(Code 1981, §24-4-404, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Character evidence; crimes or other acts, Fed. R. Evid. 404.
Notice of prosecution's intent to present evidence of similar transactions, Ga. S. Ct. R. 31.3.
Law reviews.- For article, "Admissibility of Evidence of a Party's Prior Intemperate Habits on the Issue of Intoxication at the Time of An Accident," see 17 Mercer L. Rev. 347 (1966). For annual survey of law on evidence, see 62 Mercer L. Rev. 125 (2010). For annual survey on evidence law, see 66 Mercer L. Rev. 81 (2014). For annual survey of evidence law, see 67 Mercer L. Rev. 63 (2015). For annual survey on criminal law, see 68 Mercer L. Rev. 93 (2016). For annual survey on evidence law, see 68 Mercer L. Rev. 1019 (2017). For annual survey on evidence law, see 69 Mercer L. Rev. 101 (2017). For article, "Legitimizing Character Evidence," see 68 Emory L.J. 443 (2019). For annual survey on evidence, see 70 Mercer L. Rev. 1023 (2019). For annual survey on evidence, see 71 Mercer L. Rev. 103 (2019). For note discussing res gestae, see 3 Ga. B.J. 69 (1940).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3680, former Code 1868, § 3704, former Code 1873, § 3757, former Code 1882, § 3757, former Civil Code 1895, § 5159, former Penal Code 1895, § 993, former Civil Code 1910, § 5745, former Penal Code 1910, § 1019, former Code 1933, § 38-202, and former O.C.G.A. § 24-2-2 are included in the annotations for this Code section.
Construction with O.C.G.A. § 24-4-413. - Provisions of O.C.G.A. § 24-4-413(a) supersede the provisions of O.C.G.A. § 24-4-404(b) in sexual assault cases. O.C.G.A. § 24-4-413(a) is the more specific statute regarding admission of prior acts of child molestation and is, therefore, controlling over O.C.G.A. § 24-4-404(b). Steele v. State, 337 Ga. App. 562, 788 S.E.2d 145 (2016).
Character defined.
- Character in legal parlance has the same meaning as reputation; that is, what one's fellows say about one. Simpkins v. State, 149 Ga. App. 763, 256 S.E.2d 63 (1979) (decided under former Code 1933, § 38-202).
Character evidence restricted to general reputation.
- Admissibility of character evidence depends upon the general reputation of the person in the community, not what the witness knows personally about the subject. Smith v. State, 153 Ga. App. 519, 265 S.E.2d 852 (1980) (decided under former Code 1933, § 38-202).
Use of character evidence.
- Evidence as to character is irrelevant and inadmissible unless the evidence is used to show the character of the witness for veracity, or intended specifically to be used in the impeachment of witnesses for bad character, or equally to rebut an attempt at impeachment by a showing of good character. Edwards v. Simpson, 123 Ga. App. 44, 179 S.E.2d 266 (1970) (decided under former Code 1933, § 38-202).
Evidence regarding the character of a defendant is generally inadmissible unless the defendant puts defendant's character in issue, and evidence of independent offenses committed by a defendant is generally inadmissible due to the inherently prejudicial nature and minimal probative value of the evidence. Henderson v. State, 204 Ga. App. 884, 420 S.E.2d 813 (1992) (decided under former O.C.G.A. § 24-2-2).
General character of parties and especially their conduct in other transactions are irrelevant matters unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct. Vaughn v. Metro. Prop. & Cas. Ins. Co., 260 Ga. App. 573, 580 S.E.2d 323 (2003) (decided under former O.C.G.A. § 24-2-2).
When character is relevant, it must be the general character and not one specific act. Stanley v. Hudson, 78 Ga. App. 834, 52 S.E.2d 567 (1949) (decided under former Code 1933, § 38-202); Taylor v. Marsh, 107 Ga. App. 575, 130 S.E.2d 770 (1963);(decided under former Code 1933, § 38-202).
Introduction of character by defendant.
- Defendant may offer proof of defendant's good character as a relevant fact tending to make defendant's guilt doubtful. Rentfrow v. State, 123 Ga. 539, 51 S.E. 596 (1905) (decided under former Penal Code 1895, § 993); Ware v. State, 18 Ga. App. 107, 89 S.E. 155 (1916);(decided under former Penal Code 1910, § 1019).
Introduction of character by prosecution.
- State cannot put the general character of the defendant in a criminal case in issue. Moulder v. State, 9 Ga. App. 438, 71 S.E. 682 (1911) (decided under former Penal Code 1910, § 1019).
When defendant puts the defendant's character in issue, it is the right of the state to show that the character is bad. Strickland v. State, 12 Ga. App. 640, 77 S.E. 1070 (1913) (decided under former Penal Code 1910, § 1019).
Trial court properly allowed a prosecutor to question defendant about any prior positive drug screens as the purpose was to impeach defendant's unsolicited assertion that the drug screen that was the basis of defendant's prosecution was defendant's only positive drug screen; accordingly, although character and conduct in other transactions is generally irrelevant unless defendant first puts defendant's character in issue, pursuant to former O.C.G.A. §§ 24-2-2 and24-9-20(b) (see now O.C.G.A. §§ 24-4-404,24-4-405 and24-5-506), evidence may be used for impeachment purposes in order to disprove facts testified to by defendant pursuant to former O.C.G.A. § 24-9-82 (see now O.C.G.A. § 24-6-621). Lockaby v. State, 265 Ga. App. 527, 594 S.E.2d 729 (2004) (decided under former O.C.G.A. § 24-2-2).
Questioning of witness about potential offer by defendant to pay for testimony.
- Trial court properly denied a motion for mistrial based on the prosecution's question to a witness as to whether a defendant offered money to the witness to testify on the defendant's behalf because evidence that the defendant attempted to influence the witness's testimony could be offered to show consciousness of guilt, and in any event, any harm was mitigated by the fact that the witness answered in the negative. Branton v. State, 292 Ga. App. 104, 663 S.E.2d 414 (2008), cert. denied, No. S08C1771, 2008 Ga. LEXIS 873 (Ga. 2008) (decided under former O.C.G.A. § 24-2-2).
