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: October 11, 2023
S23A0429. RIVERA v. THE STATE.
LAGRUA, Justice.
On May 19, 1996, the body of Bridgett Parker was discovered
near an abandoned mobile home in Ben Hill County. Parker’s throat
had been cut, and she had been raped. Soon after, law enforcement
officers identified Appellant Octavious Rivera as a possible suspect
in the crimes against Parker, and over the next few weeks, they
interviewed Rivera regarding Parker’s death, executed a search
warrant for his car and residence, and obtained a sample of his DNA;
however, they did not arrest Rivera at that time. In February 2018,
following the GBI’s reexamination of Parker’s sexual assault kit
using new DNA testing methods and technology, Rivera’s DNA was
identified as a match for DNA found inside Parker’s vaginal area,
and he was arrested. Rivera was later convicted of felony murder
predicated on aggravated assault, as well as rape.1 On appeal,
Rivera contends that the trial court erred in the following respects:
(1) by denying Rivera’s motion for directed verdict on the ground
that the State failed to allege the applicable tolling provision or
exception to the statute of limitation with respect to Count 3
(aggravated assault) and Count 4 (rape) in the indictment, and on
the ground that the statute of limitation on those counts was not
tolled; and (2) by permitting the State to admit other-acts evidence
under OCGA § 24-4-404 (b) and OCGA § 24-4-413 at trial. For the
reasons that follow, we affirm Rivera’s felony murder conviction and
reverse his rape conviction.
1 In April 2018, Rivera was indicted by a Ben Hill County grand jury on
charges of malice murder (Count 1), felony murder predicated on aggravated
assault (Count 2), aggravated assault (Count 3), and rape (Count 4). In June
2019, a jury found Rivera guilty of all counts except malice murder. The trial
court sentenced Rivera to serve life in prison with the possibility of parole on
the felony murder count and a consecutive sentence of life in prison with the
possibility of parole on the rape count. The aggravated assault count merged
with the felony murder count for sentencing purposes. On July 25, 2019,
Rivera filed a timely motion for new trial. After Rivera waived a hearing on
the motion for new trial, the trial court summarily denied Rivera’s motion for
new trial on April 18, 2022. Rivera filed a timely notice of appeal to this Court
on April 28, 2022, and the case was docketed to the April 2023 term of this
Court and submitted for a decision on the briefs.
2
The evidence presented at Rivera’s 2019 trial showed that, in
the early morning hours of May 19, 1996, Gloria Edmonson and Lee
Colson discovered Parker’s body outside an abandoned mobile home
on property owned by Edmondson’s father in Ben Hill County. After
Edmonson and Colson reported Parker’s death, law enforcement
officers with the Ben Hill County Sheriff’s Department and the GBI
responded to the scene.
One of the responding officers, GBI Special Agent Bruce Willis,
located Parker’s body about 30 feet from the abandoned mobile home
and noted she had a significant wound in her neck. According to
Agent Willis, between the mobile home and Parker’s body, there
were four large bloodstains on the ground, as well as “[a] very
significant amount of blood” on and around the body, including blood
spatter on Parker’s shoes. Agent Willis also noted that Parker’s
body had post-mortem injuries caused by animal and insect activity
and a loss of pigment coloration. Agent Willis concluded that, given
the animal and insect activity and the decomposition to the body,
Parker’s body had been in that location about “24 to 36 hours.”
3
The medical examiner determined that Parker’s cause of death
was “sharp force injuries to the neck.” According to the medical
examiner, Parker had a “stab slash type of wound,” where a “sharp
instrument” was “stabbed in th[e neck] area” and then “drawn back
down.” The medical examiner explained that, because Parker was
very petite—with a height of 5’ 3” and weight of 98 pounds—the
wound was “deep enough to cause injury to some of the arteries that
go to the right side of the face,” including the “external carotid
artery, the right lingual artery, and the right facial artery.” The
medical examiner observed that all three of these arteries were
“incised, causing massive amounts of bleeding.”
