CourtListener 10680369

Gesamter Gesetzestext

318 Ga. 566
FINAL COPY

S23G0448. MCKINNEY V. THE STATE.

PETERSON, Presiding Justice.

We granted defendant Jerrion McKinney’s petition for

certiorari to consider the proper construction of an evidence rule,

OCGA § 24-4-418 (“Rule 418”), that in prosecutions under the

Georgia Street Gang Terrorism and Prevention Act (OCGA § 16-15-

1 et seq., hereinafter “Georgia’s Gang Act”) permits the admission of

evidence that the defendant has engaged in any one of a host of other

acts listed in Georgia’s Gang Act. The Court of Appeals in this case

concluded that Rule 418 does not require that there be some “nexus”

between the other act “and an intent to further gang activity.” State

v. McKinney, 366 Ga. App. 251, 257-258 (2) (881 SE2d 699) (2022).

But the Court of Appeals also concluded that evidence otherwise

admissible under Rule 418 remains subject to analysis under OCGA

§ 24-4-403 (“Rule 403”). See McKinney, 366 Ga. App. at 258-259 (3).

We agree on both points and affirm the judgment of the Court of
Appeals.

In August 2021, a Fulton County grand jury issued a 37-count

indictment against McKinney and Julian Conley. The indictment

charged McKinney with 12 counts of violating Georgia’s Gang Act,

two counts of aggravated assault, and one count each of possession

of a firearm during the commission of a felony and possession of a

firearm by a convicted felon. The charges stem from the State’s

allegations that on July 4, 2020, McKinney and Conley participated

in an “armed takeover” of an area of Atlanta, placing barricades in

the roadway and prohibiting others from passing. The charges

against Conley, who is not a party to this appeal, include murder for

the shooting death of eight-year-old Secoriea Turner.

At issue in this pre-trial appeal is the State’s attempt to

introduce evidence of other acts by McKinney through Rule 418.

Rule 418 (a) provides:

In a criminal proceeding in which the accused is
accused of conducting or participating in criminal gang
activity in violation of Code Section 16-15-4, evidence of
the accused’s commission of criminal gang activity, as
such term is defined in Code Section 16-15-3, shall be

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admissible and may be considered for its bearing on any
matter to which it is relevant.

The rule also contains a notice requirement. See OCGA § 24-4-418

(b). And it provides that the rule “shall not be the exclusive means

to admit or consider evidence described” therein. OCGA § 24-4-418

(c). OCGA § 16-15-3, referenced in Rule 418, is the definition section

for Georgia’s Gang Act. OCGA § 16-15-3 enumerates certain offenses

the commission of which constitutes “criminal gang activity.” See

OCGA § 16-15-3 (1), (2). OCGA § 16-15-4, also referenced in Rule

418, makes various forms of criminal gang activity additional

separate crimes; for instance, subsection (a) provides that “[i]t shall

be unlawful for any person employed by or associated with a

criminal street gang to conduct or participate in criminal gang

activity through the commission of any offense enumerated in

paragraph (1) of Code Section 16-15-3.”

In McKinney’s case, the trial court considered the State’s

request to introduce evidence of the following three other acts under

Rule 418: (1) a May 2015 incident in which McKinney took a stolen

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firearm to his school and pointed it at a classmate’s head; (2) a

February 2016 incident in which McKinney shot himself in the foot

with a firearm and then hid the gun in nearby bushes, claiming he

had been the victim of a drive-by shooting; and (3) an April 2017

incident in which McKinney robbed two victims at gunpoint. The

State argued to the trial court essentially that evidence of the

commission of any offense included in the definition of “criminal

gang activity” in OCGA § 16-15-3 would be admissible under Rule

418, irrespective of whether there was evidence that the defendant

was associated with a particular gang at the time of the offense or

that the offense was committed in furtherance of a gang’s interests.