Admitting evidence of independent offenses.
- Evidence of independent offenses may be admitted if the state introduces the evidence for a proper purpose, if there is sufficient evidence to establish that the defendant actually committed the independent offenses, and if there is sufficient similarity between the charged offense and the independent offenses. Henderson v. State, 204 Ga. App. 884, 420 S.E.2d 813 (1992) (decided under former O.C.G.A. § 24-2-2).
Transactions of a similar nature or like character to those charged in the petition in which the defendant had engaged previously to the one in question are admissible in evidence. Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240, 155 S.E. 1 (1930) (decided under former Civil Code 1910, § 5745).
Similar acts are admissible in evidence, if committed or proposed at or about the same time, and when the same motive reasonably may be supposed to exist, with a view to establish the intent of the defendant in respect to the matters charged against the defendant in the petition; this is so in transactions of similar nature or like character in which the defendant had engaged previously to the one in question. Tapley v. Youmans, 95 Ga. App. 161, 97 S.E.2d 365 (1957) (decided under former Code 1933, § 38-202).
Similar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time and place. Genins v. Geiger, 144 Ga. App. 244, 240 S.E.2d 745 (1977), cert. denied, 444 U.S. 991, 100 S. Ct. 521, 62 L. Ed. 2d 420 (1979) (decided under former Code 1933, § 38-202).
Offense with no factual similarity not admissible.
- While evidence of the defendant's prior drug offenses was relevant at trial for felony possession of more than one ounce of marijuana and admissible in light of the extensive limiting instructions regarding other acts given to the jury, which reduced the risk of undue prejudice, the trial court erred in admitting evidence of the defendant's prior arrest and conviction for family violence because there was no factual similarity between the battery offense and the charged offense. Watkins v. State, 353 Ga. App. 606, 839 S.E.2d 41 (2020).
Cross-examination as to specific acts or transactions.
- When the good character of a defendant is put in issue, evidence as to general bad character with respect to the particular trait may be shown in rebuttal; but in so doing it is not permissible to prove specific acts, except on crossexamination for the purpose of testing the knowledge of the defendant's witnesses, and except for the purpose of impeaching knowingly false statements made by the defendant personally to the jury or by the defendant's witnesses on cross-examination. Mimbs v. State, 189 Ga. 189, 5 S.E.2d 770 (1939) (decided under former Code 1933, § 38-202); Johnson v. State, 84 Ga. App. 745, 67 S.E.2d 246 (1951); Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758 (decided under former Code 1933, § 38-202); 218 Ga. 193, 126 S.E.2d 785 (1962); Horton v. State, 228 Ga. 690, 187 S.E.2d 677 (1972), aff'd in part and rev'd in part, Cowan v. State, 130 Ga. App. 320, 203 S.E.2d 311 (1973) (decided under former Code 1933, § 38-202); Compher v. Georgia Waste Sys., 155 Ga. App. 819, 273 S.E.2d 200 (1980); Curry v. State, 155 Ga. App. 829, 273 S.E.2d 411 (1980) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
Transactions with third parties.
- It was error for the court to permit the defendant, over objection, to be interrogated on cross-examination about a transaction between the defendant and a third party, which was entirely separate and distinct. Head v. John Deere Plow Co., 71 Ga. App. 276, 30 S.E.2d 662 (1944) (decided under former Code 1933, § 38-202); Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318 (1968); Dennis v. Dennis, 227 Ga. 164, 179 S.E.2d 238 (1971) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
"Mug shots" and other court appearances.
- Admission in evidence of a "mug shot" of the defendant does not inject the defendant's character into evidence nor does the mere presence of the defendant on trial in some other court without more inject the defendant's character into evidence. Creamer v. State, 229 Ga. 704, 194 S.E.2d 73 (1972) (decided under former Code 1933, § 38-202); Tankersley v. State, 155 Ga. App. 917, 273 S.E.2d 862 (1980); Jones v. State, 156 Ga. App. 56, 274 S.E.2d 99 (1980) (decided under former Code 1933, § 38-202); Price v. State, 159 Ga. App. 662, 284 S.E.2d 676 (1981);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
Bolstering of testimony.
- It is permissible to strengthen a witness's testimony by evidence of matters showing its consistency and reasonableness, and tending to indicate that the facts probably were as stated by the witness. Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318 (1968) (decided under former Code 1933, § 38-202).
Evidence of a compromise is inherently harmful in spite of anything a judge might say in instructing a jury as to the weight to be given such evidence, and to allow testimony concerning evidence of compromise deprives a defendant of a fair and impartial trial. Boyd v. State, 146 Ga. App. 359, 246 S.E.2d 396 (1978), overruled on other grounds, Sabel v. State, 250 Ga. 640, 300 S.E.2d 663 (1983) (decided under former Code 1933, § 38-202).
Similar transaction hearing sufficient despite only summary of testimony.
- Similar transaction hearing was sufficient even though, instead of calling a witness to testify, the state merely proffered a summary of a witness's testimony; the state introduced no hearsay evidence during trial, and the defendant had ample opportunity to cross-examine the similar transaction witness at trial. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-2-2).
State may mention similar transaction evidence in opening statement.
- State did not commit error by referencing the 2003 similar transaction evidence in the state's opening statement because, even if the defendant had properly preserved that objection for appellate review, the defendant had not provided any authority for the contention that a prosecutor could not refer in opening statement to similar transaction evidence which had already been ruled admissible. Nguyen v. State, 330 Ga. App. 812, 769 S.E.2d 558 (2015).
Standard of review.
- Absent an abuse of discretion, a trial court's ruling as to the admissibility of similar transaction evidence will not be disturbed. Hostetler v. State, 261 Ga. App. 237, 582 S.E.2d 197 (2003) (decided under former O.C.G.A. § 24-2-2).