The medical examiner also observed “deep bruising” on
Parker’s “anterior vaginal wall” and “significant hemorrhage or
bleeding” to the “neck of the bladder” and “right peripelvic tissues”
from blunt force trauma caused by a “very forceful penetration.” The
medical examiner did not see any lacerations in the vaginal area,
which suggested to him that Parker was penetrated with a penis, as
opposed to another device or object. The medical examiner also
4
conducted a rape kit and collected vaginal swabs and smears from
Parker. The medical examiner found no spermatozoa on the vaginal
swabs and smears, which was not unusual given the position of the
body and the amount of decomposition caused by the exposure to
heat, humidity, and animal and insect activity over the course of
about two days.
Over the next few days, law enforcement officers interviewed
several witnesses who established that the last time anyone saw
Parker before her death was on the night of Friday, May 17, 1996,
two days prior to the date her body was found. Edmonson, who was
close friends with Parker, told law enforcement officers that she and
Parker attended a viewing at a funeral home together between 7:30
and 8:00 p.m. on May 17, and that they then went their separate
ways. According to Earnestine Balom, she gave Parker a ride to a
nightclub in downtown Fitzgerald later that same evening, and
Ethel Wilcox said that she saw Parker leaving this nightclub alone
and “on foot” around 9:30 p.m. Balom also told law enforcement
officers that, after she dropped Parker off at the nightclub, she had
5
difficulty exiting the nightclub’s parking lot because a “long and old
car” had parked in front of the nightclub and was blocking part of
the driveway. Each woman stated that she did not see Parker alive
again.
While investigating Parker’s death, law enforcement officers in
Ben Hill County received information from law enforcement officers
in neighboring Irwin County about a man—later identified as
Rivera—who had been involved in two incidents in Irwin County on
May 8, 1996 (the “Irwin County incidents”), a little more than a week
before the crimes against Parker were committed. One of the
victims in the Irwin County incidents told law enforcement officers
that the man involved in those incidents was driving a beige
Mercury Grand Marquis, and another victim reported to law
enforcement officers that the man was driving a “tan-brown looking
car” with four doors. During the investigation of the crimes against
Parker, Ben Hill County law enforcement officers learned that
Rivera, who lived in Ben Hill County, owned a beige 1985 Mercury
Grand Marquis. Law enforcement officers then spoke to Balom
6
again—the woman who dropped Parker off at the nightclub on the
night of May 17—and showed her a picture of Rivera’s Mercury
Grand Marquis. According to Balom, the car in the photograph
“looked like” the car that was partially blocking her exit from the
nightclub’s parking lot on the night of May 17.
GBI Special Agent Cary Hames interviewed Rivera on May 23,
1996 at the Ben Hill County Sheriff’s Department. After advising
Rivera of his Miranda rights,2 which Rivera agreed to waive, Agent
Hames asked Rivera to provide some personal details, including
whether he knew the victim, Parker. Rivera told Agent Hames that
he had moved to the area about one year before from New York City
and that he had met Edmonson about one month prior, but that he
had never met and did not know Parker. When asked about his
activities and whereabouts between May 17 and 19, Rivera told
Agent Hames that the only time he left his residence during that
period was on Saturday, May 18, between 12:00 p.m. and 1:00 p.m.,
to go to the grocery store to “buy supplies for a cookout.”
