it was unworthy of belief, but because he had been portrayed as the sort of person who would commit a crime like the one with which he was charged. 46  Given all of this evidence, we cannot say that it is “highly

¶714probable” that the trial court’s improper admission of the evidence

¶715of the rap music video did not contribute to the guilty verdict, and

¶716thus the State has not met its burden of showing that the error was

¶717harmless. We therefore reverse Baker’s malice murder conviction.

¶718See, e.g., Harris, 314 Ga. at 288-289 (reversing the appellant’s

¶719convictions due to the improper admission of evidence under Rule

¶720403, which was not harmless, because the evidence was highly

¶721prejudicial and the proof of the appellant’s guilt “was not

¶722‘overwhelming,’ ‘compelling,’ or even strong”); Strong, 309 Ga. at

¶723316-318 (reversing the appellant’s convictions on the ground that

¶724improperly admitted evidence was not harmless, because the

¶725evidence was highly prejudicial and not cumulative of other,

¶726properly admitted evidence; the State emphasized the evidence at

¶727trial; and the other evidence of the appellant’s guilt was “not

¶728overwhelming,” particularly given that the State’s two eyewitnesses

¶729gave somewhat inconsistent accounts of the murder and the

¶730appellant “provided a not-outlandish account of the incident”);

¶731 47 Heard v. State, 309 Ga. 76, 91 (844 SE2d 791) (2020) (reversing the

¶732appellant’s convictions based on improperly admitted evidence that

¶733was not harmless, because the evidence was “highly prejudicial and

¶734not at all cumulative . . . and the evidence that [the appellant]

¶735committed the charged crimes was not compelling”). 21

¶736 Judgment reversed. All the Justices concur, except Boggs, C.J., and LaGrua, J., who dissent.

¶737 21 Although the evidence presented at trial was not especially strong,

¶738when viewed in the light most favorable to the verdicts, it was constitutionally sufficient to sustain the jury’s guilty verdicts. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979); Hamilton v. State, 317 Ga. 337, 340 (893 SE2d 54) (2023) (concluding that the evidence, which showed that the appellant initiated a dispute with the victim and then participated with his co-defendant in shooting him, was constitutionally sufficient to support the appellant’s conviction for felony murder based on aggravated assault); Draughn v. State, 311 Ga. 378, 381-382 (858 SE2d 8) (2021) (holding that the evidence supporting the appellants’ convictions for malice murder was constitutionally sufficient, partly because an eyewitness identified them as the assailants, and explaining that although there was conflicting evidence as to their involvement, “‘[i]t is the jury’s role to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient’”) (citation omitted). Thus, the State may retry Baker if it so chooses. See Harris, 314 Ga. at 289; Strong, 309 Ga. at 318 n.25. 48  LAGRUA, Justice, dissenting.

¶739 The majority opinion holds that the trial court abused its

¶740discretion by admitting the 33-second clip from a rap music video

¶741into evidence because the video’s “probative value [was]

¶742substantially outweighed by the danger of unfair prejudice[.]” OCGA

¶743§ 24-4-403. Under such circumstances, reversal is only necessary if

¶744the error was harmful, which the majority opinion also holds. I

¶745disagree as to both. The trial court did not err in admitting the video,

¶746but, even if it did, any error was harmless. Because I would affirm

¶747the judgment of the trial court, I respectfully dissent.

¶748 It is uncontested—even admitted by Baker and captured on

¶749camera—that Baker and a man in a camouflage cap attempted to

¶750reenter the nightclub shortly after 2:00 a.m., but they were denied

¶751reentry after a brief argument and physical struggle with the

¶752security guards. Baker and the man in the camouflage cap walked

¶753away in the direction of a pawn shop, with Baker placing his arm

¶754around the man in the camouflage cap. Uncontested evidence also

¶755shows that one of those security guards near the door was shot and

¶756 49 killed minutes later. At least five witnesses testified that the gunfire

¶757came from the direction of the pawn shop, where shell casings were

¶758also found. Surveillance footage did not capture the shooting, but

¶759Orr-Oglesby testified that she saw two men matching the

¶760descriptions of Baker and the man in the camouflage cap both

¶761shooting guns toward the nightclub from the direction of the pawn

¶762shop. Another nightclub patron testified that she saw two men

¶763walking toward the pawn shop, one with his arm around the other,

¶764and she heard one say, “We gonna get them,” followed shortly by

¶765gunfire. Baker testified that, by the time the shooting started, he

¶766had already parted with the man in the camouflage cap and boarded

¶767the van. However, no other witnesses, including Dunn, could

¶768corroborate that Baker was in the van before the shooting.

¶769Accordingly, the majority opinion concludes that this evidence was

¶770constitutionally sufficient to support Baker’s conviction. Majority

¶771Op. at 48 n.21.