Appellate court will not disturb a trial court's determination that similar transaction evidence is admissible absent an abuse of discretion. Cain v. State, 268 Ga. App. 39, 601 S.E.2d 415 (2004) (decided under former O.C.G.A. § 24-2-2).
Cited in Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018); Cunningham v. State, 304 Ga. 789, 822 S.E.2d 281 (2018); Luckie v. Berry, 305 Ga. 684, 827 S.E.2d 644 (2019); Grier v. State, 305 Ga. 882, 828 S.E.2d 304 (2019); Allen v. State, 307 Ga. 707, 838 S.E.2d 301 (2020); In the Interest of P. T., 353 Ga. App. 511, 838 S.E.2d 596 (2020); DeLoach v. State, 308 Ga. 283, 840 S.E.2d 396 (2020); State v. Voyles, Ga. App. , 846 S.E.2d 170 (2020); Shaum v. State, 355 Ga. App. 513, 844 S.E.2d 863 (2020); Redding v. State, Ga. , 844 S.E.2d 725 (2020); Scott v. State, Ga. , S.E.2d (Sept. 8, 2020).
Civil Cases
Question established credibility.
- Testimony was not prejudicial to the plaintiff when defense counsel asked the defendants' expert witness whether the expert had participated in a particular religious program and to describe the program. This question served only to help introduce the witness to the jury and to contribute to establishment of the expert's credibility; it did not present a basis for reversing the jury's verdict. Brannen v. Prince, 204 Ga. App. 866, 421 S.E.2d 76 (1992), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009) (decided under former O.C.G.A. § 24-2-2).
Similar transaction evidence on failure to pay.
- In a complaint alleging failure to pay pursuant to a contract for accounting services, it was not an abuse of discretion to allow testimony which stated that the charges of other accountants and attorneys who worked for the defendant on the same project were approximately twice as much as their original estimates and that the defendant had failed to pay when the plaintiffs claimed that their charges were also double the amount originally estimated due to delays caused by the defendant in light of the similarity of the transactions involved and the issue of bad faith. Candler v. Davis & Upchurch, 204 Ga. App. 167, 419 S.E.2d 69 (1992) (decided under former O.C.G.A. § 24-2-2).
In an action involving an insurer's attempt to cancel a policy for nonpayment of a premium, evidence of the insured's history of tardy payment of bills was properly excluded. State Farm Mut. Auto. Ins. Co. v. Drury, 222 Ga. App. 196, 474 S.E.2d 64 (1996) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in ruling that a widow could not introduce evidence of an insurer's conduct towards insureds in two prior cases in which the court refused to honor incontestability clauses to demonstrate bad faith because the trial court was entitled to find that the prior cases were materially dissimilar from the widow's case, given that neither of those cases involved coverage under the group policy at issue and the revisions to the certificate of insurance forms made that year. Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 718 S.E.2d 343 (2011), cert. denied, No. S12C0461, 2012 Ga. LEXIS 305 (Ga. 2012) (decided under former O.C.G.A. § 24-2-2).
Evidence of defendant's character is admissible in fraud cases. German Am. Mut. Life Ass'n v. Farley, 102 Ga. 720, 29 S.E. 615 (1897) (decided under former Civil Code 1895, § 5159); Mays v. Mays, 153 Ga. 835, 113 S.E. 154 (1922); 33 Ga. App. 335, 126 S.E. 299 (1924), aff'd on other grounds, Wimberly v. Toney, 175 Ga. 416, 165 S.E. 257 (1932) (decided under former Civil Code 1910, § 5745); Lawler v. Life Ins. Co. of Ga., 90 Ga. App. 481, 83 S.E.2d 281; 211 Ga. 246, 85 S.E.2d 1 (1954) (decided under former Civil Code 1910, § 5745); Kilgore v. United States, 467 F.2d 22 (5th Cir. 1972);rev'd on other grounds,(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
While evidence of the insured's general good character is relevant and admissible in a suit on the insured's policy of insurance, since the insurer defends on the ground that the insured perpetrated a fraud on the insurer in procuring the insured's policy; yet, in a case where such fraud is shown by witnesses who swear positively to facts sustaining the defense of fraud, the jury is not authorized to find from evidence of the insured's good character alone that the plaintiff has shown plaintiff's right to recover by a preponderance of evidence. Life Ins. Co. v. Lawler, 211 Ga. 246, 85 S.E.2d 1 (1954) (decided under former Code 1933, § 38-202).
Other transactions showing fraud.
- Evidence that parties charged with having been engaged in a fraudulent scheme to defraud laborers and materialmen in a building transaction had proposed, or had been engaged in, similar fraudulent schemes, is admissible to show fraudulent intent in the transaction in controversy, if it is shown that the other transactions were fraudulent and that the transactions were so connected in point of time and otherwise with the one in issue as to make it apparent that all were proposed or carried out in pursuance of a common fraudulent purpose. Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240, 155 S.E. 1 (1930) (decided under former Civil Code 1910, § 5745).
Other transactions showing fraud are admissible to show intent. Tapley v. Youmans, 95 Ga. App. 161, 97 S.E.2d 365 (1957) (decided under former Code 1933, § 38-202).
In an action for fraud involving a construction contract, evidence of unrelated contract disputes that defendant had purportedly evincing fraudulent intent was admissible. John W. Rooker & Assocs., Inc. v. Wilen Mfg. Co., 211 Ga. App. 519, 439 S.E.2d 740 (1993) (decided under former O.C.G.A. § 24-2-2).
Character irrelevant in negligence cases.
- In actions arising out of automobile collisions, the issue is the negligence or nonnegligence of the operator at the time and place of the event, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties. Grannemann v. Salley, 95 Ga. App. 778, 99 S.E.2d 338 (1957) (decided under former Code 1933, § 38-202).
Reputation of a defendant or defendant's employee for exercising care in the defendant's actions is not admissible to show that due care was exercised on the occasion in question. Georgia Ports Auth. v. Mitsubishi Int'l Corp., 156 Ga. App. 304, 274 S.E.2d 699 (1980) (decided under former Code 1933, § 38-202).
