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Docket Number

No. A09A0146.

Attorney(S)

Billy M. Grantham, for appellant. Joseph K. Mulholland, District Attorney, William J. Hunter, Assistant District Attorney, for appellee.

Judges

BERNES, Judge.

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Smart Summary

Miller v. The State, No. A09A0146 (Ga. Ct. App. July 8, 2009) — Summary of Opinion

Factual and Procedural Background

Jimmy Travis Miller was convicted of manufacturing methamphetamine in violation of OCGA § 16-13-30(b) following a trial in Decatur Superior Court before Judge Cato. On March 8, 2006, Decatur County sheriff's deputies, having obtained Miller's consent, searched Miller's residence and his truck. In Miller's truck officers found several large trash bags containing numerous items: hypodermic needles, cold packs, Coleman fuel, unrolled lithium batteries, an empty digital scale box, empty blister packs, empty 120-count Actifed packs containing pseudoephedrine, surgical tubing, red lye, and paper towels wrapped in electrical tape that contained a white substance. The Georgia Bureau of Investigation Crime Lab tested the white substance and found it positive for methamphetamine.

Miller testified at trial, admitting ownership of the truck and conceding that many of the discovered items could be his trash. He also asserted that other individuals had access to the truck and that some items (needles) related to his dog-breeding activities, but he could not account for missing vaccination vials. The State introduced Miller's prior felony conviction for possession of methamphetamine with intent to distribute to impeach his credibility under OCGA § 24-9-84.1(a)(2).

On appeal to the Court of Appeals of Georgia, Miller challenged (1) the general sufficiency of the evidence supporting his manufacturing conviction, (2) the sufficiency of evidence regarding venue, (3) the trial court's jury instruction on possession as a lesser included offense, and (4) the admission of his prior conviction for impeachment purposes. The Court of Appeals conditionally affirmed the conviction and remanded for further proceedings on the limited issue of the trial court's express findings under OCGA § 24-9-84.1(a)(2).

Legal Issues Presented

Whether the evidence, viewed in the light most favorable to the verdict, was sufficient to support a conviction for manufacturing methamphetamine under OCGA § 16-13-30(b).
Whether the State proved venue (that the crime occurred in Decatur County) beyond a reasonable doubt.
Whether giving the jury an instruction on possession of methamphetamine as a lesser included offense to manufacturing was erroneous and, if so, whether any error was harmless.
Whether the trial court erred in admitting Miller's prior felony conviction to impeach his credibility without making express on-the-record findings required by OCGA § 24-9-84.1(a)(2).

Arguments of the Parties

Appellant's Arguments (Miller)

The evidence was insufficient to prove he had manufactured methamphetamine because other persons had access to his truck and could have placed the items there.
The State failed to prove venue beyond a reasonable doubt because the prosecution did not introduce direct evidence locating his residence in Decatur County during its case-in-chief.
The trial court erred by instructing the jury on possession of methamphetamine as a lesser included offense to manufacturing.
The trial court erred by admitting evidence of his prior felony drug conviction because the prior conviction lacked sufficient probative value compared to its prejudicial effect, and the court failed to make the required balancing findings on the record under OCGA § 24-9-84.1(a)(2).

Appellee's Position (The State)

