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315 Ga. 279
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S22A1040. CAVISTON v. THE STATE.

ELLINGTON, Justice.

A Richmond County jury found Robert Caviston guilty of

malice murder and arson in the first degree in connection with the

death of his 92-year-old mother, Agnes Caviston.1 Caviston contends

the trial court erred in denying his motion for a new trial on the

general grounds. He also argues that the trial court erred in

admitting harmful evidence of a fantasy novel that he had written,

1 On February 10, 2015, a Richmond County grand jury indicted
Caviston for malice murder (Count 1), felony murder predicated on aggravated
assault (Count 2), and arson in the first degree (Count 3). At a trial that began
on January 8, 2018, the jury found Caviston guilty on all counts. The trial court
sentenced Caviston to life in prison without parole for malice murder and to a
consecutive 20-year prison term for arson. The trial court merged the felony
murder count with the malice murder count for purposes of sentencing,
although that count was actually vacated by operation of law. See Malcolm v.
State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). Caviston timely filed a
motion for a new trial on February 2, 2018, and amended it on October 19,
2021. After a hearing, a successor judge denied the motion on January 25,
2022. Caviston timely filed a notice of appeal. His appeal was docketed to the
August 2022 term of this Court and submitted for a decision on the briefs.
titled “The Philosophy of Murder,” thus requiring a new trial.

Because Caviston has failed to show reversible error, we affirm.

The evidence submitted at trial shows the following.2 On

November 15, 2014, a witness saw a naked man sitting in the middle

of the street in front of 2717 Wicklow Drive in Augusta. She noticed

that the man’s house was on fire and asked him whether he had

called 911. The man, later identified as Caviston, told her that he

had just killed his mother and would not call 911. The witness

immediately called 911.

A sheriff’s deputy responding to the 911 call found Caviston

lying naked on the ground in his neighbor’s yard, as if he were

“sunbathing.” Caviston’s neighbor testified that he watched the

2 In this case, Caviston has raised claims of non-constitutional error only;

consequently, we review the evidence de novo instead of in the light most
favorable to the jury’s verdicts. “The test for determining nonconstitutional
harmless error is whether it is highly probable that the error did not contribute
to the verdict.” (Citation and punctuation omitted.) Kirby v. State, 304 Ga. 472,
478 (3) (c) (819 SE2d 468) (2018). It is the State’s burden to show harmlessness.
Bozzie v. State, 302 Ga. 704, 708 (2) (a) (808 SE2d 671) (2017). In deciding
whether the State has met its burden, “we weigh the evidence as we would
expect reasonable jurors to have done so, as opposed to assuming that they
took the most pro-guilt possible view of every bit of evidence in the case.”
(Citation omitted.) Boothe v. State, 293 Ga. 285, 289 (2) (b) (745 SE2d 594)
(2013).
2
deputy approach Caviston and heard the deputy ask if anyone was

still in his house, to which Caviston responded, “Yeah, my mom, I

just f-ing bashed her head in.” Caviston told the deputy that he

might have killed his mother and set the house on fire. The deputy

handcuffed Caviston, covered him with a blanket, and took him to a

patrol car. As the deputy put Caviston in the patrol car, another

deputy heard Caviston say: “How can you not feel anything after you

kill your mother? I just smashed her skull in.” Caviston also told a

responding paramedic that his mother was in the burning house and

that he had just killed her. He added that he was tired of taking care

of his mother and that, “I’m an animal, everyone’s an animal, my

mother is an animal — well, she was,” and then he laughed. On the

way to the Richmond County Jail, Caviston told a deputy that

“everybody wanted [his mother] dead” and “they all got what they

wanted.” When he arrived at the jail, Caviston said: “[I]t looks like

maximum security,” and then commented: “I must have killed my

mother.”

While the deputies took Caviston into custody, first responders

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broke through the locked front door of the burning house.

