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: September 6, 2023
S23A0620. RUTHENBERG v. THE STATE.
BOGGS, Chief Justice.
Appellant Kaylynn Shiquez Ruthenberg was convicted of
malice murder and other crimes arising from the shooting death of
James Jones and the robbery of Samuel Gallardo. Appellant
contends that the trial court erred in admitting evidence of his three
prior misdemeanor convictions for simple battery under OCGA § 24-4-418 and that the admission of this evidence violated OCGA § 24-4-403. Because Appellant has failed to carry his burden to show
plain error, we affirm. 1
1 Jones was killed on the evening of February 9, 2015, and Gallardo was
robbed early on February 10, 2015. On April 30, 2015, a Cobb County grand
jury indicted Appellant, along with Jordan Baker and Jonathon Myles, for the
malice murder of Jones, three counts of felony murder, aggravated assault with
a deadly weapon, armed robbery, possession of a firearm during the
commission of a felony, robbery by force of Gallardo, and two counts of violating
1. The evidence at trial showed as follows. Appellant, Jordan
Baker, and Jonathon Myles knew each other for years and saw each
other daily. In early 2015, Baker began running a robbery scam on
Craigslist. Baker would post ads for cell phones, and when
interested buyers replied, he would set up a meeting in the Jamaica
Cove neighborhood of Cobb County where he and Myles both lived.
When prospective buyers arrived, he would show them an empty cell
phone box, and when they produced the money for the phone, he
would snatch it from them and run away using shortcuts through
the Georgia Street Gang Terrorism and Prevention Act, OCGA §§ 16-15-1 to
16-15-11. The indictment also charged Appellant and his co-indictees with the
attempted robbery of Thomas Tuffa. Baker and Myles waived their right
against self-incrimination under the Fifth Amendment to the United States
Constitution and agreed to testify against Appellant in the hope that the State
later would reduce the charges against them. At a trial from October 31 to
November 7, 2017, the jury acquitted Appellant of the attempted robbery of
Tuffa but found him guilty of the remaining charges. On November 20, 2017,
the trial court sentenced Appellant to serve life in prison without the
possibility of parole for malice murder, a total of 25 years consecutive for
robbery by force and the firearm-possession offense, and concurrent terms of
20 years for armed robbery and 15 years each for the two counts of street gang
terrorism. The felony murder counts were vacated by operation of law, and the
count of aggravated assault with a deadly weapon merged. On the same day,
Appellant filed a motion for new trial, which he amended with new counsel on
July 10, 2019. After a hearing on August 1, 2019, the trial court entered an
order denying the motion on September 10, 2019. Appellant filed a timely
notice of appeal, and the case was docketed in this Court for the April 2023
term and submitted for decision on the briefs.
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the neighborhood. Baker almost got caught once, so he enlisted
Appellant and Myles, whom he knew to be in the Crips gang, to help
him.
On February 9, 2015, Baker and Myles picked up Appellant
from his apartment complex on the other side of town and returned
to their neighborhood. Jones had responded to one of Baker’s ads
and was scheduled to come by that evening. Appellant, Baker, and
Myles discussed robbing Jones and agreed to split the proceeds.
When Jones arrived at the address on Jamaica Cove that Baker had
given him, Baker approached Jones’s car alone while Appellant and
Myles stayed back. Baker got into the front passenger seat of Jones’s
car, leaving the door open.
After a couple of minutes, Appellant approached the front
passenger-side door, and Baker told him that Jones was not falling
for the scam. Appellant then pulled out his .45-caliber Glock pistol
and pointed it at Jones. When Jones tried to drive off, Appellant
fired a shot that struck Jones on his right shoulder and went
through his left carotid artery. As the car sped forward, Baker
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jumped out, and the car crashed into a vehicle in a yard and then
into a tree. Appellant, Baker, and Myles initially fled, but at
Appellant’s direction, Baker and Myles accompanied Appellant back
to the car, where they took Jones’s shoes and cell phone. Appellant
grabbed Jones’s cell phone from Myles and fired another shot that
struck Jones on the right side of the neck and exited out the left side
of his head. As Appellant, Baker, and Myles ran from the scene,
Myles dropped the shoes. Jones was dead from his gunshot wounds
by the time responding officers arrived at the scene. Surveillance
footage from a house on Jamaica Cove showed three figures
illuminated by a light running from the direction of Jones’s car near
the time of the shooting.