The State presented circumstantial evidence showing items commonly used to manufacture methamphetamine in combination and the laboratory confirmation that the recovered white substance tested positive for methamphetamine, which, when viewed in the light most favorable to the verdict, supported a guilty verdict for manufacturing.
Venue could be established by circumstantial evidence and the totality of proof available to the State; the officers who conducted the search were Decatur County deputies and the evidence was recovered from Miller's truck at his residence.
The State introduced Miller's prior felony drug conviction to impeach his credibility under OCGA § 24-9-84.1(a)(2) after Miller elected to testify at trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bryan v. State, 271 Ga. App. 60 (2004)	Standard of review on appeal from a criminal conviction: construe evidence in the light most favorable to the verdict; defendant no longer presumed innocent.	Used to frame the sufficiency review standard applied to the manufacturing conviction.
Jackson v. Virginia, 443 U.S. 307 (1979)	Federal standard that a conviction must be supported by evidence such that any rational trier of fact could find guilt beyond a reasonable doubt.	Invoked as the controlling standard for sufficiency of the evidence analysis.
Ogburn v. State, 296 Ga. App. 254 (2009)	Example of cases where circumstantial evidence supported a finding of drug manufacture.	Cited as an example supporting the conclusion that the combination of items in this case could support a finding of manufacture.
Kohlmeier v. State, 289 Ga. App. 709 (2008)	Another example supporting circumstantial inferences of drug manufacture from paraphernalia and related items.	Used as further authority that the discovered items, in combination, can permit a rational factfinder to find manufacture.
Davis v. State, 272 Ga. App. 33 (2005)	Owner/driver of a vehicle is presumed to possess contraband found in the vehicle; presumption is rebuttable by evidence of equal access and is for the trier of fact to resolve.	Applied to reject Miller's equal-access defense where his testimony was inconsistent and the jury could disbelieve it.
Jones v. State, 272 Ga. 900 (2000)	Venue in criminal cases must be proved beyond a reasonable doubt; venue may be established by direct or circumstantial evidence.	Quoted to explain venue is a jurisdictional fact that the State must prove beyond a reasonable doubt and may do so circumstantially.
Chapman v. State, 275 Ga. 314 (2002)	On appeal, evidence must be viewed in the light most favorable to the verdict to determine sufficiency to prove venue.	Applied to the venue analysis and cited for appellate review approach; quoted concerning the ease of proving venue.
In the Interest of B. R., 289 Ga. App. 6 (2007)	Holding that the mere fact that responding officers are employed by a county sheriff's department is insufficient alone to prove venue in that county.	Relied on to reject the proposition that the deputies' employment, standing alone, established venue.
King v. State, 271 Ga. App. 384 (2005)	Similarly holds that officers' county employment alone cannot serve as exclusive proof of venue.	Used to support the conclusion that the State's case-in-chief lacked direct proof of the residence location absent additional evidence.
Thompson v. State, 277 Ga. 102 (2003)	Venue may be established by circumstantial evidence when viewed in the light most favorable to the verdict.	Reinforced the court's conclusion that circumstantial evidence combined with Miller's testimony could establish venue.
Lane v. State, 177 Ga. App. 553 (1986)	Harmless-error principle applied where a defendant was given a jury instruction on a lesser included offense but convicted of the greater offense.	Applied to conclude any error in charging possession as a lesser included offense was harmless because Miller was convicted of manufacturing.
Galbreath v. State, 213 Ga. App. 80 (1994)	Possession of a drug is not a necessary element of knowingly manufacturing that drug; possession as a lesser included offense may not be adjusted to the evidence of manufacturing.	Noted in a footnote regarding the relationship between possession and manufacturing and relevance to lesser-included instruction.
Quiroz v. State, 291 Ga. App. 423 (2008)	When admitting a defendant's prior felony conviction under OCGA § 24-9-84.1(a)(2), the trial court must balance probative value against prejudicial effect and make express findings on the record considering factors such as the type and date of the conviction and witness credibility.	Held controlling on the requirement for express on-the-record balancing findings; the court remanded because the trial court failed to make those findings.
Hall v. State, 230 Ga. App. 741 (1998)	Error in admitting similar transaction evidence (or analogous failures) is subject to harmless-error review and does not automatically require a new trial.	Quoted to explain that the failure to make express findings is analogous to similar-transaction hearings and is subject to harmless-error analysis.
Clarke v. State, 241 Ga. App. 186 (1999)	Discusses standards for harmless-error review in the context of admissibility errors.	Cited for the proposition that such admissibility errors are subject to harmless-error scrutiny rather than mandating an automatic new trial.
Taylor v. State, 262 Ga. 584 (1992)	"Pipeline" rule: a new rule of criminal procedure will be applied retroactively to cases then on direct review or not yet final.	Applied (via the pipeline rule) to give the later-decided Quiroz retroactive effect to Miller's case even though Quiroz was decided after trial.
Green v. State, 279 Ga. 455 (2005)	Further support for retroactive application principles of new procedural rules.	Cited alongside Taylor to support retroactive application of Quiroz.
Taylor v. State, 285 Ga. App. 697 (2007)	Another appellate decision applying retroactivity principles for procedural rules.	Also cited in connection with giving the Quiroz rule retroactive application under the pipeline rule.