Firefighters encountered one fire burning in the front doorway and

another in the living room. After putting the fires out, a firefighter

found Agnes Caviston’s burned body in the living room beneath a

pile of charred clothing, books, and papers. A firefighter testified

that the victim’s head had been split open and that brain matter was

visible.

An arson investigator testified that fires were set in two

separate places in the house. Once ignited, the fires burned quickly;

they did not smolder. The house was mostly empty, and the “only

things in the house that were burned were piled around this victim;

papers, books, all kind of stuff just piled around the victim.” Many

of the books were books about philosophy. The investigator noted

that a Bible and some flowers had been placed next to the victim.

There was no power at the property, so the investigator ruled out an

electrical malfunction as the cause of the fire. He also ruled out the

possibility that the fire originated in the fireplace because only heat

and smoke (as opposed to fire) damage was visible in the one room

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with a fireplace. The investigator saw nothing that would have

sparked a fire. Based on the evidence, the investigator concluded

that the fires were caused “by human intervention” and were

intentionally set.

An expert in blood-splatter analysis testified that he collected

a jacket from the dining room that appeared to have blood on it. He

described the blood on the jacket as “medium velocity” bloodstains,

meaning the “blood was moving through air and made contact with

something.” In his expert opinion, medium velocity bloodstains on

the jacket would be consistent with blood splatter resulting from

someone bludgeoning the victim’s head.

An investigator found a broken IV stand in the house. It had

blood and human hair on it. He took swabs from the IV stand, which

were sent to the GBI for testing. The tests confirmed that the blood

on the IV stand was the victim’s. The blood pattern on the IV stand

was consistent with it being used as a bludgeon. The blood splatter

pattern on the floor around the IV stand was also consistent with it

being used to repeatedly strike the victim’s head.

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The forensic pathologist who conducted the autopsy testified

that the victim had “extensive and severe head injuries.” He

estimated at least seven or eight blows to the victim’s head and

opined that it “would take a very large amount of force to cause this

injury, as evidenced by the amount of fracturing of the skull and

then the presence of the stretch-tear lacerations on the face.” The

pathologist also noted that the victim had neck injuries consistent

with both blunt force trauma and strangulation. The victim also had

abrasions on her shoulder, a fractured left upper arm, fractures to

four upper ribs, and a fractured sternum. All of those injuries

appeared to be recent and likely occurred at the same time as the

head trauma. There was no evidence of smoke inhalation. Based on

the autopsy, the pathologist determined the victim’s cause of death

was traumatic head injury, and the manner of death was homicide.

Caviston’s daughter testified that the victim was 92 years old,

bed-bound, had a feeding tube, and required around-the-clock care.

Caviston was the victim’s caretaker. On the day of the fire, Caviston

called his daughter and said that he had to move out of the home by

6
6:00 that evening, because he was being evicted. The daughter

testified that Caviston wanted to move to Hollywood, start a singing

career, and meet the actress, Kristen Stewart. A friend of Caviston

testified that Caviston was “completely over that situation” of taking

care of his mother and “wanted his freedom back.” He expressed a

desire to go to California.

Caviston testified at trial that he killed his mother in a “freak

accident.” He claimed that he heard his mother scream and saw a

“little smoke” by her hand. As he ran to her, he tripped on something

and went “flying through the air,” landing on top of her. Rubbing

alcohol “squirted” out of the bottle he was holding onto a burning

ember and started a fire. He looked up and saw that the base of the

IV stand had impaled his mother’s head, breaking her skull open.

He started screaming and tried to get up, but he fell on his mother

over and over again, with the IV stand still under his arm. Caviston

also testified that, when he told people that he had killed his mother,

he did not mean that he had murdered her. He explained:

I did bash her head in and that’s what I told

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everybody. . . . I didn’t mean I murdered my mom. You
know if I had only been able to think properly and maybe
said the words, by accident, I wouldn’t be here today. But
the traumatized mind doesn’t think like that, and the
images, the images, the image of my mom dead just
overwhelmed me.