Appellant, Myles, and Baker went to Appellant’s apartment
later that evening. Between midnight and 12:30 a.m. on February
10, 2015, they left the apartment to walk to a nearby store to buy
cigarettes. While they were out walking, they came across Gallardo,
who was waiting for a taxi outside a restaurant that had just closed.
Appellant said, “let’s rob him,” and told Baker and Myles to subdue
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Gallardo and take his wallet. Baker knocked Gallardo to the ground
and held him down while Myles took his wallet. Appellant, Baker,
and Myles then ran toward Appellant’s apartment, but a police
officer responding to a different incident spotted them. Appellant
made it back to his apartment, but the officer and his partner
detained Baker and Myles and found Gallardo’s wallet on the
ground nearby.
Baker and Myles were taken in separate vehicles to police
headquarters, where they were put in different rooms and advised
of their rights pursuant to Miranda v. Arizona, 384 U.S. 436 (86 SCt
1602, 16 LE2d 694) (1966), which each then waived. After initially
denying any involvement, Baker and Myles said that it was
Appellant’s idea to rob Gallardo, and they both identified Appellant
as the person who shot Jones. Baker also said that Appellant and
Myles were associated with the Crips gang. Myles was carrying a
neatly folded blue bandana.
Based on the information from Baker and Myles, the police
brought Appellant to police headquarters, where he was interviewed
5
after being advised of his Miranda rights and waiving them. A video
recording of Appellant’s interview was later played at trial.
Appellant, who was carrying a neatly folded blue bandana,
acknowledged that he was present at the start of the confrontation
between Baker and Myles and Gallardo but claimed he immediately
ran off and was not involved in the robbery. Appellant admitted that
he knew about the Craigslist scam, that he talked to Baker about
robbing Jones, that he was present when Jones crashed his car, that
he heard gunshots, and that after running away, he went back to
the car, where Myles took Jones’s shoes. Appellant repeatedly
denied shooting Jones and denied even owning a gun.
While Appellant was being interviewed, the police were
searching his apartment pursuant to a search warrant. During the
search, the police found Jones’s cell phone, Appellant’s .45-caliber
Glock pistol, and another neatly folded blue bandana. When
Appellant was told about the gun found in his apartment, he
admitted that he was the person who shot Jones but claimed that he
only shot Jones once. He denied shooting Jones in self-defense and
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said that he shot Jones by accident. Ballistics testing later matched
two shell casings recovered from Jones’s car to the pistol found in
Appellant’s apartment, and Appellant’s DNA was found on the
pistol’s handle. A fingerprint from the interior of the front
passenger-side door window of Jones’s car was matched to
Appellant.
At trial, Myles testified that Appellant directed the attack on
Gallardo, and Baker and Myles both testified that Appellant shot
Jones. Myles acknowledged that he and Appellant were associated
with the Crips gang, that Appellant brought him into the gang, and
that Appellant was responsible for guiding him and telling him what
to do. The State’s gang expert testified that the color blue is
associated with the Crips, that Crips members often carry neatly
folded blue bandanas to signify to others that they are members of
the gang, and that the neatly folded blue bandanas found on Myles
and Appellant and in Appellant’s apartment were indicators that
they were Crips members. The expert further testified that murder,
aggravated assault, and armed robbery are the types of crimes
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committed by the Crips. The State introduced certified copies of
Appellant’s three prior misdemeanor convictions for simple battery,
which were based on guilty pleas.2
2. Appellant contends that the trial court erred in admitting
evidence of his three prior misdemeanor convictions for simple
battery under OCGA § 24-4-418, because the State presented no
evidence that he was in a gang when he committed the prior crimes
or that he committed them to further the interests of a gang.3
2 One of the battery convictions was accompanied by a conviction for
misdemeanor obstruction of a 911 call, but Appellant’s arguments focus on the
battery convictions.
3 OCGA § 24-4-418 states:
(a) 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 admissible and may be
considered for its bearing on any matter to which it is
relevant.
(b) In a proceeding in which the prosecution intends to offer
evidence under this Code section, the prosecutor shall
disclose such evidence to the accused, including statements
of witnesses or a summary of the substance of any testimony
that is expected to be offered, at least ten days in advance of
trial, unless the time is shortened or lengthened or pretrial
notice is excused by the judge upon good cause shown.
(c) This Code section shall not be the exclusive means to admit
or consider evidence described in this Code section.