2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
7
On June 3, GBI Special Agent Stephen Tinsley, the primary
case agent assigned to this case, interviewed Rivera at the
Fitzgerald Police Department. During this interview, Rivera also
told Agent Tinsely that he had moved from New York about one year
before “because he wanted a better life for his children.” Rivera
indicated that he had held several jobs over the past year, including
working for Edmonson Logging Company—a company owned by
Edmonson’s father, Johnny Edmonson. When Agent Tinsley asked
Rivera if he knew Parker, Rivera changed his earlier statement and
said that he had “met [Parker] a short time earlier through
Edmonson,” who was “their mutual friend.” Rivera said he heard
Parker had been killed and that he was familiar with the area where
her body was discovered because he had previously “collect[ed] a
paycheck” from Johnny Edmonson at the mobile home located on
that property. Rivera stated that he did not have any relationship
with Parker and that he had only been around her at a nightclub or
bar when Edmonson was also present. Agent Tinsley inquired about
Rivera’s whereabouts during the timeframe leading up to Parker’s
8
death, and Rivera told Agent Tinsley that he stayed home all day
Friday, May 17, and Saturday, May 18, except for leaving briefly on
May 18 to pick up charcoal at the grocery store for a barbecue.
On June 5, Agent Tinsley obtained a search warrant3 for
Rivera’s Mercury Grand Marquis, his residence, and his person
based on Balom’s statement that Rivera’s car looked similar to the
one she saw parked at the nightclub where Parker was last seen on
May 17. Agent Tinsley and Agent Willis executed the search
warrant at Rivera’s residence on June 6. The agents seized a pair
of boots from the residence because Agent Tinsley observed “what
appeared to be [] some kind on fluid on [them] such as possible blood
or semen;” however, subsequent testing of the boots by the GBI was
negative for the presence of blood or spermatozoa. Agent Willis also
collected fingerprints from the interior and exterior of Rivera’s car
and removed the floor mats for testing. The testing revealed that all
of the fingerprints in the car belonged to Rivera, and the floor mats
were negative for the presence of any blood, saliva, or spermatozoa.
3 The search warrants do not appear in the record of this case.
9
When Agent Willis searched the trunk of Rivera’s car, he found
“cleaning supplies”—specifically, laundry detergent and Clorox—as
well as a laundry bag full of clothes, wire, and duct tape. However,
law enforcement officers did not find any evidence demonstrating
that wire or duct tape had been utilized in the commission of the
crimes against Parker. Agent Willis also compared plaster tire casts
he had taken of tire tracks located at the crime scene with the tires
on Rivera’s car, and he noted that the tire impressions from Rivera’s
car “were visibly consistent with what he saw at the scene.” At the
conclusion of the search, Agent Tinsley transported Rivera to the
hospital, where Rivera consented to having his blood drawn and
samples taken of his hair and saliva. These samples were then
collected and sent to the GBI crime lab for analysis.
Lynn Langford, a scientist who worked in the Division of
Forensic Sciences for the GBI and testified as an expert in forensic
DNA analysis at trial, ran tests on Rivera’s blood sample, Parker’s
fingernail clippings, and grass collected from the crime scene, among
other items. According to Langford, based on the DNA testing
10
available at that time, no DNA—other than Parker’s—was
discovered on any evidence collected from Parker’s person or from
the crime scene.
At this point, law enforcement lacked probable cause to arrest
anyone for the crimes against Parker or any further leads to pursue,
and the investigation went into inactive status. All of the evidence
collected in this case, including Parker’s vaginal swabs and Rivera’s
bloodstain card, were then sealed and maintained in the GBI crime
lab or in lockers at the Ben Hill County Sheriff’s Department.
18 years later, in December 2014, GBI Agent Logan Holland
was assigned to Parker’s murder case to reopen the investigation.
As part of the investigation, Agent Holland resubmitted Parker’s
sexual assault kit to the GBI crime lab for testing, and he
interviewed several witnesses again, including Edmonson, who told
Agent Holland that she knew Rivera in 1996 because they used to
work together at a packing company, but she did not know anything
about his potential involvement in the crimes against Parker.
Erin Norris, a forensic biologist with the GBI who testified as
11
an expert in forensic DNA analysis at trial, received the sexual
assault kit collected from Parker and Rivera’s “bloodstain card” from
Agent Holland for testing. Norris explained that DNA testing had
advanced significantly since 1996, and she was able to use the
vaginal swabs from Parker to obtain a DNA profile for comparison
to the DNA profile she obtained from Rivera’s bloodstain card.
