CourtListener 10680466

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official text of the opinion.

In the Supreme Court of Georgia

Decided: May 6, 2025

S25A0131. JOHNSON v. THE STATE.

PINSON, Justice.

Alex Lee Johnson was convicted of felony murder and other

crimes related to the shooting death of Patricia Sabb. 1 On appeal, he

1 Johnson was indicted by a Chatham County grand jury on October 17,

2018. He was charged with malice murder, three counts of felony murder, ten
counts of aggravated assault, theft by receiving, ten counts of possession of a
firearm in the commission of a felony, armed robbery, hijacking a motor
vehicle, and two counts of possession of a firearm by a first offender
probationer. After trial, the jury found Johnson guilty of felony murder,
hijacking a vehicle, armed robbery, five counts of aggravated assault, theft by
receiving, and ten counts of possession of a firearm. The jury acquitted Johnson
of malice murder, and the trial court granted a mistrial as to several other
counts where the jury was unable to reach a verdict. The trial court sentenced
Johnson to life in prison with the possibility of parole for felony murder. The
trial court also sentenced Johnson to 10 years after the life sentence for several
counts and a combined 5 years of probation following the 10-year sentence for
several counts. Johnson filed a motion for new trial that raised, among other
grounds, a merger issue. The trial court granted the motion as to the merger
issue and entered an amended sentencing order vacating the sentence for one
of the possession of a firearm counts. It denied the motion as to the other
grounds raised. Johnson then timely filed this appeal, which was docketed to
this Court’s term beginning in December 2024 and submitted for a decision on
the briefs.
contends that the trial court abused its discretion in admitting

evidence of his gang membership and that the trial court erred by

refusing to instruct the jury on two lesser-included offenses. But the

trial court had the discretion to admit the gang evidence on the basis

that it was relevant to motive: evidence that Johnson was part of a

gang with a “code” that required retaliatory violence under the

circumstances made it more likely that he committed the crimes.

And any danger of unfair prejudice did not substantially outweigh

the probative value of this evidence. As for the claims of

instructional error, even assuming error, Johnson was not

prejudiced by the failure to instruct the jury about the lesser-

included offenses. It was highly likely that the jury still would have

found Johnson guilty of the greater offenses even if it had heard

those instructions, because the only difference between the greater

and lesser offenses was that the greater offenses included the

presence and use of a firearm, and Johnson admitted to having a

gun and using it to threaten the hijacking victim. So Johnson’s

convictions are affirmed.

2
1. The evidence at trial showed the following. On the night of

July 23, 2018, Sabb was shot twice as she stood in the kitchen of her

home in Savannah. She later died from her wounds. The gunshots

came from a car on the street. Several other people were in the home

at the time and testified to hearing anywhere from six to sixteen

total shots. One of the other people in the home called 911, and police

responded to the scene.

As police investigated the shooting, they came to believe that

Sabb was not the shooters’ target. Instead, they came to suspect that

the target was Sabb’s grandson, Rashamel Edwards. Edwards

visited Sabb’s home often, and he was known to be a member of a

subset of the Crips gang.

Johnson had a dispute with Edwards around the time the

shooting occurred. Johnson was dating Nigeria Collins, with whom

Edwards had a child. Collins testified that Johnson was frustrated

about Edwards being the father of the child. She further testified

that Johnson, like Edwards, was a Crips gang member. Messages

between Collins and Johnson showed that Johnson wanted to harm

3
Edwards, even though Johnson ultimately promised Collins he

would not take any action against him.

But Johnson broke that promise. In the days before the

murder, Johnson and a few others stole a car that Edwards was

driving. Johnson admitted to the hijacking, telling police that he had

a pistol in his pocket and told Edwards “don’t make me whip it out”

so he could steal the car from him. In retaliation for the hijacking,

Edwards put Johnson on a “death clock” — meaning that he would

kill Johnson within 48 hours.

The State’s theory of the case was that, because of the warning,

Johnson and others went to kill Edwards first at Sabb’s home.

Johnson eventually admitted to being in the car from which shots

were fired into Sabb’s home. He also admitted to having a gun in his

hand when the shooting happened, but he maintained that he never

fired it.