8
However, Appellant did not object to the admission of this evidence
on this ground before or during trial, so we review this claim only
for plain error. See Mann v. State, 307 Ga. 696, 704 (838 SE2d 305)
(2020) (applying plain error review where the basis on which the
evidence had been challenged at trial was not the same basis on
which the evidence was challenged on appeal).
To show plain error, Appellant must point to an error that was
not affirmatively waived, that was clear and obvious beyond
reasonable dispute, that affected his substantial rights, and that
seriously affected the fairness, integrity, or public reputation of
judicial proceedings. See Lupoe v. State, 300 Ga. 233, 243 (794 SE2d
67) (2016). The third component of this test requires a defendant to
make an “affirmative showing” that the error probably did affect the
outcome below. Id. (cleaned up). “Satisfying all four prongs of this
standard is difficult, as it should be.” Id. (cleaned up).
As relevant here, OCGA § 16-15-3 (1) (J) defines “criminal gang activity”
to include the commission of “[a]ny criminal offense in the State of Georgia . . . that involves violence, . . . whether designated as a felony or not, and
regardless of the maximum sentence that could be imposed or actually was
imposed.”
9
Appellant has not made an affirmative showing that any error
in admitting the evidence of his three prior misdemeanor convictions
for simple battery under OCGA § 24-4-418 likely affected the
outcome of his trial. Appellant’s argument for harm focuses on the
fact that this is a murder case and his prior convictions were for
crimes of violence. But the evidence of Appellant’s guilt for the
murder of Jones was overwhelming. He admitted that he shot Jones.
His fingerprint was found inside Jones’s car. His DNA was found on
the gun that matched the shell casings in Jones’s car. The murder
weapon and Jones’s cell phone were recovered from his apartment
the morning after the shooting. And his friends Baker and Myles
both identified him as the shooter before and during trial. Thus,
Appellant has failed to demonstrate that any error in admitting the
evidence of his three prior misdemeanor convictions for simple
battery likely affected the outcome of his trial. See Tyner v. State,
305 Ga. 326, 331 (825 SE2d 129) (2019) (holding that the defendant
failed to satisfy the third part of the plain error test in light of the
overwhelming evidence of his guilt). Accordingly, he has not carried
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his burden to show plain error as to this claim. See Jones v. State,
314 Ga. 466, 469 (877 SE2d 568) (2022) (“We need not analyze all of
the elements of th[e] [plain error] test when . . . the defendant has
failed to establish one of them.” (cleaned up)).4
3. Appellant also contends that the admission of the
evidence of his prior convictions violated OCGA § 24-4-403, because
the probative value of the evidence was substantially outweighed by
the danger of unfair prejudice and confusion of the issues.5 Contrary
to Appellant’s assertion, he did not object to the admission of this
evidence based on OCGA § 24-4-403 at any time before or during
4 Appellant’s first enumeration of error mentions the alleged lack of a
hearing, the absence of a limiting instruction, and due process, but in the
accompanying argument section, he does not mention a hearing or a limiting
instruction and refers only in passing to due process, making no substantive
argument regarding these matters. Accordingly, any claim on these grounds is
deemed abandoned. See Supreme Court Rule 22 (“Any enumerated error not
supported by argument . . . in the brief shall be deemed abandoned. . . .”).
5 OCGA § 24-4-403 states:
Relevant 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.
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trial. Thus, we review this claim only for plain error. See Mann, 307
Ga. at 704.
Appellant has not made an affirmative showing that any error
in admitting the evidence of his prior convictions in violation of
OCGA § 24-4-403 likely affected the outcome of his trial. Again,
Appellant’s argument for harm focuses on the fact that this is a
murder case and his prior convictions were for crimes of violence.
But as we explained above in Division 2, the evidence of Appellant’s
guilt for the murder of Jones was overwhelming, including his
admission to shooting Jones, his fingerprint inside Jones’s car, his
DNA on the gun that matched the shell casings in Jones’s car, the
discovery of the murder weapon and Jones’s cell phone in
Appellant’s apartment the morning after the shooting, and the
incriminating pretrial statements and trial testimony of Baker and
Myles. Thus, Appellant has failed to demonstrate that any error in
admitting the evidence of his three prior misdemeanor convictions
for simple battery likely affected the outcome of his trial. See Tyner,
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305 Ga. at 331. Accordingly, he has not carried his burden to show
plain error as to this claim.
Judgment affirmed. All the Justices concur.
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