In an action arising out of an auto accident, evidence of deceased's prior drug and alcohol use and prior conduct was irrelevant to the question of liability and the issue of damages. Taylor v. RaceTrac Petroleum, Inc., 238 Ga. App. 761, 519 S.E.2d 282 (1999) (decided under former O.C.G.A. § 24-2-2).
Evidence of quality of work from other employees.
- In a suit to recover commissions advanced to an agent prior to termination of the agent's employment, testimony from the agent's other employers that the service the agent had rendered the agent's customers was not valuable, was properly excluded; the agent's conduct in transactions involving other employers was not relevant, and would unduly prejudice the jury. Duggan Ins. Agency, Inc. v. Altschul, 195 Ga. App. 458, 394 S.E.2d 119 (1990) (decided under former O.C.G.A. § 24-2-2).
Evidence physician failed board exam irrelevant.
- In a medical malpractice case, the court's refusal to allow evidence that a physician did not pass the physician's board examination was not an abuse of discretion. Williams v. Memorial Medical Ctr., Inc., 218 Ga. App. 107, 460 S.E.2d 558 (1995) (decided under former O.C.G.A. § 24-2-2).
References to prior "case" against a medical malpractice defendant did not require mistrial.
- In a medical malpractice case, although a patient's counsel's two brief references to another "case" in cross-examination of the defense expert were arguably improper under O.C.G.A. § 24-4-404(a), the references did not explicitly impute any prior negligence to the doctor or indicate that the doctor had previously been sued; the references were insufficient to fatally infect the verdict and require a mistrial. Southwestern Emergency Physicians, P.C. v. Quinney, 347 Ga. App. 410, 819 S.E.2d 696 (2018).
Evidence on lack of CPA license.
- Trial court did not err in precluding the corporation's purported impeachment evidence about why the investor had not obtained the investor's CPA license as the evidence was irrelevant to the issues being tried. Kothari v. Patel, 262 Ga. App. 168, 585 S.E.2d 97 (2003) (decided under former O.C.G.A. § 24-2-2).
Evidence in legal malpractice cases.
- Rules of the State Bar of Georgia, while not determinative of the standard of care applicable in a legal malpractice case, may be considered along with other facts and circumstances to determine whether an attorney treated a client with the requisite degree of skill and care. Watkins & Watkins, P.C. v. Williams, 238 Ga. App. 646, 518 S.E.2d 704 (1999) (decided under former O.C.G.A. § 24-2-2).
Outdated financial affidavit was relevant to claim that a spouse hid or dissipated assets.
- In a divorce proceeding, it was not an abuse of discretion to reject the relevancy objection of a spouse to the admission of a financial affidavit that the spouse prepared several months before the trial on the ground that the affidavit was prejudicial because the affidavit made it appear that the spouse had attempted to hide assets; the relevancy objection was properly rejected because it was the position of the other spouse that the spouse had hidden or dissipated assets during the pendency of the divorce proceedings. Moxley v. Moxley, 281 Ga. 326, 638 S.E.2d 284 (2006) (decided under former O.C.G.A. § 24-2-2).
Evidence of similar acts in negligence cases.
- Allegation that the defendant in a personal injury suit was aware that other persons had slipped and fallen under substantially the same circumstances was not subject to special demurrer as immaterial and irrelevant matter. Belk-Matthews Co. of Macon v. Thompson, 94 Ga. App. 331, 94 S.E.2d 516 (1956) (decided under former Code 1933, § 38-202).
It is a general rule that in a suit for negligence, evidence of similar acts or omissions on other and different occasions is not admissible. Wright v. Dilbeck, 122 Ga. App. 214, 176 S.E.2d 715 (1970) (decided under former Code 1933, § 38-202);(but see CSX Transp. v. Trism Specialized Carriers, 9 F. Supp. 2d 1374 (N.D. Ga. 1998) (decided under former O.C.G.A. § 24-2-2)).
As a general rule in all negligence actions, evidence of similar acts or omissions is not admissible; however, if proof of a similar accident or similar method of acting tends to prove some fact of the case on trial, the testimony falls within an exception - such as to show knowledge of a defect or causation, or to rebut a contention that it was impossible for the accident to happen in the manner claimed, or to show the prior existence of a dangerous condition or hazardous situation. Gunthorpe v. Daniels, 150 Ga. App. 113, 257 S.E.2d 199 (1979) (decided under former Code 1933, § 38-202).
In an action alleging that the owner of an apartment complex breached a duty to keep the premises safe, the trial court did not abuse the court's discretion when the court refused to admit evidence of a carjacking that occurred near the complex because the carjacking occurred on a public street and in a location of unknown proximity to the complex. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135 (2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. 2012) (decided under former O.C.G.A. § 24-2-2).
Evidence of absence of similar acts in negligence cases.
- If evidence of prior similar acts of negligence is not admissible, it follows that evidence of the absence of any such prior acts is equally inadmissible. Williams v. Naidu, 168 Ga. App. 539, 309 S.E.2d 686 (1983) (decided under former O.C.G.A. § 24-2-2).
Evidence of injuries sustained by other parties on prior occasions may be admitted for the purpose of showing that the defendant had been given notice of a dangerous condition and was thus negligent in allowing the condition to continue. Norfolk S. Ry. v. Thompson, 208 Ga. App. 240, 430 S.E.2d 371 (1993) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior impairment from injuries admissible.
- Trial court properly denied a nurse's motion in limine to exclude evidence of injuries that the nurse sustained in a prior car accident pursuant to former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) in an action against a medical practice, arising from alleged injuries that the nurse sustained when an office door opened and hit the nurse in the face and head, as the injuries in the doorway accident were related to the prior injuries because the nurse claimed a permanent impairment to the nurse's ability to work in both situations; the nurse's claim that the permanent impairment claims from the injuries were not substantially similar went to the weight of the evidence and not to the admissibility. Kilday v. Kennestone Physicians Ctr., L.P., 296 Ga. App. 818, 676 S.E.2d 271 (2009) (decided under former O.C.G.A. § 24-2-2).