Court's Reasoning and Analysis

The Court addressed each of Miller's claims in turn, applying established standards and the facts adduced at trial.

1. Sufficiency of the Evidence to Support Manufacturing Conviction

The court began with the established sufficiency standard: on appeal the evidence must be construed in the light most favorable to the jury's verdict and the court must determine whether any rational trier of fact could have found guilt beyond a reasonable doubt (Bryan; Jackson v. Virginia). Viewing the evidence in that manner, the court noted the combination of items recovered from Miller's truck — items that the officers testified were commonly used to manufacture methamphetamine — along with laboratory confirmation that the recovered white substance tested positive for methamphetamine. Although many items were common household items, the court observed that in combination and in their condition they constituted evidence of manufacture under OCGA §§ 16-13-30(b) and 16-13-26(3)(B), and comparable authority (e.g., Ogburn; Kohlmeier) supported that inference.

Miller's defense that others had access to the truck did not defeat the sufficiency finding. The court applied Davis v. State: an owner/driver is presumptively in possession of contraband found in the vehicle but this presumption can be rebutted by evidence of equal access. Because the only evidence of equal access was Miller's own testimony, and that testimony was internally inconsistent and conflicted with other evidence (e.g., Miller admitted many items could be his trash, gave inconsistent timelines about when the bags were present, and could not account for missing vaccination vials he referenced), the jury was authorized to disbelieve Miller and reject his equal-access claim. The court held the evidence sufficient to permit a rational jury to find manufacturing beyond a reasonable doubt.

2. Venue

The court reiterated the constitutional and statutory requirement that venue be proved beyond a reasonable doubt but noted that venue may be established by direct or circumstantial evidence (Jones; Chapman). It observed that, in the State's case-in-chief, no witness identified the specific location of Miller's residence; and that the mere fact the officers were Decatur County deputies was insufficient, standing alone, to prove venue (In the Interest of B.R.; King). However, the court found that Miller's own testimony—that he was from Bainbridge and had lived in Decatur County his life except during his marriage and that he was again living in Bainbridge at the time of the search—supplied sufficient proof when combined with the circumstantial evidence to permit the jury to conclude the search and seizure occurred in Decatur County. Thus, the court concluded venue had been established.

3. Jury Instruction on Possession as a Lesser Included Offense

The court acknowledged Miller's contention that the instruction was erroneous but, without deciding whether the instruction itself was legally correct, held that any potential error was harmless because Miller was convicted of the greater offense (manufacture). The court cited Lane v. State to support the proposition that giving an instruction on a lesser included offense when the jury convicts of the greater offense is harmless error.

4. Admission of Prior Conviction for Impeachment

The State admitted evidence of Miller's prior felony drug conviction after Miller elected to testify in his own defense, invoking OCGA § 24-9-84.1(a)(2). That statute permits admission of prior convictions that meet specified criteria if the court determines on the record that the probative value substantially outweighs the prejudicial effect. The trial court admitted the conviction but did not make express on-the-record findings balancing probative value and prejudice.

The Court relied on Quiroz v. State, which required express findings on the record when admitting prior felony convictions under OCGA § 24-9-84.1(a)(2), and held that absent such findings appellate review is hampered. Although Quiroz postdated Miller's trial, the Court applied it retroactively under the "pipeline" rule (Taylor; Green; Taylor (Ga. App.)). Because the trial court failed to make the requisite express findings, the Court remanded for the trial court to enter on-the-record findings applying the Quiroz balancing factors (e.g., kind and date of the felony, importance of witness's credibility).

The Court further explained that the failure to make explicit findings is analogous to other admissibility errors that are subject to harmless-error review (Hall; Clarke), rather than automatically requiring reversal. But because Miller's conviction rested primarily on circumstantial evidence, the Court could not conclude that any error in admitting the prior conviction was harmless beyond a reasonable doubt. Accordingly, the Court remanded for the trial court to make express findings: if the trial court finds the conviction inadmissible, a new trial will be required; if it finds admissible, the conviction stands subject to appellate review for abuse of discretion (Quiroz; Hall).

Holding and Implications

Judgment conditionally affirmed and case remanded with direction.