Based on her testing and analysis, Norris concluded that the DNA
profile on Parker’s vaginal swabs was a match to Rivera.
Based on the results of the DNA testing, Agent Holland started
searching for Rivera. After Agent Holland was able to locate a
contact number for Rivera, he called Rivera on February 1, 2018,
and arranged to meet with him in Tifton. Prior to meeting with
Rivera, Agent Holland obtained an arrest warrant for Rivera. On
the afternoon of February 1, Agent Holland met with Rivera at
Rivera’s workplace. Prior to interviewing Rivera, Agent Holland
advised Rivera of his Miranda rights, which Rivera agreed to waive.
During the interview, which was audio-recorded, Rivera initially
told Agent Holland that Parker’s name did “not sound familiar at
12
all.” A few minutes later, Rivera said that he remembered getting a
phone call from law enforcement officers about a week after Parker’s
death, advising that Parker was dead and that they wanted to talk
to him. Rivera said he went to “the station,” but he told the officers
that he “didn’t know anything else about it.” Agent Holland showed
Rivera a picture of Parker, and Rivera said that he did not recognize
her and that, if he knew her, he did not remember her or think he
ever had a sexual relationship with her. Rivera recalled that Parker
had been murdered, but stated that he did not know how she was
killed or any of the details about her murder. Rivera was arrested
at the conclusion of this interview.
At trial, the State was permitted to present evidence from
several witnesses regarding the Irwin County incidents addressed
above under OCGA § 24-4-404 (b) (“Rule 404 (b)”).4 The State
presented this evidence for purposes of showing Rivera’s intent to
4 The admission of this other-acts evidence forms the basis of one of
Rivera’s enumerations of error on appeal, which will be discussed in more
detail in Division 3 below.
13
commit an aggravated assault against Parker with an unknown
object resulting in serious bodily injury; preparation for committing
the charged offenses; plan to commit a series of similar crimes; and
motive.
The first Irwin County incident was presented through the
testimony of the victim, Deidre Gamble. Gamble testified that, on
May 8, 1996, when she was 13 years old, she was walking to her
grandmother’s house when a “tan-brown looking car” with four doors
passed her and pulled over on the side of the road. According to
Gamble, a man got out of the car holding a hammer and told her to
“come here.” Gamble testified that she was terrified, and she “took
off running” up the street. The man chased her, but Gamble was
able to get away and ran to her grandmother’s house. A short time
later, Gamble’s grandmother took Gamble to the police station to
report the incident, and she described the vehicle that stopped and
the man who approached her that afternoon. At trial, Gamble
identified Rivera as the man who chased her on May 8, 1996.
The second Irwin County incident was presented through the
14
testimony of the victims, Tammy Bargaineer and Shamia Tucker,
and an eyewitness, Halique Jordan. Bargaineer testified that, on
the evening of May 8, 1996, she and Tucker were walking to an
arcade in Ocilla when they observed a beige Mercury Grand Marquis
drive down the street and stop in the middle of the road. According
to Bargaineer, a man jumped out of the Grand Marquis and grabbed
Bargaineer’s arm with one of his hands, while he was holding an
object in his other hand. Bargaineer did not see the object well, but
she remembered it had a silver top on it. Bargaineer snatched her
arm away and started running. Tucker, who was 16 years old at the
time, testified that the man then grabbed her and “tried to take [her]
to the car.” She said that she was “fighting him off,” and he “hit
[her] across the head” and “busted [her] head open.” According to
Tucker, a woman who was driving by stopped her car and offered to
help. Tucker testified that, while she was trying to get into the
woman’s car, the man was trying to prevent her from doing so, and
she wrestled out of her shirt to get away from him. Tucker was able
to get into the woman’s car, but the man reached in and started
15
choking the woman. Tucker then noticed that her friend, Jordan,
had stopped his car nearby. Jordan testified that, as he was driving
down the street, he saw a man pulling on Tucker and “beating her,”
so Jordan stopped to help. Tucker got into the back seat of Jordan’s
car, and Jordan drove Tucker to the police station, where she
described the person who attacked her and the vehicle he was
driving. Tucker was later transported to the hospital, where she
received treatment and stitches for her head injury. At trial,
Bargaineer, Tucker, and Jordan identified Rivera as the man who
assaulted Tucker on May 8, 1996.