Based on the State’s proffer, the trial court entered an order

concluding that evidence of the April 2017 robbery incident was

admissible but evidence of the May 2015 school incident and the

February 2016 shooting incident was not.1 In its order, the trial

1 The State also sought admission of the evidence under OCGA § 16-15-

9. But the State has conceded that OCGA § 16-15-9 requires proof of gang
association at the time of the other act for the act to be admissible under that
rule and has not challenged on appeal the trial court’s conclusion that the two
acts at issue here are not admissible under OCGA § 16-15-9.
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court relied upon this Court’s decision in Rodriguez v. State, 284 Ga.

803 (671 SE2d 497) (2009), in which we construed a prior version of

OCGA § 16-15-4 (a) as requiring a nexus between the defendant’s

act and an intent to further a gang’s purposes. Reading Rodriguez

to establish “the necessity of reading the various sections of

[Georgia’s Gang Act] in conjunction with one another,” the trial

court concluded that “in reading OCGA § 24-4-418 and its reference

to OCGA §§ 16-15-3 and 16-15-4 and those statutes in conjunction

with one another that a nexus between the prior act and an intent

to further gang activity must be established for the evidence to be

admissible under OCGA § 24-4-418 in this case.”

The State appealed, arguing that the trial court abused its

discretion by excluding some evidence of McKinney’s prior gang

activity, because the plain language of Rule 418 does not require the

State to show a connection between a gang and the other act. A panel

of the Court of Appeals reversed in part and remanded in part. See

McKinney, 366 Ga. App. at 251. The Court of Appeals agreed with

the State that the evidence of criminal gang activity admissible

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under Rule 418 “is that activity defined in OCGA § 16-15-3.” Id. at

257 (2). The Court of Appeals wrote that “[o]n its face, the statute

does not require a nexus between a defendant’s commission of the

predicate act and an intent to further the gang activity[.]” Id. at 257-

258 (2). The Court of Appeals concluded that Rodriguez had “no

bearing on the issue” presented in this case, because Rodriguez “was

interpreting only the definition of the crime found in OCGA § 16-15-

4, not the language found in OCGA § 16-15-3 or Rule 418[,]” and

“Rule 418 contains no such language similar to that found in OCGA

§ 16-15-4[.]” McKinney, 366 Ga. App. at 258 (2). The court concluded:

Given the plain language of Rule 418, the trial court
must find, prior to admitting the proffered evidence, that
the conduct alleged, if proven, would constitute a violation
of one of the listed statutes in OCGA § 16-15-3 or the
commission of one of the crimes specified in OCGA § 16-
15-3. It does not require the trial court to find any nexus
between the alleged conduct and an intent to further gang
activity.

Id. The Court of Appeals therefore determined that the trial court

erred in excluding the other acts on the basis that they did not fall

within Rule 418, although the Court of Appeals remanded for the

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trial court to consider whether the acts should be excluded under

Rule 403. See id. at 258-259 (2)-(3). We granted McKinney’s petition

for certiorari.

McKinney appears to argue in his brief to this Court that

admissibility of evidence under Rule 418 requires a showing that the

other act at issue was committed to further the interests of a gang.2

We disagree.

“When we consider the meaning of a statute, we must presume

that the General Assembly meant what it said and said what it

meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337)

(2013) (citation and punctuation omitted). “To that end, we must

afford the statutory text its plain and ordinary meaning, we must

view the statutory text in the context in which it appears, and we

must read the statutory text in its most natural and reasonable way,

as an ordinary speaker of the English language would.” Id. at 172-

2 At oral argument, McKinney acknowledged that Rule 418 did not
explicitly contain a nexus requirement, but suggested that it was a distinction
without a difference because regardless of what Rule 418 required, the
evidence would be inadmissible under Rule 403 without such a nexus.
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173 (1) (a) (citations and punctuation omitted).

Starting with the text, Rule 418 by itself contains no

requirement of a connection between the other act and gang

membership or interests in order for the act to be admissible.

Rather, it provides that in gang prosecutions, “evidence of the

accused’s commission of criminal gang activity, as such term is

defined in Code Section 16-15-3, shall be admissible and may be

considered for its bearing on any matter to which it is relevant.”