Direct effect on the parties:

The Court upheld the jury's finding on the sufficiency of the evidence for the manufacturing conviction and determined that venue was adequately established by the combination of circumstantial evidence and Miller's testimony.
Any error in giving a jury instruction on possession as a lesser included offense was deemed harmless because Miller was convicted of the greater offense (manufacturing).
The Court remanded to the trial court to make express on-the-record findings under OCGA § 24-9-84.1(a)(2) and Quiroz regarding whether the probative value of Miller's prior felony conviction substantially outweighed its prejudicial effect. If the trial court determines the prior conviction was inadmissible, a new trial will follow; if admissible, the conviction will stand subject to appellate review for abuse of discretion.

Broader implications:

The opinion enforces the requirement that trial courts make express, on-the-record balancing findings before admitting prior felony convictions for impeachment under OCGA § 24-9-84.1(a)(2), applying the Quiroz rule retroactively to cases on direct review.
No new legal principle beyond application and clarification of existing Georgia authorities was announced; the decision applies existing precedent to the facts and remands for compliance with established procedural safeguards.

Disposition: Judgment conditionally affirmed; case remanded with direction for the trial court to make express findings under OCGA § 24-9-84.1(a)(2) consistent with this opinion. Smith, P. J., and Phipps, J., concurred.

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MILLER v. THE STATE.

BERNES, Judge.

Jimmy Travis Miller appeals his conviction for manufacturing methamphetamine in violation of OCGA § 16-13-30 (b). He challenges the general sufficiency of the evidence supporting his conviction and particularly challenges the sufficiency of the evidence regarding venue. He also contends that the trial court erred in instructing the jury on possession of methamphetamine as a lesser included offense and in admitting evidence of his prior conviction. For the reasons that follow, we conditionally affirm Miller's conviction.

1. On appeal from a criminal conviction, we construe the evidence in the light most favorable to the jury's verdict and the defendant no longer enjoys a presumption of innocence. Bryan v. State, 271 Ga. App. 60 (1) ( 608 SE2d 648) (2004). We do not weigh the evidence or determine witness credibility, but determine only whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 ( 99 SC 2781, 61 LE2d 560) (1979); Bryan, 271 Ga. App. at 60 (1).

So viewed, the evidence showed that on March 8, 2006, Decatur County sheriff's deputies went to Miller's residence and gained Miller's consent to search his residence and his truck. During the search of Miller's truck, the officers found several large trash bags that contained hypodermic needles, cold packs, Coleman fuel, unrolled lithium batteries, an empty digital scale box, empty blister packs, empty 120-pill count Actifed medicine packs that contained pseudoephedrine, surgical tubing, red lye, and paper towels containing a white substance that were wrapped in electrical tape. The officers testified at trial that the discovered items, in combination, were commonly used to manufacture methamphetamine and were "[r]emnants of a methamphetamine lab." The paper towels containing the white substance were forwarded to the Georgia Bureau of Investigation Crime Lab for testing. The tests showed that the white substance was positive for methamphetamine.

Miller testified in his own defense at trial. Miller admitted that he owned the truck where the drug evidence was found and further admitted that many of the discovered items could be his trash.

Although much of the evidence consisted of common household items, in combination and in their existing condition, the items presented evidence of the manufacture of methamphetamine, a Schedule II controlled substance. Based on this evidence, any rational trier of fact could have found that Miller had manufactured methamphetamine. See OCGA §§ 16-13-30 (b), 16-13-26 (3) (B); Bryan, 271 Ga. App. at 61-62 (1). See, e.g., Ogburn v. State, 296 Ga. App. 254, 255 (1) (a), (b) ( 674 SE2d 101) (2009); Kohlmeier v. State, 289 Ga. App. 709, 710-713 (1) (a), (b) ( 658 SE2d 261) (2008).

Miller nonetheless contends that he was entitled to an acquittal because other persons had access to his truck where the evidence was discovered. His contention, however, affords no basis for reversal.

An owner or driver of an automobile, in the absence of any circumstances to the contrary, is presumed to have possession and control of contraband found in the automobile. See Davis v. State, 272 Ga. App. 33, 33-34 ( 611 SE2d 710) (2005). This presumption can be rebutted by evidence that persons other than the owner or driver had equal access to contraband found in the vehicle. Id. "Whether evidence of equal access is sufficient to rebut an inference of possession is a question for the trier of fact." Id. at 34.