1. On appeal, Rivera contends that the trial court erred in
denying his motion for directed verdict because the State failed to
assert an applicable tolling provision or exception to the statute of
limitation in the aggravated assault and rape counts of the
indictment to show that these offenses were not time-barred. We
conclude that, with respect to the rape count, the trial court erred in
denying Rivera’s motion for directed verdict, and with respect to the
aggravated assault count, the statute of limitation is not at issue
16
because that count merged for sentencing purposes with the felony
murder count, for which there is no statute of limitation. See Lewis
v. State, 306 Ga. 455, 462 (4) (831 SE2d 771) (2019) (concluding that
the appellant’s “challenge to the aggravated assault conviction [wa]s
moot because that count” had merged with the felony murder count).
(a) The State argues on appeal that, because Rivera raised his
challenge to the indictment for the first time in a motion for directed
verdict of acquittal—as opposed to a demurrer or plea in bar prior to
trial—this enumeration of error was not properly preserved for
appellate review by this Court. While we agree with the State that
challenges to the form of an indictment must be raised before trial
or they are waived, challenges to the substance of an indictment can
be raised at any time before, during, or after trial. See Gilmore v.
State, 118 Ga. 299, 299 (1) (45 SE 226) (1903) (holding that a
challenge to the substance of an indictment, where the “indictment
or accusation is so defective that judgment upon it would be
arrested,” can be raised at any time during trial). Thus, as explained
in more detail below, Rivera has not waived this claim on appeal.
17
“An indictment may be challenged by general or special
demurrer.” Kimbrough v. State, 300 Ga. 878, 880 (2) (799 SE2d 229)
(2017) (citation and punctuation omitted.) “A general demurrer
challenges the sufficiency of the substance of the indictment,
whereas a special demurrer challenges the sufficiency of the form of
the indictment.” Green v. State, 292 Ga. 451, 452 (738 SE2d 583)
(2013) (citing Bramblett v. State, 238 Ga. 336, 337-338 (1) (236 SE2d
580) (1977)). “[A] plea in bar is [also] [a] proper procedural vehicle
through which to assert” a challenge to the form or substance of an
indictment. State v. Barker, 277 Ga. App. 84, 87 (3) (625 SE2d 500)
(2005).
“Special demurrers,” which challenge the form of the
indictment, must be “made at or before arraignment” or before trial
or they “are waived.” Bramblett, 238 Ga. at 337 (1). See also Taylor
v. State, 303 Ga. 583, 587 (4) (814 SE2d 302) (2018). Similarly,
general demurrers, which challenge the substance of the indictment,
can be made before trial, but they are not required to be raised at
that time. “A challenge to the sufficiency of the substance of the
18
indictment can be made after trial by means of a motion in arrest of
judgment,” Bramblett, 238 Ga. at 338 (1), or “attention may be called
to [such a] defect at any time during trial.” Gilmore, 118 Ga. at 299
(1) (emphasis supplied). See also, e.g., Scandrett v. State, 124 Ga.
141, 141 (2) (52 SE 160) (1905) (holding that challenges to the
substance of the indictment can be made “by motion in arrest of
judgment”); McKay v. State, 234 Ga. App. 556, 559 (2) (507 SE2d
484) (1998) (holding that “because a general demurrer attacks the
legality of an indictment, it is permissible to raise this ground”
before or during trial or “after verdict by a motion in arrest of
judgment even if there was no earlier objection”).