¶772 But the majority opinion also holds that all this evidence “was

¶773not especially compelling.” Majority Op. at 43. I do not agree; rather,

¶774 50 the evidence against Baker was substantial. To support its contrary

¶775holding, the majority opinion undermines Orr-Oglesby’s

¶776identification of Baker as the shooter by listing multiple instances

¶777in which she identified Baker as the shooter but one instance where

¶778she equivocated. However, the majority opinion also acknowledges

¶779that the core of her testimony was largely consistent with other

¶780uncontested evidence. She heard some commotion at the front door

¶781of the nightclub and then saw two men near the pawn shop shooting

¶782toward the nightclub—two men that were identified at trial as

¶783Baker and the man in the camouflage cap. The inconsistencies

¶784highlighted by the majority opinion generally do not contradict that

¶785narrative, except for the testimony of an off-duty police officer at the

¶786scene, who testified that he “couldn’t get a good sight of any

¶787shooters” and could barely remember what he saw. The majority

¶788opinion also explains that Orr-Oglesby had a motive to lie because

¶789she was on probation and was recently arrested on a bench warrant

¶790for a completely unrelated misdemeanor in a separate county, a

¶791motive which I find weak and irrelevant considering that she was

¶792 51 not facing those charges during her prior identification of Baker.

¶793 Now to the question on appeal: did the trial court abuse its

¶794discretion by admitting the video under Rule 403, and, if so, was it

¶795harmful error? The majority opinion answers “yes” to both questions

¶796for roughly the same reason: “the rap music video was highly

¶797prejudicial.” Majority Op. at 40. I disagree.

¶798 I do not agree that the danger of unfair prejudice substantially

¶799outweighed the video’s probative value, which is the difficult test

¶800that Rule 403 sets out. The video was not as prejudicial as the

¶801majority opinion holds. “[I]n reviewing issues under Rule 403, we

¶802look at the evidence in a light most favorable to its admission,

¶803maximizing its probative value and minimizing its undue

¶804prejudicial impact.” Lee v. State, ___ Ga. ___, ___ (4) (___ SE2d ___)

¶805(Case No. S23A1034) (February 6, 2024) (citation and punctuation

¶806omitted). The 33-second clip simply shows Baker and others singing,

¶807smiling, dancing on a car, and waving around handguns, with Baker

¶808removing and inserting an extended magazine. The video was not

¶809particularly offensive or unusual. “A defendant’s appearance in a

¶810 52 rap video . . . is not per se prejudicial.” Wilson, 315 Ga. at 739 (8) (a).

¶811This is true even when the video is “replete with obscenities and

¶812racial slurs.” Id. But here, the lyrics were largely undecipherable,

¶813see Majority Op. at 21-22 n.13, further diminishing any danger of

¶814unfair prejudice. Cf. Gamory, 635 F3d at 493 (holding that the

¶815“substance of the rap video was heavily prejudicial” because the

¶816lyrics “could reasonably be understood as promoting a violent and

¶817unlawful lifestyle”).

¶818 The real issue garnering the majority opinion’s focus is the

¶819State’s use of the video once admitted. The video was played three

¶820times: first during Dunn’s testimony, second during the lead

¶821detective’s testimony, and last during Baker’s testimony. However,

¶822each time, the video was used for a permitted purpose. In context,

¶823Dunn and Bakers’ testimony regarding the video focused on gun

¶824ownership, and the detective’s testimony focused on how he

¶825identified Baker as the shooter.

¶826 The prosecutor also briefly referenced the video twice in her

¶827closing argument, with one reference merely in passing. Baker did

¶828 53 not object to either reference and does not raise the closing

¶829argument’s impropriety on appeal. Baker has thus waived his right

¶830to raise an independent claim that the prosecutor made an improper

¶831propensity argument in closing. See Gates v. State, 298 Ga. 324, 328-

¶832329 (4) (781 SE2d 772) (2016). Moreover, when the trial court ruled

¶833on the admissibility of the video, it could not possibly have factored

¶834the prosecutor’s later closing argument into its evaluation of

¶835prejudice under Rule 403. While trial courts certainly must consider

¶836the danger of unfair prejudice inherent to the contested evidence, we

¶837should not fault the trial court for failing to predict that the State

¶838will turn around and openly and intentionally use that evidence for

¶839improper purposes. The trial court should be able to make rulings

¶840with the understanding that the State will later follow the rules of

¶841evidence. I still disagree with the majority opinion on how much

¶842danger of unfair prejudice the video presented. But I do not calculate

¶843in how the State’s eventual and actual use of the video impacted the

¶844verdict. That is more appropriately—and more commonly—a part of

¶845the harmless-error analysis. See, e.g., Morrell v. State, 313 Ga. 247,

¶846 54 261-262 (2) (869 SE2d 447) (2022) (considering State’s mentions of

¶847prior act evidence in closing arguments when assessing harmless

¶848error).

¶849 But by focusing on the State’s closing argument in the unfair

¶850prejudice analysis, the majority opinion appears to conflate the

¶851question of unfair prejudice under Rule 403 with the question of

¶852whether the video, in the context of the entire trial, was harmful or

¶853harmless. Perhaps we have not been so careful to maintain this

¶854division in our past decisions regarding Rule 403 prejudice. See, e.g.,

¶855Whited v. State, 315 Ga. 598, 606 (3) (883 SE2d 342) (2023)

¶856(affirming trial court’s admission of evidence under Rule 403, in part

¶857by explaining “it is noteworthy in considering the extent of any

¶858unfair prejudice that the State’s opening and closing statements did

¶859not focus” on the evidence in question, but, in support, only citing

¶860cases doing the same in their harmless-error analyses). But we have

¶861always maintained that exclusion under Rule 403 is an

¶862“extraordinary remedy which should be used only sparingly . . . .” Id.

¶863at 605 (citation and punctuation omitted). The initial admission or

¶864 55 exclusion of the evidence itself, often done before the trial even

¶865begins, is its own consideration. Here, when the trial court made its

¶866ruling to admit the video, it was properly focused on the video

¶867itself—not what the State might argue in closing. See Wilson, 315

¶868Ga. at 739 (8) (a) (explaining that the question is “what specifically

¶869about this video might cause unfair prejudice) (emphasis in

¶870original).

¶871 I also disagree with the majority opinion’s holding regarding

¶872the video’s probative value. For example, I do not agree that the

¶873video’s probative value to prove access to the guns was “trivial.”

¶874Majority Op. at 31. The State offered no connection between Baker

¶875and guns other than the video. The video showed that Baker was

¶876familiar and comfortable with handguns, which was probative to a

¶877critical part of the State’s case. Regarding the other permissible uses

¶878of the video, the majority opinion only notes other trial evidence,

¶879including Baker’s testimony, that served a similar purpose as the

¶880video, potentially diminishing its probity. However, I do not agree

¶881that the video lost its probative value to the degree that majority

¶882 56 opinion holds. Accordingly, the danger of unfair prejudice did not

¶883substantially outweigh the video’s probative value here. The video

¶884was more probative and less prejudicial than the majority opinion

¶885holds.

¶886 Like the Rule 403 standard, the test for harmless error is also

¶887difficult to meet, as we must determine “whether it is highly

¶888probable that the error did not contribute to the verdict.” Jivens, ___

¶889Ga. at ___ (2) (citation omitted; emphasis supplied). I do not condone

¶890the prosecutor’s potential misuse of the video to make a propensity

¶891argument, but she did not make “it a focal point of the trial.”

¶892Majority Op. at 40. Ultimately, this case involved 19 witnesses—

¶893including Baker himself and someone who actually saw the

¶894shooting—and the trial transcript spans over 800 pages. The video

¶895was played for a total of 99 seconds, and discussion of the video took

¶896up only a few minutes of the four-day trial—a trial, as I have

¶897explained, in which substantial evidence of Baker’s guilt was

¶898presented to the jury. Further, testimony by Baker and Dunn put

¶899the video in a performative context and explained that it was made

¶900 57 in memory of a family member lost to gun violence. This helped

¶901mitigate whatever harm the video may have caused.

¶902 The majority opinion’s harmless error analysis is also

¶903incomplete because it fails to account for the fact that Baker elected

¶904to testify at his trial, and the jury did not find him credible. See

¶905United States v. Phyfier, 842 F. Appx. 333, 338 (11th Cir. 2021) (per

¶906curiam) (explaining that, in the harmless error context, “it is well

¶907established that when a defendant testifies in his own defense, the

¶908jury may disbelieve his testimony, conclude that the opposite of his

¶909testimony is true, and consider it as substantive evidence of his

¶910guilt”). See also Fitts v. State, 312 Ga. 134, 144 n.9 (859 SE2d 79)

¶911(2021) (“If disbelieved by the jury, [defendant’s] testimony denying

¶912her involvement in the crime could have served as direct evidence of

¶913the opposite proposition.”). For example, the jury was entitled to find

¶914that, contrary to his trial testimony, Baker was not in the van at the

¶915time of the shooting, but instead remained with the man in the

¶916camouflage cap, and that Baker did have a gun that night and was

¶917involved in the shooting. Cf. Majority Opinion at 16.

¶918 58  Thus, even if Rule 403 did merit exclusion, it is “highly

¶919probable” that the video’s admission did not contribute to the

¶920verdict. See Ash v. State, 312 Ga. 771, 782-783 (2) (865 SE2d 150)

¶921(2021) (holding that, if the prosecutor improperly used a prior

¶922conviction to show defendant’s propensity for violence, its admission

¶923was harmless when “neither the prosecutor nor [defense] counsel

¶924devoted much attention to this evidence in closing arguments” and

¶925the other evidence against defendant was “strong”). Therefore, I

¶926respectfully dissent.

¶927 I am authorized to state that Chief Justice Boggs joins in this

¶928dissent.

¶929 59