OCGA § 24-4-418 (a). OCGA § 16-15-3 defines “criminal gang

activity” as a list of specific offenses, stating simply that “‘[c]riminal

gang activity’ means the commission, attempted commission,

conspiracy to commit, or the solicitation, coercion, or intimidation of

another person to commit” those listed offenses. OCGA § 16-15-3 (1);

see also OCGA § 16-15-3 (2). This definition contains no reference to

a connection between the offenses and gang association or

furthering the interest of a gang.

McKinney argues that the trial court correctly concluded that,

consistent with Rodriguez, Rule 418 must be construed in the light

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of both OCGA § 16-15-3 and OCGA § 16-15-4. But Rule 418 turns on

the definition of “criminal gang activity” found in OCGA § 16-15-3.

Rodriguez, on the other hand, turned on nexus-creating language in

OCGA § 16-15-4 that was at issue there but is not present in OCGA

§ 16-15-3 or Rule 418. See Rodriguez, 284 Ga. at 805-807 (1).

Rodriguez considered OCGA § 16-15-4 (a), which at the time made

it “unlawful for any person employed by or associated with a

criminal street gang to conduct or participate in criminal gang

activity through the commission of any offense enumerated in

paragraph (1) of Code Section 16-15-3.” The Court noted that “OCGA

§ 16-15-4 must be read in conjunction with the definitions of

‘criminal gang activity’ and ‘criminal street gang’ in OCGA § 16-15-

3.” Rodriguez, 284 Ga. at 805 (1). But of course that was true, given

that OCGA § 16-15-4 (a) used at least one term, “criminal street

gang,” that was defined in OCGA § 16-15-3.

That does not necessarily mean that the converse is true, i.e.,

that OCGA § 16-15-3 must be read in the light of OCGA § 16-15-4.

Rodriguez reasoned that “the use of the verbs ‘conduct’ and

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‘participate’ confirm that the middle portion of OCGA § 16-15-4 (a)

is referring to the ‘activity’ of the group” and that in the context of

the statute “both of these words imply the presence of others who

are managed, controlled, led or guided in the ‘criminal street gang

activity’ by the defendant or who take part in or share in that

activity with the defendant.” 284 Ga. at 806 (1). And the Court said

that requiring no showing of a nexus with gang interests in order to

secure a conviction under OCGA § 16-15-4 (a) would render

“meaningless or redundant” the phrase in the then-existing

language of OCGA § 16-15-4 (a), “to conduct or participate in

criminal street gang activity[.]” 284 Ga. at 805-806 (1). Limiting the

value of Rodriguez for the case before us now, these words and

phrases in the version of OCGA § 16-15-4 (a) in effect at the time the

Rodriguez Court construed them do not appear in any form in the

OCGA § 16-15-3 definition referenced by Rule 418.3

3 We also note that the phrase “to conduct or participate in criminal

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Moreover, Rule 418 by its terms applies to all criminal

prosecutions under OCGA § 16-15-4, not just those brought under

OCGA § 16-15-4 (a). In addition to OCGA § 16-15-4 (a), OCGA § 16-

15-4 contains nine other subsections creating distinct crimes, each

defined by unique language. Therefore, the meaning of Rule 418

cannot turn on particular language in OCGA § 16-15-4 (a) — either

the version currently in effect, or the version that we construed in

Rodriguez.

McKinney’s only other argument is that construing Rule 418

as not requiring a nexus with gang membership or interests would

lead to an absurd result in that it would afford prosecutors virtually

unchecked power to obtain admission of other criminal acts in gang

prosecutions. See Rodriguez, 284 Ga. at 805 (1) (“The various

provisions of a statute should be viewed in harmony and in a manner

or participate in criminal gang activity[.]” See Ga. L. 2010, pp. 230, 231, § 3.
The Rodriguez Court had found this former text of OCGA § 16-15-4 significant,
noting that the phrase “criminal street gang activity” in OCGA § 16-15-4 (a),
was “not identical to the phrase ‘criminal gang activity’ as defined in OCGA §
16-15-3 (1).” 284 Ga. at 806 (1). No question is presented in this case regarding
the continuing validity of Rodriguez following this amendment, and nothing in
this opinion should be viewed as expressing any opinion on the issue.

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which will not produce an unreasonable or absurd result.” (citation

and punctuation omitted)). “But the fact that an application of clear

statutory text produces results that [a litigant or others] may think

are unfair or unreasonable does not render the statute nonsensical

or ‘absurd.’” Domingue v. Ford Motor Co., 314 Ga. 59, 67 (2) (c) n.7

(875 SE2d 720) (2022). And although “this Court may construe

statutes to avoid absurd results, . . . we do not have the authority to

rewrite statutes,” Riley v. State, 305 Ga. 163, 168 (3) (824 SE2d 249)

(2019); so when the text is plain, we must follow it. And as we have

explained, the plain text of Rule 418 cannot be read to require the

nexus for which McKinney argues.

Nevertheless, the breadth of Rule 418 is cabined by other rules

of evidence. The Court of Appeals remanded the case for the trial

court to consider whether evidence of the May 2015 school incident

and the February 2016 shooting incident should be excluded under

Rule 403. See McKinney, 366 Ga. App. at 258-259 (3). And the State

does not dispute that Rule 403 generally applies to evidence

otherwise admissible under Rule 418.

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Indeed, we have made abundantly clear that “the Rule 403

exclusionary rule generally applies to all evidence even when

another provision of the Evidence Code provides that certain

evidence ‘shall’ be admissible.” Wilson v. State, 312 Ga. 174, 189 (2)

(860 SE2d 485) (2021) (citation and punctuation omitted). Such an

approach “eliminates due process concerns posed by [other-acts

evidence] that might be so prejudicial that the admission of that

evidence would violate the defendant’s fundamental right to a fair

trial.” Id. at 189-190 (2). Under Rule 403, “[r]elevant evidence may

be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the

jury or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” “[O]f course, the trial court

must address whether . . . evidence is relevant under OCGA § 24-4-

401 before determining whether its probative value (of course,

irrelevant evidence can have no probative value) is substantially

outweighed by the danger of unfair prejudice under Rule 403.” State

v. Randall, 318 Ga. 79, 82 (2) n.3 (897 SE2d 444) (2024); see also

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OCGA § 24-4-401 (defining “relevant evidence” as “evidence having

any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

than it would be without the evidence”); OCGA § 24-4-402 (“Rule

402”) (“Evidence which is not relevant shall not be admissible.”).

And Rule 418 itself provides that evidence otherwise admissible

under that rule may be considered only “for its bearing on any

matter to which it is relevant.” This case does not call us to decide

in the first instance whether particular Rule 418 evidence is

properly admitted in the light of Rules 402 and 403. But construing

Rule 418 as not itself requiring proof that the other act furthered

gang interests does not leave the State with the unfettered ability to

admit other acts in prosecutions under Georgia’s Gang Act, given

the applicability of other Evidence Code provisions.

For these reasons, the Court of Appeals correctly concluded

that Rule 418 “does not require the trial court to find any nexus

between the alleged conduct and an intent to further gang activity.”

McKinney, 366 Ga. App. at 258 (2). We therefore affirm the

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judgment of the Court of Appeals and remand the case to that court

with instructions that it remand the case to the trial court to

consider whether the other acts at issue should be excluded under

Rule 403 or any related rules.

Judgment affirmed. All the Justices concur.

Decided March 5, 2024.

Certiorari to the Court of Appeals of Georgia — 366 Ga. App.

251.

Michael S. Katz, for appellant.

Fani T. Willis, District Attorney, Michael S. Carlson, Adam R.

Abbate, Kevin C. Armstrong, Christopher D. Sperry, Jayna Edwards,

Bruce P. Dutcher, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Paula

K. Smith, Senior Assistant Attorney General, Elizabeth

Rosenwasser, Assistant Attorney General, for appellee.

John S. Melvin, Christopher M. DeNeve, Jeffrey T. Wennar,

amici curiae.

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.

In the Supreme Court of Georgia

Decided: March 5, 2024

S23G0448. MCKINNEY v. THE STATE.