At trial, the State sought to introduce evidence of Johnson’s

and Edwards’s gang memberships. The State argued that the

evidence was relevant to show Johnson’s motive: by dating Collins,

4
who had a child with Edwards, Johnson had violated the “G Code”

that gang members were supposed to follow, which caused the

dispute between Johnson and Edwards. That dispute led Johnson to

hijack Edwards’s car, which prompted Edwards’s death-clock

warning, and in turn prompted Johnson’s preemptive attack against

Edwards. The defense objected to this evidence on several grounds

in a motion in limine, which the trial court denied.

2. Johnson claims that the trial court abused its discretion by

admitting evidence that Johnson was a member of a subset of the

Crips gang as relevant to his motive for the crimes; to explain the

“content of certain communications” with Johnson; and to explain

“why Edwards did not cooperate with police regarding the shooting

of his grandmother.” Johnson argues that the evidence was not

relevant under OCGA § 24-4-401 (Rule 401) and that the evidence

should have been excluded under OCGA § 24-4-403 (Rule 403) and

OCGA § 24-4-404 (Rule 404). We consider each of these arguments

in turn.

(a) Evidence is relevant if it has “any tendency to make the

5
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 § 24-4-401. Johnson claims that evidence about

his gang membership was not relevant under Rule 401 and therefore

should not have been admitted. Because counsel objected on this

basis at trial, we review the trial court’s admission of the evidence

for an abuse of discretion. Carter v. State, 302 Ga. 200, 202 (2) (805

SE2d 839) (2017).

We agree with the State and the trial court that evidence of

Johnson’s gang membership was relevant to Johnson’s motive for

the crimes. There was evidence that the dispute between Johnson

and Edwards arose because Johnson was dating Collins. In his

statement to police, Johnson said that “I was going with his baby

momma, that’s one violation of the street code.” Although Johnson

contends that the only motive at issue was “jealousy” over a woman,

this evidence tended to show that dating a fellow gang member’s

“baby momma” was understood as a violation of the “G Code” or

“street code” that the gang followed. Texts between Johnson and

6
Collins further illustrated the bad blood between the two men. And

Johnson eventually acted on his ill will toward Edwards by hijacking

his car. Then Edwards put Johnson on a 48-hour “death clock” — a

period during which Edwards threatened to kill Johnson. And that

death-clock warning led to Johnson’s own attempted preemptive

attack against Edwards, which resulted in Sabb’s death.

Even if these actions were also or even mostly the result of

ordinary jealousy, evidence that they may have been driven by

Johnson’s and Edwards’s gang membership and the attendant

“code” and beliefs tended to make it more likely that Johnson in fact

targeted Edwards and shot into Sabb’s home. So the trial court did

not abuse its discretion in concluding that the evidence was relevant

to prove motive.2

(b) Under Rule 403, evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice.”

OCGA § 24-4-403. We have explained that “[t]he probative value of

2 Because we conclude the evidence was relevant to motive, we need not

address the State’s other relevance arguments. Johnson does not raise any
claims about the jury instructions regarding those other grounds for relevance.
7
evidence is a combination of its logical force to prove a point and the

need at trial for evidence on that point.” Harris v. State, 314 Ga. 238,

263 (3) (a) (875 SE2d 659) (2022) (citation and punctuation omitted).

As for prejudice, “inculpatory evidence is inherently prejudicial; it is

only when unfair prejudice substantially outweighs probative value

that the rule permits exclusion.” Id. (cleaned up). In such cases,

unfair prejudice gives the factfinder an “improper basis” for deciding

the case on something other than “proof specific to the offense

charged.” Id. Johnson claims that the evidence of his gang

membership should have been excluded under Rule 403. Because

Johnson objected at trial on this basis, we review this claim for an

abuse of discretion. Moore v. State, 307 Ga. 290, 295 (3) (835 SE2d

610) (2019).

The trial court did not abuse its discretion in declining to

exclude the evidence under Rule 403. As discussed above, evidence

of Johnson’s gang membership was relevant to show Johnson’s

motive for targeting Edwards, and its probative value was

reasonably strong given the logical force of the State’s motive theory.