Evidence of subsequent careless occurrence excluded.
- Testimony of a police officer, regarding the subsequent occurrence of a dog breaking loose and running into a bite-victim's yard, should have been excluded since the only logical purpose of such testimony was to raise the inference that if the dog owners were careless in their management of the dog on one occasion, the owners were probably careless on the occasion in question. Torrance v. Brennan, 209 Ga. App. 65, 432 S.E.2d 658 (1993) (decided under former O.C.G.A. § 24-2-2).
In product liability actions, evidence of other incidents involving the product is admissible and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity; without a showing of substantial similarity, the evidence is irrelevant as a matter of law. Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 461 S.E.2d 877 (1995), aff'd, 276 Ga. 226, 476 S.E.2d 565 (1996) (decided under former O.C.G.A. § 24-2-2).
Evidence plaintiff filed prior lawsuit not irrelevant.
- Testimony elicited from plaintiff in a negligence action during cross-examination which showed that plaintiff had been involved in a single lawsuit 22 years prior to trial was not irrelevant or prejudicial because it was not indicative of litigiousness. Wages v. Sibran, Inc., 171 Ga. App. 14, 318 S.E.2d 679 (1984) (decided under former O.C.G.A. § 24-2-2).
Evidence of continuing process.
- Preparation of 125 turkeys was a continuous process which took some time to complete. The jury could properly infer from the evidence showing and tending to show a lack of negligence in the handling of all of the turkeys during the continuance of the undertaking that the same lack of negligence attended the handling of the one turkey by which plaintiffs were injured. Carsten v. Wilkes Supermarket of Gwinnett County, Inc., 181 Ga. App. 834, 353 S.E.2d 922 (1987) (decided under former O.C.G.A. § 24-2-2).
In a wrongful death action against a truck manufacturer based on product liability and negligence, evidence that no truck of the type and design involved had ever been recalled or had been the subject of a regulatory proceeding was relevant and admissible to show that defendant's design and manufacture was not negligent. Browning v. Paccar, Inc., 214 Ga. App. 496, 448 S.E.2d 260 (1994) (decided under former O.C.G.A. § 24-2-2).
Insurer's mishandling of related claim.
- Trial court, in an employee's action against an employer for failure to pay no-fault insurance benefits, properly excluded evidence of the insurer's mishandling of a related workers' compensation claim on the issue of punitive damages. Williams v. Aetna Cas. & Sur. Co., 182 Ga. App. 684, 356 S.E.2d 690 (1987) (decided under former O.C.G.A. § 24-2-2).
Witness's testimony that defendant had a reputation for hurting people was admissible to explain the witness's reason for lying even though it incidentally put the defendant's character in issue. Smith v. State, 165 Ga. App. 669, 302 S.E.2d 414 (1983) (decided under former O.C.G.A. § 24-2-2).
Evidence of severance pay under similar circumstances.
- In a suit to recover severance pay by employee remaining on job until sale of the company was consummated, the trial court did not err in allowing two former employees to testify that those employees had received severance pay upon their voluntary departure from the company after the sale of the corporation. Amax, Inc. v. Fletcher, 166 Ga. App. 789, 305 S.E.2d 601 (1983) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior claims against defendant.
- In an action alleging that defendant jewelry store substituted a flawed diamond in a ring plaintiff brought in to be re-set, the trial court did not err in excluding evidence of prior disputes between defendant and other customers. Ament v. Bennett's Fine Jewelry, 249 Ga. App. 683, 549 S.E.2d 501 (2001) (decided under former O.C.G.A. § 24-2-2).
General partners' (GPs') motion for a new trial was properly denied as evidence of a GP's involvement in a prior suit was properly admitted. The prior suit was relevant to show a course of conduct because the prior suit also involved a breach of a partnership agreement, a breach of fiduciary duty, a nursing home, and accusations that the GP violated the plain language of the partnership agreement by failing to pay the limited partners their preferred returns. Kellett v. Kumar, 281 Ga. App. 120, 635 S.E.2d 310 (2006) (decided under former O.C.G.A. § 24-2-2).
Character evidence was admissible in the following cases.
- See McNabb v. Lockhart & Thomas, 18 Ga. 495 (1855) (reputation of one charged with loss of money) (decided under former Code 1863, § 3680); DuBose v. DuBose, 75 Ga. 753 (1885) (character of spouse charged with cruelty) (decided under former Code 1882, § 3757); McClure v. State Banking Co., 6 Ga. App. 303, 65 S.E. 33 (1909) (character of one accused of forgery) (decided under former Civil Code 1895, § 5159); Georgia Southern & Florida Ry. v. Ransom, 5 Ga. App. 740, 63 S.E. 525 (1909), aff'd on other grounds, 10 Ga. App. 558, 73 S.E. 858 (1912) (character of employee against whom damages were sought for insulting conduct) (decided under former Civil Code 1895, § 5159); Conley v. Conley, 152 Ga. 184, 108 S.E. 777 (1921) (character of spouse charged with adultery) (decided under former Civil Code 1910, § 5745); Dalton v. Jackson, 66 Ga. App. 625, 18 S.E.2d 791 (1942) (character in civil action for rape) (decided under former Code 1933, § 38-202); Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961) (character of spouse charged with cruelty) (decided under former Code 1933, § 38-202); Murray v. Clayton, 151 Ga. App. 720, 261 S.E.2d 455 (1979) (reputation of one for being married) (decided under former Code 1933, § 38-202); Shivers v. Webster, 224 Ga. App. 254, 480 S.E.2d 304 (1997);(action to enforce oral promise) (decided under former O.C.G.A. § 24-2-2).
Admission of character evidence in deprivation proceeding.
