307 Ga. 651 FINAL COPY S19A1427. SWIMS v. THE STATE.

BETHEL, Justice.

A Walker County jury found Jesse Lee Swims guilty of malice murder and other crimes in connection with the death of Deborah “Debbie” Leigh Clemenson.1 Swims appeals, contending that the trial court erred in denying his motion for mistrial. For the reasons stated below, we affirm.

1. Viewed in the light most favorable to the jury’s verdict, the

Hamrick testified that on the day Clemenson disappeared, he was with Swims and Swims’s sister, Ruby, at Swims’s parents’ house. Hamrick testified that he argued with Ruby and that she left her parents’ house. After Ruby left, Swims told Hamrick he had a cooler of beer and some marijuana and that Hamrick could spend the day with him. Swims and Hamrick drove around town smoking marijuana and drinking beer in Hamrick’s car, an older model, two- tone Thunderbird. After driving around for a while, Swims asked Hamrick to take him to a girl’s house that Swims knew so he could try to “get me some,” referring to sex. Hamrick and Swims drove to a pool hall that was across from Clemenson’s house. Swims went inside the pool hall and returned to the car with Clemenson. Swims and Clemenson previously knew each other from watching the Super Bowl at another individual’s house. Swims, Hamrick, and Clemenson then continued to ride around town while smoking and drinking.

Eventually, Swims suggested they drive up to John’s Mountain. Once there, Swims directed Hamrick down a long dirt road until they reached a barricade. At the barricade, Hamrick stopped the vehicle, and Swims got back in the front passenger’s seat. Swims told Hamrick that he had been in the back seat with Clemenson trying “to do things with her.” Swims told Hamrick that Clemenson was too nervous to do anything while Hamrick was in the car and that Swims was going to take Clemenson outside with him to “try to get some.” Swims handed Hamrick some marijuana and told him to roll some joints to have ready when Swims returned.

After about 15 to 20 minutes, Swims returned to the vehicle without Clemenson. Swims had Clemenson’s clothes balled up.

Hamrick asked why Clemenson was not with Swims, and Swims responded that he took Clemenson in the woods and tried to “get some from [her]” and when she refused, Swims raped and killed her.

Swims held a knife to Hamrick’s throat and told him if he said anything, Swims would kill him or have him killed.

Swims told Hamrick to drive to the nearby Conasauga River so Swims could dispose of the clothes and the knife. As they approached the bridge over the river, other vehicles were around, so Swims told Hamrick to go down the road and turn around. On the way back over the bridge, Swims threw the clothes and knife out of the vehicle and into the river.

On July 17, 1999, military personnel located a partially decomposed body in a section of the Chattahoochee National Forest within Walker County. The body was unclothed other than shoes and socks. The cause of death was determined to be “homicide or violence associated with a rectangular perforated injury of the sternum not otherwise specified.” At first, the identity of the body was unknown. However, the shoes found on the body were consistent with a pair of shoes Clemenson had borrowed from a friend. Fiber testing revealed that fibers taken from the shoes matched fibers of the floorboard carpeting of Hamrick’s vehicle. A DNA comparison between samples from the body and samples from Clemenson’s toothbrush confirmed that the body was Clemenson’s.

In August 1999, investigators approached Hamrick about the case while he was in West Virginia, where he, Swims, and Ruby had moved sometime after the events on John’s Mountain.2 After speaking with Hamrick, investigators located Swims in West

Virginia and spoke with Swims about the case. Investigators showed Swims the reward poster for the case, but Swims acted surprised and stated he did not know Clemenson.

Initially, Swims told investigators that he had been with Hamrick on only two occasions, one evening partying on John’s Mountain, and then going swimming at Carters Lake together the next day. After further questioning, Swims told investigators there was another instance when he was with Hamrick. Swims stated that Hamrick had been in a fight with his girlfriend, Swims’s sister Ruby, and that Hamrick and Swims went first to the house of Swims’s boss to drink beer and smoke marijuana, then to Swims’s cousin’s house, and finally back to the house of Swims’s boss. The investigator testified at trial that Swims’s last story was similar to one of the stories Hamrick initially told the officers.

In 2005, while awaiting trial in the Walker County Jail for Clemenson’s murder, Swims spoke to Chelsey Owens, another inmate in the jail, about attempting to escape incarceration. Owens testified that Swims wanted him to hold a corporal at the jail while Swims stabbed the corporal a few times so that the staff at the jail would let them leave. Knowing Swims was charged with a girl’s murder, Owens asked Swims if he killed that girl, to which Swims responded, “why do you think I want out of here so bad.”

Although Swims has not challenged the sufficiency of the evidence, it is our customary practice to review the sufficiency of the evidence in murder cases, and we have done so here. After reviewing the record of Swims’s trial, we conclude that the evidence presented against him was sufficient to authorize a rational jury to find beyond a reasonable doubt that Swims was guilty of malice murder. See Jackson v. Virginia, 443 U. S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979); see also Brown v. State, 302 Ga. 454, 456 (1) (b) (807 SE2d 369) (2017) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (citation and punctuation omitted)).

2. In his only enumeration of error, Swims contends that the trial court erred in denying his motion for mistrial after his character was improperly placed into evidence during Chelsey Owens’s testimony. When the State asked Owens if Swims offered any reasoning for why he wanted to escape, Owens responded: I asked [Swims] why would he do that, I said, why would you want to do that, [Swims] said, he had told me because they did not honor his fast and speedy trial. He was looking at getting off on a technicality because they didn’t honor that. He didn’t have that for his defense. He said he was doing time, he had a lot of time in West Virginia that he wasn’t never going to get out.

Swims’s trial counsel immediately asked to approach the bench and moved for a mistrial. The trial court judge overruled Swims’s objection and denied his motion. The State resumed its direct examination of Owens, who testified that Swims provided another possible motivation for attempting an escape — that Swims had murdered Clemenson: “I asked him, did y’all kill that child and he told me . . . why do you think I want out of here so bad.”

“Generally, evidence of an independent offense committed by a defendant is inadmissible and irrelevant in a trial for a different crime, unless the evidence is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he has a criminal character.” (Citation and punctuation omitted.) Rivera v. State, 295 Ga. 380, 382 (2) (761 SE2d 30) (2014). See also former OCGA § 24-2-2.3 Whether “to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” (Citation and punctuation omitted.) Hartsfield v. State, 294 Ga. 883, 886 (2) (757 SE2d 90) (2014). Typically, a trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety. (Citation and punctuation omitted.) Smith v. State, 302 Ga. 699, 702 (3) (808 SE2d 692) (2017).

“[A] passing reference to a defendant’s incarceration does not place his character in evidence.” Lewis v. State, 287 Ga. 210, 212 (3) (695 SE2d 224) (2010). Furthermore, Owens’s passing reference to Swims’s incarceration in West Virginia for an unstated crime was

Therefore, the trial court did not abuse its discretion.

On appeal, Swims also argues that the trial court abused its discretion by not sua sponte issuing curative instructions to the jury in lieu of granting a mistrial. However, Swims did not request such instructions after the denial of his motion. “Failure to give an

Miller v. State, 295 Ga. 769, 776 (3) (a) (764 SE2d 135) (2014).

Judgment affirmed. All the Justices concur.

DECIDED JANUARY 13, 2020.

Murder. Walker Superior Court. Before Judge Thompson.

Jennifer E. Hildebrand, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant Attorney General, for appellee.