8
See Anglin v. State, 302 Ga. 333, 336-337 (3) (806 SE2d 573) (2017)

(gang membership relevant to motive in part because of gang code

requiring retaliatory violence). And although evidence of gang

membership “can be highly prejudicial,” Rule 403 allows exclusion

of evidence only if it carries a risk of “unfair” prejudice that

substantially outweighs its probative value. Id. at 337 (3). Johnson

does not explain why the evidence of his membership in a gang was

not just prejudicial, but unfairly so, and the trial court was within

its discretion to conclude that any risk of unfair prejudice did not

substantially outweigh the significant probative value of this

evidence. See Anglin, 302 Ga. at 336-337 (3).

his gang membership violated Rule 404. But Johnson does not

specify which portion of Rule 404 his claim falls under, and he

neither makes any argument nor cites any authority or relevant

portions of the record in support of that claim, so that claim is

deemed abandoned. See Supreme Court Rule 22.

3. Johnson also claims that the trial court erred in its jury

9
instructions. He contends that the trial court should have instructed

the jury on second-degree hijacking and robbery by intimidation,

which were lesser-included offenses of first-degree hijacking and

armed robbery (the crimes that Johnson was convicted of). When the

trial court declined to give those charges, trial counsel objected,

preserving the issue for ordinary appellate review. OCGA § 24-1-103

(a) (1).

Even assuming the trial court erred in not giving these

charges, any error was harmless. The only difference between first-

and second-degree hijacking is the presence of a weapon. Compare

OCGA § 16-5-44.1 (b) (1), with OCGA § 16-5-44.1 (b) (2). And the

jury heard that Johnson admitted to the police that when he

carjacked Edwards, he had a pistol in his pocket and told Edwards

“don’t make me whip it out.” Given this uncontested evidence, it is

highly probable that the jury would have found Johnson guilty of

first-degree hijacking even if it also had been instructed about the

second-degree offense. See McClain v. State, 303 Ga. 6, 9 (2) (810

SE2d 77) (2018) (an instructional error is harmless when it is

10
“highly probable that [the error] did not contribute to the verdict”).

The same goes for the armed robbery. That offense has a

different element — “use of an offensive weapon” — compared to

robbery by intimidation. Compare OCGA § 16-8-41 (a), with OCGA

§ 16-8-40 (a) (2). The “‘use of an offensive weapon’ takes place when

the weapon is used to commit a violent injury to the person of the

victim or to place the victim in reasonable apprehension of

immediately receiving a violent injury.” Lucky v. State, 286 Ga. 478,

482 (2) (689 SE2d 825) (2010) (emphasis added). See also Johnson v.

State, 331 Ga. App. 134, 136 (1) (770 SE2d 236) (2015) (holding that

use of an offensive weapon requires “creat[ing] a reasonable

apprehension on the part of the [victim] that an offensive weapon

was being used, regardless of whether the [victim] actually saw the

weapon”) (citation and punctuation omitted). And here, there was

no dispute that Johnson had a gun and told Edwards, “don’t make

me whip it out.” So the jury very likely would have concluded that

Johnson used an offensive weapon to put Edwards in reasonable

apprehension of receiving a violent injury and thus would have

11
found Johnson guilty of armed robbery even if it had been instructed

about robbery by intimidation. Thus, the failure to give that

instruction, too, was harmless.3

Judgment affirmed. Peterson, CJ, Warren, PJ, Bethel,
Ellington, McMillian, LaGrua, and Colvin, JJ, concur.

3 We have assumed two instructional errors for the failure to instruct on

the two lesser-included offenses. Johnson does not argue that he was
prejudiced by the cumulative effect of the alleged errors by the trial court. See
State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“A defendant who
wishes to take advantage of the [cumulative error rule] should explain to the
reviewing court just how he was prejudiced by the cumulative effect of multiple
errors.” (cleaned up)). We have also noted that a defendant who seeks a new
trial “based on the cumulative effect of errors outside of the evidentiary context
. . . would do well to explain why cumulative error should be extended beyond
the evidentiary context.” Jones v. State, 314 Ga. 605, 617 (5) n.9 (878 SE2d
505) (2022). But even assuming that the question of cumulative error is
properly before us, Johnson has “failed to establish that the combined
prejudicial effect of these errors requires a new trial.” Park v. State, 314 Ga.
733, 745 (4) (879 SE2d 400) (2022) (citation and punctuation omitted).
12

321 Ga. 422
FINAL COPY

S25A0131. JOHNSON v. THE STATE.

PINSON, Justice.

Alex Lee Johnson was convicted of felony murder and other

crimes related to the shooting death of Patricia Sabb.1 On appeal, he

contends that the trial court abused its discretion in admitting

evidence of his gang membership and that the trial court erred by

1 Johnson was indicted by a Chatham County grand jury on October 17,

2018. He was charged with malice murder, three counts of felony murder, ten
counts of aggravated assault, theft by receiving, ten counts of possession of a
firearm in the commission of a felony, armed robbery, hijacking a motor
vehicle, and two counts of possession of a firearm by a first offender
probationer. After trial, the jury found Johnson guilty of felony murder,
hijacking a vehicle, armed robbery, five counts of aggravated assault, theft by
receiving, and ten counts of possession of a firearm. The jury acquitted Johnson
of malice murder, and the trial court granted a mistrial as to several other
counts where the jury was unable to reach a verdict. The trial court sentenced
Johnson to life in prison with the possibility of parole for felony murder. The
trial court also sentenced Johnson to ten years after the life sentence for
several counts and a combined five years of probation following the ten-year
sentence for several counts. Johnson filed a motion for new trial that raised,
among other grounds, a merger issue. The trial court granted the motion as to
the merger issue and entered an amended sentencing order vacating the
sentence for one of the possession of a firearm counts. It denied the motion as
to the other grounds raised. Johnson then timely filed this appeal, which was
docketed to this Court’s term beginning in December 2024 and submitted for a
decision on the briefs.
refusing to instruct the jury on two lesser-included offenses. But the

trial court had the discretion to admit the gang evidence on the basis

that it was relevant to motive: evidence that Johnson was part of a

gang with a “code” that required retaliatory violence under the

circumstances made it more likely that he committed the crimes.

And any danger of unfair prejudice did not substantially outweigh

the probative value of this evidence. As for the claims of

instructional error, even assuming error, Johnson was not

prejudiced by the failure to instruct the jury about the lesser-

included offenses. It was highly likely that the jury still would have

found Johnson guilty of the greater offenses even if it had heard

those instructions, because the only difference between the greater

and lesser offenses was that the greater offenses included the

presence and use of a firearm, and Johnson admitted to having a

gun and using it to threaten the hijacking victim. So Johnson’s

convictions are affirmed.

1. The evidence at trial showed the following. On the night of

July 23, 2018, Sabb was shot twice as she stood in the kitchen of her

2
home in Savannah. She later died from her wounds. The gunshots

came from a car on the street. Several other people were in the home

at the time and testified to hearing anywhere from six to sixteen

total shots. One of the other people in the home called 911, and police

responded to the scene.

As police investigated the shooting, they came to believe that

Sabb was not the shooters’ target. Instead, they came to suspect that

the target was Sabb’s grandson, Rashamel Edwards. Edwards

visited Sabb’s home often, and he was known to be a member of a

subset of the Crips gang.

Johnson had a dispute with Edwards around the time the

shooting occurred. Johnson was dating Nigeria Collins, with whom

Edwards had a child. Collins testified that Johnson was frustrated

about Edwards being the father of the child. She further testified

that Johnson, like Edwards, was a Crips gang member. Messages

between Collins and Johnson showed that Johnson wanted to harm

Edwards, even though Johnson ultimately promised Collins he

would not take any action against him.

3
But Johnson broke that promise. In the days before the

murder, Johnson and a few others stole a car that Edwards was

driving. Johnson admitted to the hijacking, telling police that he had

a pistol in his pocket and told Edwards “don’t make me whip it out”

so he could steal the car from him. In retaliation for the hijacking,

Edwards put Johnson on a “death clock” — meaning that he would

kill Johnson within 48 hours.

The State’s theory of the case was that, because of the warning,

Johnson and others went to kill Edwards first at Sabb’s home.

Johnson eventually admitted to being in the car from which shots

were fired into Sabb’s home. He also admitted to having a gun in his

hand when the shooting happened, but he maintained that he never

fired it.

At trial, the State sought to introduce evidence of Johnson’s

and Edwards’s gang memberships. The State argued that the

evidence was relevant to show Johnson’s motive: by dating Collins,

who had a child with Edwards, Johnson had violated the “G Code”

that gang members were supposed to follow, which caused the

4
dispute between Johnson and Edwards. That dispute led Johnson to