Where, as here, a defendant challenges an indictment based on
the State’s failure to assert a tolling provision or exception to the
statute of limitation therein, this is a challenge to the substance of
the indictment. See Lynch v. State, 346 Ga. App. 849, 866-867 (815
SE2d 340) (2018) (McMillian, J., concurring specially). Thus, Rivera
was permitted to raise this challenge to the substance of the
indictment for the first time in a motion for directed verdict at
19
trial—a motion which, under these circumstances, substantively
amounts to a general demurrer that can be raised at any time. See,
e.g., Gilmore, 118 Ga. at 299 (1); State v. Mondor, 306 Ga. 338, 340
(830 SE2d 206) (2019) (“Magic words are not required to file a
demurrer, and the substance and function of a motion or pleading
generally controls our review.”); Gulledge v. State, 276 Ga. 740, 741
(583 SE2d 862) (2003) (“[T]here is no magic in nomenclature and . .
. substance controls our consideration of pleadings.”); Moss v. State,
220 Ga. App. 150, 151 (469 SE2d 325) (1996) (holding that the trial
court erred in denying the defendant’s motion for a directed verdict
when no exception to the statute of limitation was alleged in the
indictment). Therefore, Rivera did not waive this argument, and we
may address it on appeal.
(b) “In criminal cases, the statute of limitation runs from the
time of the criminal act to the time of the indictment.” Taylor v.
State, 306 Ga. 277, 286 (3) (b) (830 SE2d 90) (2019) (citation and
punctuation omitted). “Where an exception is relied upon to prevent
the bar of the statute of limitation, it must be alleged and proved.”
20
Id. (citing Hollingsworth v. State, 7 Ga. App. 16, 16 (1) (65 SE 1077)
(1909) (punctuation omitted)). To that end, “[t]his Court has held
that an exception to the statute of limitation is a ‘material allegation’
which must be alleged in the indictment.” Id. (quoting McLane v.
State, 4 Ga. 335, 342 (2) (45 SE 226) (1848) (holding that the State
is required to allege in the indictment “the particular exception”
which the State “intended to [] prove[] at trial”)). See also, e.g.,
Jenkins v. State, 278 Ga. 598, 604 (1) (B) (604 SE2d 789) (2004) (“[I]t
is true that an exception to the statute of limitations must be pled
in the indictment if the State is relying on one.”); Hansford v. State,
54 Ga. 55, 58 (3) (1875) (holding that “if the offense appears on the
face of the indictment to be barred by the statute of limitation in
reference thereto, and some exception in the statute is relied upon
to prevent its bar, such exception should be alleged in the
indictment”).
More than a century ago, this Court explained that
[o]n the score of principle, we think it was incumbent on
the prosecuting officer, to have alleged in the indictment
the particular exception on which he relied to prevent the
21
operation of the Statute, so that it might affirmatively
appear that the defendant was liable under the law, to be
arrested, tried and convicted for the offence; and for the
further reason, that he might be prepared at the trial, to
traverse all the material allegations made by the State
against him.
McLane, 4 Ga. at 342 (2). And, since that time, the Court of Appeals
has made it clear that fundamental principles of due
process require indictments or other charging
instruments to not only show that a public law of the
State has been violated, but also that the defendant has
been indicted therefor, in the manner, and within the
time, prescribed by the laws of the land.
Lynch, 346 Ga. App. at 866 (McMillian, J., concurring specially)
(citing McLane, 4 Ga. at 340 (2); punctuation omitted). “Thus, if an
accused is tried on an indictment that is untimely on its face and no
exception or tolling provision is alleged, the State cannot introduce
evidence of the exception at trial, and any prosecution under that
indictment will not be sustained, even if an accused has been tried
and convicted thereon.” Id. See also, e.g., Moss, 220 Ga. App. at
151 (holding that, because “no exception was alleged in the
indictment, the State was incapable of proving an exception to toll
the applicable four-year statute of limitation, as such proof was
22
inadmissible”); Hollingsworth, 7 Ga. App. at 16 (1) (holding that “the
evidence that the offense was not barred by the statute of limitations
was inadmissible, unless it was pleaded in the indictment”).