- Evidence that a father had emotionally abused and neglected a child by repeatedly beating and threatening to kill the child's mother in the child's presence, along with evidence that the father also repeatedly beat the first wife, was relevant to whether the cause of the child's deprivation was likely to continue under O.C.G.A. § 15-11-94 and was admissible under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405). Davis v. Rathel, 273 Ga. App. 183, 614 S.E.2d 823 (2005) (decided under former O.C.G.A. § 24-2-2).
Evidence that parent missed medical appointments for child.
- Evidence of the mother's missed health care appointments for her child did not relate to her conduct in other transactions, as contemplated by former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), but was probative of causation, and thus, was admissible in the mother's medical malpractice action against the health care providers who reviewed the child's case before the child died. Fulton-DeKalb Hosp. Auth. v. Dawson, 270 Ga. 376, 509 S.E.2d 28 (1998) (decided under former O.C.G.A. § 24-2-2).
Evidence of parent's alleged suicide attempt in custody modification case.
- In ruling on a parent's petition to modify custody, as the trial court made no finding of the existence of family violence under O.C.G.A. § 19-9-3(a)(4), whether the other parent had sought the help of a mental health professional or had attempted to commit suicide many years earlier was not probative of any material issue in the case. Therefore, such evidence was properly excluded. Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009) (decided under former O.C.G.A. § 24-2-2).
Character evidence was inadmissible in the following cases.
- See Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890) (beneficiary's character in insurance case) (decided under former Code 1882, § 3757); Stanley v. Willingham, 93 Ga. App. 421, 91 S.E.2d 791 (1956); Dennis v. Dennis, 227 Ga. 164, 179 S.E.2d 238 (1971) (decided under former Code 1933, § 38-202); Ginsberg v. Termotto, 175 Ga. App. 265, 333 S.E.2d 120 (1985);(evidence from spouse's former divorce) (decided under former Code 1933, § 38-202);(evidence of past good act irrelevant to issue of liability for utility expenses) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior consensual adulterous relationship not admitted.
- Evidence of a dentist's prior consensual adulterous relationship was properly excluded from the evidence as the evidence was irrelevant to a former employee's claim against the dentist for assault and battery and would only have served to impugn the general character of the dentist. Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (2008) (decided under former O.C.G.A. § 24-2-2).
Character evidence is admissible in termination of parental rights cases.
- Evidence of a parent's character is admissible in a termination of parental rights proceeding as the proceeding inherently involves character issues, specifically the parent's ability to provide proper parental care and control; while most civil cases require the factfinder to determine the truth only with regard to the discrete transactions in issue, termination cases require the factfinder to predict a parent's future conduct and ability to parent. Davis v. Rathel, 273 Ga. App. 183, 614 S.E.2d 823 (2005) (decided under former O.C.G.A. § 24-2-2).
Evidence admissible in negligent hiring and retention claim.
- Evidence of a dentist's harassment of other employees and a patient was admissible under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) as to a former employee's claim of negligent hiring and retention because the evidence tended to show that the dental center that hired the dentist should have known that the dentist posed a risk of committing the same type of harassing behavior against the former employee. Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (2008) (decided under former O.C.G.A. § 24-2-2).
Pastor testifying to truthfulness of parties.
- Trial court erred by admitting the testimony of a pastor regarding the reputation for truthfulness of a husband and a wife and that the pastor would believe the husband and the wife under oath because the claims of the husband and wife did not involve the general character of the parties pursuant to former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405); the error was not harmless because the jury's verdict was based in large part upon the jury's determinations regarding the parties' credibility. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011) (decided under former O.C.G.A. § 24-2-2).
Criminal Cases
1. In General
Proper admission of similar transaction evidence requires the state to make three affirmative showings: (1) that the evidence is sought for a proper purpose; (2) that sufficient evidence exists to establish that the accused committed the similar transaction; and (3) that sufficient connection exists between the similar transaction and the crime charged so that proof of the former tends to prove the latter. Rice v. State, 217 Ga. App. 456, 458 S.E.2d 368 (1995) (decided under former O.C.G.A. § 24-2-2).
Test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents, rather, such evidence may be admitted if the evidence is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because the defendant is a man of criminal character; similarity is an important factor in determining the admissibility of the extrinsic crime, however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar. Parnell v. State, 260 Ga. App. 213, 581 S.E.2d 263 (2003) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting similar transaction evidence because all of the crimes occurred in a relatively small area and reflected a similar modus operandi; the crimes were sufficiently similar to the crime against the victim. Alatise v. State, 291 Ga. 428, 728 S.E.2d 592 (2012) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting similar transaction testimony that 15 years before, the defendant had bitten the witness's parent. The evidence was offered to show intent and course of conduct; in both the previous incident and the one for which the defendant was being tried, the defendant bit the party with whom the defendant was fighting, drew blood and inflicted visible injuries, used the tools at hand, and involved multiple other parties; and the trial court did not err in finding that the evidence was more probative than prejudicial despite its age. Dunham v. State, 315 Ga. App. 901, 729 S.E.2d 45 (2012) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in admitting similar transaction evidence because the state introduced the evidence for the purpose of showing defendant's state of mind and course of conduct. Lewis v. State, 317 Ga. App. 218, 735 S.E.2d 1 (2012) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in denying the defendant's motion to sever because the defendant failed to carry the burden of making a clear showing that the joint trial was prejudicial and a denial of due process as evidence of another crime committed by the co-defendant did not directly implicate the defendant and the trial court gave appropriate limiting instructions, indicating that the similar transaction evidence could be considered only as to the co-defendant. Brooks v. State, 332 Ga. App. 396, 772 S.E.2d 838 (2015), cert. denied, No. S15C1548, 2015 Ga. LEXIS 573 (Ga. 2015).
Trial court did not err in admitting evidence of a prior incident involving an attempted rape to show intent given the significant similarities in the crimes including evidence that in both cases the defendant went to a place intending to steal and at some point in the process used a deadly weapon to assault the victim and pulled down the victim's underwear but did not complete a rape. Kirby v. State, 304 Ga. 472, 819 S.E.2d 468 (2018).
By placing intent at issue by claiming at trial that the defendant's delusions completely negated criminal intent, the state needed evidence that the defendant acted with the intent to commit the crimes of murder and possession of a firearm; thus, the trial court did not abuse the court's discretion in admitting evidence of a prior New York crime since, as to both crimes, the defendant used a handgun to assault people that the defendant perceived had committed an offense against the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257 (2019).
Trial court did not abuse the court's discretion by allowing the admission of evidence regarding the defendant's prior drug possession arrest because the evidence of prior drug activity was highly probative of intent to sell a controlled substance for which the defendant was on trial and the prior act of drug possession happened while the defendant was driving a car in the same area where the sale of the methamphetamine during the first buy occurred. Moton v. State, 351 Ga. App. 789, 833 S.E.2d 171 (2019).
Trial court did not abuse the court's discretion in admitting the two prior acts of child molestation against the defendant especially given the strong presumption in favor of admissibility; the defendant's prior acts against two other women when they were young girls were relevant and probative regarding the defendant's intent and propensity to commit the charged crimes against the victim as there was no showing either on direct or cross-examination that the witnesses' memories were at issue. Sturgis v. State, Ga. App. , 842 S.E.2d 82 (2020).
Trial court did not err in admitting evidence of prior difficulties between the defendant and the victim because the evidence demonstrated the lengthy history of the animosity between the two and, therefore, shed further light on what may have motivated the defendant to commit the two shootings and the evidence demonstrated the nature of the relationship between the defendant and the victim. Sherrod v. State, 355 Ga. App. 441, 844 S.E.2d 508 (2020).
Section not applicable to intrinsic evidence.
- Nurse's testimony that the defendant told the nurse, when being admitted to the hospital, that the defendant had smoked marijuana earlier that day was not subject to an objection under O.C.G.A. § 24-4-404(b) because it was intrinsic evidence. Gibbs v. State, 340 Ga. App. 723, 798 S.E.2d 308 (2017), aff'd, 303 Ga. 681, 813 S.E.2d 393 (2018).
Trial court properly admitted the testimony of two witnesses because evidence that the defendant was engaged in the business of dealing drugs was intrinsic to the crimes with which the defendant was charged; that the defendant's drug dealing had slowed was relevant to understanding the defendant's motive to attempt a robbery of the victim; and that the defendant had sold drugs to both witnesses was an integral and natural part of their accounts of the circumstances surrounding the shooting. Priester v. State, Ga. , 845 S.E.2d 683 (2020).
Evidence of other crimes part of same series of transactions admissible.
- Trial court did not err in admitting evidence of two other acts because the crimes on trial and the other acts committed a few hours later were part of the same series of transactions, evidence of the other acts completed the story of the crimes on trial, and the other acts were inextricably intertwined with the crimes on trial; thus, the evidence was intrinsic. Parham v. State, 355 Ga. App. 720, 845 S.E.2d 689 (2020).
Trial counsel was not ineffective for failing to object to the admission of the defendant's alleged prior bad acts because evidence that the defendant physically abused the babysitter could have explained why the babysitter did not report the defendant's child molestation to police; and the evidence involving the defendant's treatment of the babysitter was admissible as intrinsic evidence as that evidence pertained to the chain of events in the case and was linked by time and circumstances with the charged offenses because the statement of one of the children to the child's mother that the babysitter was going to call the police immediately led to the children's outcry to their mother; thus, the evidence was not barred by O.C.G.A. § 24-4-404. Espinosa v. State, 352 Ga. App. 698, 834 S.E.2d 558 (2019).
When the defendant was convicted of felony murder and aggravated assault in connection with the shooting death of the victim, the defendant's brother-in-law, the evidence regarding the prior incident in which the defendant hit and pushed the defendant's sister was admissible as intrinsic evidence because the evidence explained why the victim and the defendant's sister were persistent with their requests that the defendant leave, and why the victim followed the defendant outside of the home to ensure that the defendant left; and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Clark v. State, 306 Ga. 367, 829 S.E.2d 306 (2019), cert. denied, 2020 U.S. LEXIS 1059, 206 L. Ed. 2d 180 (U.S. 2020).
Degree of similarity that is required.
- When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity; all that is required is that the incidents are sufficiently similar such that proof of the earlier event helps prove an element of the later crime. Cain v. State, 268 Ga. App. 39, 601 S.E.2d 415 (2004) (decided under former O.C.G.A. § 24-2-2).
Unlike similar transactions, prior difficulties between the defendant and the victim are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus; hence, evidence of motive, even though not an essential element of a crime, had such great probative value that it outweighed the inherent prejudice of such evidence, even if it incidentally placed the defendant's character in issue. LeBlanc v. State, 283 Ga. App. 434, 641 S.E.2d 646 (2007) (decided under former O.C.G.A. § 24-2-2).
Unfair prejudice must substantially outweigh probative value to exclude evidence.
- After the state filed a notice of intent to present other acts evidence seeking to admit evidence of prior bad acts through the testimony of three witnesses, and the trial court denied the state's motion, the trial court did not apply the correct standard regarding the exclusion of relevant evidence when the court found only that the probative value of the other acts evidence was not outweighed by the danger of unfair prejudice and failed to analyze whether such prejudice substantially outweighed any probative value. State v. Jackson, 351 Ga. App. 675, 832 S.E.2d 654 (2019).
Admission of similar transaction evidence not plain error.
- Although the defendant might have been entitled to a ruling that the 2003 similar transaction evidence be excluded had the defendant made the appropriate motion, the trial court did not commit plain error by admitting the 2003 similar evidence because any error would not have met the second prong of the plain error analysis - that the legal error be clear and obvious - as the relevant issue of using a prior driving under the influence conviction in a current driving under the influence trial was not decided by court of appeals until two months after the defendant's trial. Nguyen v. State, 330 Ga. App. 812, 769 S.E.2d 558 (2015).
Any error was harmless.
- Any error in admitting evidence under O.C.G.A. § 24-4-404(b) was harmless because the state spent a minimal amount of time eliciting evidence concerning a prior incident and there was no contention that the state mentioned or relied upon the incident during the state's closing argument to the jury. Taylor v. State, 306 Ga. 277, 830 S.E.2d 90 (2019).
Any error in the admission of the evidence of the 2012 burglary at trial was harmless because the evidence of the defendant's guilt was strong as the defendant was identified by two eyewitnesses; the defendant's cell phone was found in the bedroom where the victim was shot; and the jury was aware of the prior burglary as the state introduced a certified copy of the defendant's status as a first offender probationer in order to establish certain charges within the indictment. Subar v. State, Ga. , S.E.2d (Sept. 8, 2020).
Evidence of gang activity.
- Sufficient evidence, including expert testimony, supported the appellants' convictions because the evidence established that the appellants were associated with a criminal street gang and that the armed robbery and aggravated assault the appellants engaged in constituted criminal street gang activity and were intended to further the interests of the gang. Lupoe v. State, 300 Ga. 233, 794 S.E.2d 67 (2016).
Trial court did not abuse the court's discretion by admitting evidence of the defendant's alleged membership in a gang because the evidence of gang membership was relevant to and probative of motive based on two witnesses testifying as to the defendant's gang affiliation. Anglin v. State, 302 Ga. 333, 806 S.E.2d 573 (2017).
Because the evidence regarding the defendant's gang affiliation was intrinsic to the crimes charged, completing the story and explaining the defendant's authority within the gang, association with the shooters, and role in the crimes, the trial court did not err in admitting that evidence. Fleming v. State, 306 Ga. 240, 830 S.E.2d 129 (2019).
Harmless error as to victim's gang membership.
- Trial court was not required to exclude the evidence of the victim's motorcycle gang membership as any error was harmless since the appellant admitted to shooting the victim, who was a stranger to the appellant at that moment in time and the evidence also showed that the victim was unarmed; thus, it was highly probable that the admission of the victim's alleged gang affiliation would not have contributed to the jury's verdict on the murder charge. Kilpatrick v. State, 308 Ga. 194, 839 S.E.2d 551 (2020).
Online evidence of gang activity.
- Trial court did not err in denying the defendant's motion for a mistrial after the state introduced into evidence images obtained from the defendant's page on a social media website because that evidence was not improper character evidence; rather, the evidence showed the defendant's association with a gang and was, therefore, vital to the state's case regarding the Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., allegations and also relevant to show the defendant's motive for the murder of a rival gang member. Jackson v. State, 306 Ga. 706, 832 S.E.2d 809 (2019).
Database match of DNA profile admissible.
- Testimony concerning a CODIS database match of the defendant's DNA profile was relevant and admissible because the DNA evidence did not, in and of itself, constitute impermissible character evidence since no reference was made as to why the matching sample was collected or stored and no reference was made linking the defendant's DNA profile to other criminal activity. Scales v. State, 310 Ga. App. 48, 712 S.E.2d 555 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence of another individual's crimes, not defendant's other crimes.
- Trial court did not err in denying the defendant's motion for a mistrial when the investigator provided some context to a discussion thread on the defendant's page on a social media website because the investigator clarified that the victim, not the defendant, was the primary suspect in the December 2014 shooting; and the investigator's testimony regarding the December 2014 shooting was not evidence of the defendant's other crimes. Jackson v. State, 306 Ga. 706, 832 S.E.2d 809 (2019).
Evidence of other crime not generally admissible.
- Testimony as to a crime other than that for which the defendant is being tried is not ordinarily admissible. Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935) (decided under former Code 1933, § 38-202); Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947); Wiggins v. State, 80 Ga. App. 258, 55 S.E.2d 842 (1949) (decided under former Code 1933, § 38-202); Mims v. State, 207 Ga. 118, 60 S.E.2d 373 (1950); Kelley v. State, 98 Ga. App. 324, 105 S.E.2d 798 (1958) (decided under former Code 1933, § 38-202); Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968); Dawson v. State, 120 Ga. App. 242, 170 S.E.2d 45 (1969) (decided under former Code 1933, § 38-202); Nooner v. State, 131 Ga. App. 563, 206 S.E.2d 660 (1974); Perry v. State, 154 Ga. App. 559, 269 S.E.2d 63 (1980), overruled on other grounds, Joiner v. State, 231 Ga. App. 61, 497 S.E.2d 642 (1998) (decided under former Code 1933, § 38-202); State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
Testimony that a defendant engaged in other criminal transactions is prejudicial to the defendant in the case for which the defendant is on trial, not because it has no probative value but because it has too much, as tending to indicate that defendant is of a criminal bent of mind and therefore more likely than the average citizen to have committed the act of which defendant is accused. Cardell v. State, 119 Ga. App. 848, 168 S.E.2d 889 (1969) (decided under former Code 1933, § 38-202).
General rule is that in a criminal trial evidence which in any manner shows or tends to show that the accused has committed other criminal acts is irrelevant and inadmissible as that evidence tends to place the accused's character into evidence. Perry v. State, 158 Ga. App. 349, 280 S.E.2d 390 (1981) (decided under former Code 1933, § 38-202); Bankston v. State, 159 Ga. App. 342, 283 S.E.2d 319 (1981); 454 U.S. 1154, 102 S. Ct. 1026, 71 L. Ed. 2d 311 (1982), cert. denied,(decided under former Code 1933, § 38-202).
Proof of other crimes is never admissible (except in cases when the defendant has personally put the defendant's character in issue) where its chief or only probative value consists in showing that the defendant is, by reason of the defendant's bad character, more likely to have committed the crime than the defendant otherwise would have been. To admit such evidence, it must have relevancy and probative value from some other point of view. Jones v. State, 159 Ga. App. 634, 284 S.E.2d 651 (1981) (decided under former Code 1933, § 38-202).
Trial court did not abuse the court's discretion in admitting evidence of prior and subsequent bad acts because the defendant's prior and subsequent physical abuse of the victim was relevant to showing the type of relationship that existed between them, as well as the defendant's motive, intent, and bent of mind in committing the charged offenses. