Following a jury trial, Barry Williams was convicted of two counts of fleeing or attempting to elude a police officer, and one count each of reckless driving, obstruction of an officer, driving without a license, speeding, operating an unregistered vehicle, failure to maintain lane, driving without proof of insurance, failure to stop at a stop sign, and a turn signal violation. Williams filed a motion for new trial, which the trial court denied. He appeals, claiming that the trial court plainly erred by allowing the arresting officer to testify about alleged hearsay and by denying his motion in limine regarding the States unrebutted evidence at trial. Finding no reversible error, we affirm.
Viewed in the light most favorable to the jurys verdict, the evidence presented at trial revealed the following. See Gates v. State, 298 Ga. 324, 325 (1), 781 S.E.2d 772 (2016). On April 19, 2017, a deputy with the Paulding County sheriffs office conducted zone patrolling for speeding vehicles in a marked police vehicle. The sheriffs office had received “several complaints in reference to speeding vehicles and speeding motorcycles” in the area. As the deputy was conducting a zone patrol, he heard a motorcycle approaching at a high rate of speed, and he observed that the motorcycle did not have a license plate, so he attempted to complete a traffic stop. A video recording of the deputys encounter with the motorcyclist was played for the jury.
The motorcyclist sped past the deputy, turned into a neighborhood, performed a u-turn to face the deputy and slowed to a stop. While facing the deputy, the motorcyclist pushed up his helmet visor and “waved to [the deputy] like come on.” The motorcyclist then drove away very quickly, and the deputy testified that he failed to use a turn signal, failed to maintain a lane, and failed to stop at a stop sign. Based on the deputys training and experience, he estimated that the motorcyclist drove in excess of 110 miles per hour. After speeding away for approximately one minute, the motorcyclist slammed on his brakes, “slid[ ] off into [a] ditch[,] ․ laid the [motorcycle] over and jumped off and began running” into the woods. The deputy did not give chase on foot because he believed it was not safe to follow the suspect into the woods by himself, and he knew the identity of driver. As the motorcyclist ran away, the deputy yelled, “I know who you are! I got you!” He then radioed in to the sheriffss office dispatch and reported that the motorcyclist had escaped on foot and provided the direction where the suspect was traveling. The deputy described the motorcyclists appearance to dispatch and said “I know who he is ․ names Barry Williams.” The deputy testified that he knew Williams because Williams “and [the deputys] sister have children together.”
Following the chase, the deputy learned that Williams did not have a motorcycle drivers license or a motorcycle drivers permit, that the motorcycle was not registered to Williams, and there was no valid insurance for the motorcycle.
This appeal follows the denial of Williamss motion for new trial.
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1. Williams claims that the trial court committed plain error when it allowed the deputy to testify that he had “previous intel” regarding the identity of the motorcyclist. Specifically, when the deputy was asked during the States direct examination how he knew that Williams was the motorcyclist, the deputy replied that he saw Williams when he waved the deputy on, and that “we had previous intel of him being on that motorcycle.” Williams failed to object to this testimony, therefore the error is subject to plain error review. See Gates, supra at 326 (3), 781 S.E.2d 772. In plain error review, we apply the four-pronged standard found in State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011):
First, there must be an error or defect - some sort of deviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellants substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Id. at 33 (2) (a), 718 S.E.2d 232 (citation, punctuation and emphasis omitted). “Thus, beyond showing a clear or obvious error, plain-error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome below.” Gates, supra at 327 (3), 781 S.E.2d 772 (citation and punctuation omitted).
Setting aside whether the testimony was properly admitted, Williams cannot affirmatively show that the alleged error probably affected the outcome below. The deputy stated that he knew that Williams was the motorcyclist because he saw him and because he was familiar with Williams, who was the father of his sisters children. Therefore, it cannot be said that any error in the admission of the claimed hearsay evidence likely affected the outcome below. See Allen v. State, 310 Ga. 411, 417 (3), 851 S.E.2d 541 (2020) (under plain error analysis, “[t]he erroneous admission of hearsay is harmless where substantial, cumulative, legally admissible evidence of the same fact is introduced”) (citation and punctuation omitted); see generally Gates, supra at 327 (3), 781 S.E.2d 772.
2. Williams contends that “the trial court erred when it allowed the State to argue that because Williams did not rebut the States evidence, he was not entitled to the presumption of innocence.”
(a) Prior to closing arguments, Williams moved to restrict the State from mentioning during closing “[a]ny language ․ arguing about how the evidence is unrebutted in this case [because] thats burden shifting on to the Defense.” The trial court denied Williamss motion in limine and held that the State could argue that Williams failed to rebut or explain the States evidence. “The denial of a motion in limine is reviewed on appeal for abuse of discretion.” Rowland v. State, 306 Ga. 59, 67 (5), 829 S.E.2d 81 (2019).
“An argument that the defendant has not rebutted or explained the States evidence does not amount to an improper burden-shifting argument.” Kilgore v. State, 300 Ga. 429, 432 (2), 796 S.E.2d 290 (2017). As Williamss motion in limine sought to limit the State from arguing that he had failed to rebut the States evidence, the trial court did not abuse its discretion in denying Williamss motion. See generally id.
(b) Williams also claims that the trial court erred by allowing the State to improperly argue that the burden of proof had shifted to him. Specifically, the prosecutor stated the following during the States closing argument:
When the defendant walked into this courtroom and before the evidence was presented, he was presumed innocent. But at this point now that all the evidence is in, all of the evidence you heard from our officer, all the evidence that the State had to present on this case is in, it is unrebutted at this point. We have all the evidence. He no longer has that presumption of innocence.
The prosecutors statements on the presumption of innocence misstate the law. See Clark v. State, 307 Ga. 537, 544 (2) (c), 837 S.E.2d 265 (2019); Scott v. State, 227 Ga. App. 900, 903 (6), 490 S.E.2d 208 (1997). As such, “the trial court should have so instructed the jury.” Scott, supra. However, the particular facts of this case show no grounds for reversal. During the jury charge, the trial court instructed the jury that the law was to come from the court and charged the jury on the burden of proof and presumption of innocence, stating that Williams was presumed innocent until proven guilty. The jury was presumed to follow the trial courts instructions. See generally Clark, supra at 545 (2) (c), 837 S.E.2d 265. Considering the trial courts subsequent instructions, and the evidence against Williams, we find any error harmless beyond a reasonable doubt. See generally id.; Scott, supra.
Judgment affirmed.
FOOTNOTES
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. While Williamss motion for new trial was made on general grounds, with some exceptions not present in Williamss appeal, “[i]t is not necessary, in order to raise an issue on appeal, that it be raised in the motion for new trial.” Freeman v. State, 269 Ga. 337, 339 (1) (d), 496 S.E.2d 716 (1998); see OCGA § 5-5-40 (g).
Mercier, Judge.
Miller, P. J., and Senior Appellate Judge Herbert E. Phipps concur.