Here, it is undisputed that the State did not allege an
applicable tolling provision or exception to the statute of limitation
in the rape count of the indictment as the law required it to do. And,
“because the indictment did not include the required language to
show that the statute of limitation period[] had been tolled, the
indictment was fatally defective as a matter of law” as to the rape
count, and Rivera’s “conviction[] on th[at] count[] must be reversed.”
Lynch, 346 Ga. App. at 348 (3) (a) (i).
2. Rivera next contends that the trial court erred in denying
his motion for directed verdict because his aggravated assault and
rape charges were indicted outside the applicable four and fifteenyear statutes of limitation, and the State failed to prove at trial that
the statutes of limitation were tolled by the person-unknown
exception in OCGA § 17-3-2 (2)5 or the DNA exception in OCGA §
5 OCGA § 17-3-2 (2) provides that “[t]he period within which a
23
17-3-1 (d) (3).6 However, given our conclusion that the rape count
must be reversed because the State failed to allege the applicable
tolling provision or exception to the statute of limitation in the
indictment and because the challenge to the aggravated assault
count is moot, we need not reach the merits of this argument on
appeal.
3. Finally, Rivera contends that the trial court erred in
permitting the State to admit evidence of the Irwin County incidents
under Rule 404 (b) because these incidents were irrelevant to any
issue other than Rivera’s character and because the probative value
of this other-acts evidence was substantially outweighed by the
prosecution must be commenced under Code Section 17-3-1 or other applicable
statute does not include any period in which: . . . The person committing the
crime is unknown or the crime is unknown[.]”
6 OCGA § 17-3-1 (d) provides that
[a] prosecution for the following offenses may be commenced at any
time when deoxyribonucleic acid (DNA) evidence is used to
establish the identity of the accused: . . . Rape, as defined in [OCGA
§] 16-6-1; . . . provided, however, that a sufficient portion of the
physical evidence tested for DNA is preserved and available for
testing by the accused and provided, further, that if the DNA
evidence does not establish the identity of the accused, the
limitation on prosecution shall be as provided in subsections (b)
and (c) of this Code section.
24
danger of unfair prejudice. Rivera also contends that the trial court
erroneously admitted this evidence under OCGA § 24-4-4137 (“Rule
413”) because there was no evidence of sexual assault in either of
the Irwin County incidents.8 We conclude that, even if the trial court
7 Rule 413 provides:
(a) In a criminal proceeding in which the accused is accused of an
offense of sexual assault, evidence of the accused’s commission of
another offense of sexual assault 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.
(d) As used in this Code section, the term “offense of sexual
assault” means any conduct or attempt or conspiracy to engage in:
(1) Conduct that would be a violation of [OCGA §§] 16-6-1, 16-6-2, 16-6-3, 16-6-5.1, 16-6-22, 16-6-22.1, or 16-6-22.2;
(2) Any crime that involves contact, without consent, between any
part of the accused’s body or an object and the genitals or anus of
another person;
(3) Any crime that involves contact, without consent, between the
genitals or anus of the accused and any part of another person’s
body; or
(4) Any crime that involves deriving sexual pleasure or
gratification from the infliction of death, bodily injury, or physical
pain on another person.
8 We note that, while the trial court initially ruled that one of the Irwin
County incidents was also admissible under Rule 413 because the court was
under the impression that a sexual assault had occurred during the incident
since the victim came out of her shirt, the trial court later revised its ruling
25
abused its discretion in admitting this other-acts evidence at trial,
the admission of this evidence was harmless error. See Tiraboschi
v. State, 312 Ga. 198, 200 (2) (862 SE2d 276) (2021) (“We need not
decide whether this evidence was erroneously admitted, because any
such error was harmless.”).
At trial, the State presented evidence of the Irwin County
incidents through several witnesses. Prior to the witnesses’
testimony and in the trial court’s final charge to the jury, the trial
court gave the jury an instruction limiting the jury’s use of this
evidence. The limiting instruction and final charge instructed the
jury that evidence of these two incidents was being “admitted for a
limited purpose” and “may be considered by the jury for the sole
issue or purposes for which the evidence [was] limited and not for
any other purpose.” The trial court further instructed that the
limited purposes for which this evidence was being admitted by the
State was to show “intent,” “plan and preparation of the defendant
after testimony was admitted about this incident at trial, stating on the record
that Rule 413 did not apply.
26
in committing the offenses,” and “motive of the defendant in
committing the offenses.” The trial court directed the jury that it
was “permitted to consider that evidence only in so far as it may
relate to those issues and not for any other purpose.”
Assuming without deciding that the trial court erroneously
admitted the Irwin County incidents for the stated purposes under
Rule 404 (b), “evidentiary errors require reversal only if they harm
a defendant’s substantial rights.” Pritchett v. State, 314 Ga. 767,
778 (2) (c) (879 SE2d 436) (2022) (citation and punctuation omitted).
“The test for determining whether a nonconstitutional evidentiary
error was harmless is whether it is highly probable that the error
did not contribute to the verdict.” Tiraboschi, 312 Ga. at 200 (2). In
reaching that determination, “we review the record de novo, and we
weigh the evidence as we would expect reasonable jurors to have
done,” as opposed to “viewing it all in the light most favorable to the
jury’s verdict.” Edwards v. State, 308 Ga. 176, 184 (3) (839 SE2d
599) (2020) (citation and punctuation omitted).
“[A]s to the central issue at trial,” the evidence of Rivera’s guilt
27
was strong. Tiraboschi, 312 Ga. at 200 (2). See also Edwards, 308
Ga. at 184 (3). First, there was physical evidence supporting the
State’s theory that Rivera was the perpetrator of the crimes against
Parker. At trial, the medical examiner testified that Parker was
raped shortly before her death, and subsequent DNA testing
revealed that Rivera’s DNA was a match for the DNA found on the
vaginal swabs in Parker’s rape kit. Additionally, a witness testified
at trial that she saw a car that looked like Rivera’s car parked at the
same nightclub where she dropped Parker off on the evening of May
17, 1996—the night Parker was last seen alive. And law
enforcement discovered tire tracks consistent with the tire
impressions from Rivera’s car at the crime scene—a location with
which Rivera admitted he was familiar, having previously picked up
paychecks at this location from his former employer, Johnny
Edmonson.
“We recognize that the admission of this other-acts evidence
carried a risk of prejudice” to Rivera, particularly since the State did
not demonstrate that he was charged with any crimes arising from
28
the Irwin County incidents and “because the State chose to
emphasize” the Irwin County incidents again during closing
arguments. Pritchett, 314 Ga. at 780 (2) (c). See also Hood v. State,
299 Ga. 95, 105 (786 SE2d 648) (noting that the danger of admitting
extrinsic offense evidence is greater where “the extrinsic activity
was not the subject of a prior conviction” because “the jury may feel
that the defendant should be punished for that activity even if he is
not guilty of the offense charged”). However, “in light of the
substantial evidence” of Rivera’s guilt in this case and “after
conducting a de novo review and weighing the evidence as
reasonable jurors would, we conclude that it is highly probable that
[any] error in admitting the other-acts evidence” was harmless and
“did not contribute to” the jury’s guilty verdicts against Rivera.
Pritchett, 314 Ga. at 780 (2) (c). See also Tiraboschi, 312 Ga. at 201
(2) (“In sum, the jury heard compelling evidence of Appellant’s guilt,
and it is highly probable that the admission of the evidence relating
to his prior convictions did not contribute to the jury’s guilty
verdict.”).
29
4. Therefore, we affirm Rivera’s felony murder conviction,
reverse his rape conviction, and remand this case to the trial court
for resentencing in accordance with this opinion.
Judgment affirmed in part and reversed in part, and case
remanded. All the Justices concur.
30