In this case, the only evidence of equal access was provided by Miller whose testimony was inconsistent in several respects and conflicted with certain evidence presented by the state. For instance, while Miller denied ownership of the trash bags and claimed that four other individuals had access to his truck during the relevant time period, he nevertheless acknowledged that many of the items found in the bags could be his trash, including the hypodermic needles that he had admitted using. Miller also testified that at least two of the trash bags found in his truck had been at the residence since January 2006, even though the officers had gone to Miller's property on the afternoon prior to the search and seizure and had not seen the trash bags until they returned on the following day. Furthermore, although Miller claimed that he had been treated for a medical condition and was not capable of loading the trash or driving, he also testified that he had driven the truck on several occasions prior to the officers' seizure of the trash bags containing the drug evidence.

Miller claimed that he was a dog breeder and had used the needles to administer dog vaccinations. But, no vials from the purported vaccinations were found among the items in the trash bags and Miller could not explain this discrepancy.

As such, the jury was authorized to reject Miller's equal access claim as lacking credibility and to find that the inference of Miller's possession had not been sufficiently rebutted. The jury's findings of fact and determinations of witness credibility in this regard provide no basis for reversal on appeal. See Davis, 272 Ga. App. at 33-34.

2. Miller further contends that the state failed to prove venue beyond a reasonable doubt. Again, we discern no error.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. . . . The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence.

(Punctuation and footnotes omitted.) Jones v. State, 272 Ga. 900, 901-903 (2) ( 537 SE2d 80) (2000). On appeal, we view the evidence in the light most favorable to the verdict and determine whether the evidence was sufficient to permit a finding that the crime was committed in the county where the defendant was indicted. See Chapman v. State, 275 Ga. 314, 317 (4) ( 565 SE2d 442) (2002).

This case was indicted and tried in Decatur County. The evidence establishing Miller's drug offense was collected during the search of his truck parked at his residence. Yet, in its case-in-chief, the state failed to produce any evidence whatsoever as to the location of Miller's residence. That the officers who conducted the search were employed by the Decatur County Sheriff's Office was, standing alone, insufficient evidence of venue. See In the Interest of B. R., 289 Ga. App. 6, 8-9 (2) ( 656 SE2d 172) (2007) (concluding that the state failed to prove venue since the fact that the responding officers were employed by the county sheriff's department cannot serve as the exclusive proof that the crimes occurred in that county); King v. State, 271 Ga. App. 384, 385-387 (1) ( 609 SE2d 725) (2005) (same).

Our appellate courts have repeatedly expressed frustration with the state's failure to prove venue in criminal cases. "Proving venue is a simple exercise that generally requires the asking of one question. In light of the ease with which venue can be proved, it is difficult to understand why the appellate courts are repeatedly faced with this issue." Chapman, 275 Ga. at 317 (4), n. 4. See also In the Interest of B. R., 289 Ga. App. 6, 10 ( 656 SE2d 172) (2007) (Blackburn, P. J., Smith, P. J., and Miller, J., concurring fully and specially).

Significantly, however, Miller's own trial testimony provided sufficient proof of venue in this case. Miller testified that he was originally from Bainbridge in Decatur County, Georgia and had lived in Decatur County all his life, except during the 21 years of his marriage. Miller further stated that at the time of the search and seizure of the evidence, he was divorced and was again living in Bainbridge, Georgia. Based upon this evidence, the jury was authorized to conclude that Miller's residence in Bainbridge was located in Decatur County.

Accordingly, the circumstantial evidence presented by the state, combined with Miller's testimony identifying the location of his residence, was sufficient to establish venue in this case. See Chapman, 275 Ga. at 317-318 (4); Thompson v. State, 277 Ga. 102, 104 (3) ( 586 SE2d 231) (2003).

3. Miller also argues that the trial court erred in instructing the jury on possession of methamphetamine as a lesser included offense. Pretermitting whether the trial court erred in giving the jury instruction, Miller was not convicted of drug possession. Rather, he was convicted of manufacturing methamphetamine as charged. Therefore, any error in giving the instruction was harmless. See Lane v. State, 177 Ga. App. 553, 554 (2) ( 340 SE2d 228) (1986).

See Galbreath v. State, 213 Ga. App. 80, 81-82 (1) ( 443 SE2d 664) (1994) (concluding that possession of marijuana is not a necessary element of the crime of knowingly manufacturing marijuana, and a request to charge on drug possession as a lesser included offense to the crime of manufacturing is not adjusted to the evidence).

4. Lastly, Miller contends that the trial court erred in admitting evidence of his prior conviction of possession of methamphetamine with intent to distribute. At trial, Miller chose to testify in his defense. The evidence of his prior felony drug conviction was introduced by the state to impeach his credibility as a witness pursuant to OCGA § 24-9-84.1 (a) (2). Miller had presented a motion in limine to have his prior conviction excluded from the trial evidence. After considering Miller's arguments, the trial court ruled that evidence of the prior conviction was admissible.

OCGA § 24-9-84.1 (a) (2) establishes guidelines for the use of a prior conviction to impeach the credibility of a defendant who testifies at a trial or hearing. The statute provides, in pertinent part, that

[e]vidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant.

Miller argues that his prior conviction had no probative value and therefore should not have been admitted under the statute. The trial court, however, failed to make an express ruling on the record as to whether the probative value of the evidence substantially outweighed its prejudicial effect. Consequently, we are precluded from addressing the substantive merits of Miller's claim, and instead, we must remand this case to the trial court for further post-trial consideration consistent with this opinion. See Quiroz v. State, 291 Ga. App. 423, 427-429 (4) ( 662 SE2d 235) (2008); Hall v. State, 230 Ga. App. 741, 743 ( 497 SE2d 603) (1998).

In Quiroz, this court held that when ruling upon the admissibility of a defendant's prior felony conviction under OCGA § 24-9-84.1 (a) (2), the trial court is required to balance the probity of a prior felony conviction against its prejudicial effect, considering factors including "the kind of felony involved, the date of the conviction, and the importance of the witness's credibility." Quiroz, 291 Ga. App. at 428 (4). When no express findings have been made as to this balancing test, this court can only guess whether the trial court has made the requisite determination. We therefore require that the trial court's findings be made expressly on the record to ensure compliance with the procedural safeguards provided under the statute. Id.

We note that at the time of Miller's trial in May 2007, there had been no Georgia authority construing OCGA § 24-9-84.1 (a) (2) as requiring express findings on the record. Quiroz was later decided in May 2008, almost one year after the trial of this case. Quiroz, 291 Ga. App. 423. Nevertheless, the Quiroz ruling shall be given retroactive application in this case under the "pipeline" rule, providing that "a new rule of criminal procedure . . . will be applied to all cases then on direct review or not yet final." Taylor v. State, 262 Ga. 584, 586 (3) ( 422 SE2d 430) (1992). See also Green v. State, 279 Ga. 455, 456 (2) ( 614 SE2d 751) (2005); Taylor v. State, 285 Ga. App. 697, 703 (4) ( 647 SE2d 381) (2007).

The trial court's error in failing to make express findings regarding the admissibility of the prior conviction is analogous with error in failing to properly conduct a hearing regarding the admissibility of similar transaction evidence. In this context, the error is subject to scrutiny for harmless error and a new trial is not automatically required. See Hall, 230 Ga. App. at 743. See also Clarke v. State, 241 Ga. App. 186, 188-189 (1) (a) ( 526 SE2d 395) (1999). But, because Miller's conviction was primarily based upon circumstantial evidence, we cannot say that overwhelming evidence established Miller's guilt so as to make the admissibility of the prior conviction harmless. Under these circumstances, we are unable to conclude whether a new trial is required at this time. Instead, we must remand this case to the trial court for the entry of express findings on the record as to whether the probative value of Miller's prior conviction substantially outweighed its prejudicial effect, considering the factors set forth in Quiroz. See Hall, 230 Ga. App. at 743. If the trial court determines that the prior conviction was inadmissible after engaging in the balancing test required under OCGA § 24-9-84.1 (a) (2), then a new trial will be required. But, if the trial court determines that the prior conviction was admissible, a new trial will not be mandated, subject to appellate review for an abuse of discretion. See Quiroz, 291 Ga. App. at 429 (4); Hall, 230 Ga. App. at 743.

Judgment conditionally affirmed, and case remanded with direction. Smith, P. J., and Phipps, J., concur.