On cross-examination, the State asked Caviston if he had

written a book titled “The Philosophy of Murder.” Caviston

responded that he had and that it was one of three books he had

published. He said the novel had “a haunted mansion and a ghost in

it” and that it was “a love story.” He explained that the serial killer

subplot was just a device to put the protagonists “under intense

pressure to see where they could go in a stressful situation.” When

asked if he was romanticizing murder, Caviston said “no.” When

asked if he was good at telling stories, Caviston responded: “Not as

good as you, but yes, I am.” The prosecutor asked no further

questions about the novel.

1. Caviston contends that the trial court erred in denying his

motion for a new trial on the general grounds pursuant to OCGA §§

5-5-20 and 5-5-21 because “irrelevant and highly prejudicial

8
evidence of a book that Caviston had written ten years prior under

the pseudonym Bob Johnson, titled The Philosophy of Murder[, was

admitted at trial].” He argues that the admission of this evidence

was prejudicial and improperly “biased the jury against [him] and

tainted all the State’s evidence in the trial.” Moreover, he contends

that the trial court failed to exercise its discretion by weighing the

evidence and considering the credibility of the witnesses and,

instead, reviewed his general grounds claim under the

constitutional sufficiency standard of Jackson v. Virginia, 443 U.S.

307 (99 SCt 2781, 61 LE2d 560) (1979). For the reasons that follow,

this claim of error is without merit.

“A trial court reviewing a motion for new trial based on [the

general] grounds has a duty to exercise its discretion and weigh the

evidence and consider the credibility of the witnesses.” Choisnet v.

State, 292 Ga. 860, 861 (742 SE2d 476) (2013).

Even when the evidence is legally sufficient to
sustain a conviction, a trial judge may grant a new trial if
the verdict of the jury is “contrary to . . . the principles of
justice and equity,” OCGA § 5-5-20, or if the verdict is
“decidedly and strongly against the weight of the

9
evidence.” OCGA § 5-5-21. When properly raised in a
timely motion, these grounds for a new trial — commonly
known as the “general grounds” — require the trial judge
to exercise a broad discretion to sit as a “thirteenth juror.”

(Citation and punctuation omitted.) White v. State, 293 Ga. 523, 524

(2) (753 SE2d 115) (2013). If the trial court performs this duty, then

a thirteenth juror argument “is not properly addressed to this Court

as such a decision is one that is solely within the discretion of the

trial court.” (Citation omitted.) Smith v. State, 300 Ga. 532, 534 (1)

(796 SE2d 671) (2017). “[W]here, as in this case, the judge who hears

the motion for a new trial is not the same judge as the one who

presided over the original trial, the discretion of the successor judge

is narrower in scope.” State v. Harris, 292 Ga. 92, 95 (734 SE2d 357)

(2012). However, “after a thorough review of the case, even a

successor judge may exercise a significant discretion to grant a new

trial on the general grounds.” (Citation and punctuation omitted.)

Hyden v. State, 308 Ga. 218, 226 (3) (d) (839 SE2d 506) (2020).

Finally, even though the record shows that the trial court did not

specifically address Caviston’s general grounds argument in his

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order denying the motion for a new trial,

it is well established that this Court must presume that
the trial judge knew the rule as to the necessity of
exercising his discretion, and that he did exercise it. [This
Court] cannot assume, in the absence of positive evidence
to the contrary, that the judge knowingly declined to
exercise his discretion. Thus, where a trial judge ruling
on a new trial motion enters an order that, without more,
recites that the new trial is refused or denied, this will be
taken to mean that the judge has in the exercise of his
discretion approved the verdict.

(Citations and punctuation omitted.) Butts v. State, 297 Ga. 766, 772

(3) (778 SE2d 205) (2015).

The successor judge who heard the motion for a new trial

summarily denied Caviston’s motion for a new trial based upon

“consideration of all the pleadings, briefs, arguments of Counsel and

evidence presented[.]” There is no indication in the court’s order or

in the transcript of the hearing on Caviston’s motion that the judge

failed to exercise his discretion as required or applied an

inappropriate standard of review. Under these circumstances,

Caviston has not shown that the trial court erred in denying his

motion on the general grounds alleged. See Butts, 297 Ga. at 772 (3).

11
2. Caviston contends that the trial court abused its discretion

in admitting evidence pursuant to OCGA § 24-4-404 (b) that he had

written a book in 2005, titled “The Philosophy of Murder,” about a

serial killer stalking actresses in Hollywood. He argues that the

evidence was unduly prejudicial and that his conviction must be set

aside. For the following reasons, we disagree.

The record shows that, prior to trial, the prosecutor notified the

trial court and defense counsel that the State intended to introduce

evidence of the novel at trial. Caviston objected, arguing that the

novel was not relevant to any material issue and would serve only

to inflame the jury. After the prosecutor argued theories under

which the book and its contents might be admissible, the trial court

reserved ruling and directed the parties to approach the bench

before attempting to introduce any evidence concerning the book at

trial.

During trial, after Caviston testified that his mother’s death

was an accident, the State cross-examined him on whether he had

written any books between 2004 and 2005, and defense counsel

12
objected. The trial court then conducted a hearing outside the

presence of the jury. During the hearing, the prosecution argued

that evidence of the novel was relevant to Caviston’s mental state.

Caviston responded that the book was a work of fiction, was

authored nine years prior to Agnes Caviston’s death, and was

irrelevant to any issue at trial. Caviston also argued that the title

was “so prejudicial that it may sway jurors’ minds just because he

wrote a book called ‘The Philosophy of Murder,’” noting that there

had been no testimony opening the door to any cross-examination

concerning the book, such as whether Caviston had worked as a

writer. The Court ruled that the prosecutor could ask Caviston about

the book.

After the jury returned to the courtroom, and over Caviston’s

objection, the prosecutor asked Caviston whether he had written a

book entitled “The Philosophy of Murder” in 2005, and he answered

“yes.” Caviston explained that it was a romance novel, and that the

serial killer portion of the plot was a device to put pressure on the

protagonists, “to see where they could go in a stressful situation.”

13
After trial, the trial court entered a written order memorializing its

ruling on this evidentiary issue. The trial court found that Caviston

had placed his character in issue by testifying; that he testified to

the affirmative defense of accident on direct examination; that the

State had the burden of disproving beyond a reasonable doubt the

affirmative defense of accident; that Caviston’s having written a

book called “The Philosophy of Murder” was relevant to the issue of

intent; and that the probative value of allowing the jury to hear that

Caviston wrote a book called “The Philosophy of Murder”

outweighed any prejudicial effect.

Under OCGA § 24-4-401, “relevant evidence” is 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.” Under OCGA § 24-

4-402, “[a]ll relevant evidence shall be admissible, except as limited

by constitutional requirements or as otherwise provided by law or

other rules. . . . Evidence which is not relevant shall not be

admissible.” OCGA § 24-4-403 (“Rule 403”) provides that “[r]elevant

14
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.”

This Court has held that “[t]he application of the Rule 403 test

is a matter committed principally to the discretion of the trial

courts,” and “the exclusion of evidence under Rule 403 is an

extraordinary remedy which should be used only sparingly. The

major function of Rule 403 is to exclude matter[s] of scant or

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

its prejudicial effect.” Flowers v. State, 307 Ga. 618, 622-623 (2) (837

SE2d 824) (2020). This Court reviews a trial court’s ruling on an

evidentiary issue for abuse of discretion. Middlebrooks v. State, 310

Ga. 748, 750 (2) (a) (854 SE2d 503) (2021).

Even if a trial court abuses its discretion in admitting certain

evidence, such non-constitutional error is deemed harmless and does

not require reversal if it is highly probable that the error did not

contribute to the verdict. See Heard v. State, 309 Ga. 76, 90 (3) (g)

15
(844 SE2d 791) (2020). To determine if an error was harmless, this

Court reviews the record de novo and weighs the evidence as it

would expect reasonable jurors to have done as opposed to viewing

the evidence in the light most favorable to the jury’s verdict. Id. This

Court has

held that evidence that was (or was assumed to have
been) improperly admitted . . . was harmless in cases
where the properly admitted evidence proving that the
appellant committed the charged crimes was so strong
that the prejudicial effect of the [improperly admitted]
evidence had no significant influence on the guilty
verdicts. . . . The improperly admitted . . . evidence in
many such cases was not especially prejudicial, for
example because the [improperly admitted evidence] was
relatively benign[.]

Id. at 91 (3) (g).

Assuming, without deciding, that the trial court abused its

discretion in admitting evidence about Caviston’s novel, it is highly

probable that the evidence did not contribute to the verdicts given

Caviston’s explanation of the plot and the very short time devoted

to this line of questioning during cross-examination. The State

asked a total of three questions related to the novel, and the only

16
evidence placed before the jury was that Caviston wrote “The

Philosophy of Murder,” a romance novel with a serial-killer subplot

that was published in 2005. The novel itself was not introduced. In

contrast, the State presented an overwhelming amount of evidence

unrelated to the novel on the issue of Caviston’s guilt. For example,

18 witnesses testified for the State, many of whom recounted

Caviston’s admissions that he killed his mother. Others gave expert

testimony explaining either how the fire was intentionally set or

how repeated and intense blunt force inconsistent with an

accidental fall was necessary to cause the victim’s severe injuries.

Any undue prejudice from admitting evidence about the novel was

offset by the overwhelming evidence of Caviston’s guilt and the

improbability of his accident defense. Consequently, it is highly

probable that the evidence did not contribute to the verdicts. See

Heard, 309 Ga. at 90-91 (3) (g).

Judgment affirmed. All the Justices concur.

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Decided December 20, 2022.

Murder. Richmond Superior Court. Before Judge Overstreet,

Senior Judge.

Davis Hewitt Law Firm, William D. Hewitt, for appellant.

Jared T. Williams, District Attorney, Joshua B. Smith,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Emily R. Polk, Assistant

Attorney General, for appellee.

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: December 20, 2022

S22A1040. CAVISTON v. THE STATE.

ELLINGTON, Justice.

A Richmond County jury found Robert Caviston guilty of

malice murder and arson in the first degree in connection with the

death of his 92-year-old mother, Agnes Caviston.1 Caviston contends

the trial court erred in denying his motion for a new trial on the

general grounds. He also argues that the trial court erred in

admitting harmful evidence of a fantasy novel that he had written,

Because Caviston has failed to show reversible error, we affirm.

The evidence submitted at trial shows the following. 2 On

November 15, 2014, a witness saw a naked man sitting in the middle

of the street in front of 2717 Wicklow Drive in Augusta. She noticed

that the man’s house was on fire and asked him whether he had

called 911. The man, later identified as Caviston, told her that he

had just killed his mother and would not call 911. The witness

immediately called 911.

A sheriff’s deputy responding to the 911 call found Caviston

lying naked on the ground in his neighbor’s yard, as if he were

“sunbathing.” Caviston’s neighbor testified that he watched the

2 In this case, Caviston has raised claims of non-constitutional error only;
consequently, we review the evidence de novo instead of in the light most
favorable to the jury’s verdicts. “The test for determining nonconstitutional
harmless error is whether it is highly probable that the error did not contribute
to the verdict.” (Citation and punctuation omitted.) Kirby v. State, 304 Ga. 472,
478 (819 SE2d 468) (2018). It is the State’s burden to show harmlessness.
Bozzie v. State, 302 Ga. 704, 708 (808 SE2d 671) (2017). In deciding whether
the State has met its burden, “we weigh the evidence as we would expect
reasonable jurors to have done so, as opposed to assuming that they took the
most pro-guilt possible view of every bit of evidence in the case.” (Citations
omitted.) Boothe v. State, 293 Ga. 285, 289 (745 SE2d 594) (2013).
2
deputy approach Caviston and heard the deputy ask if anyone was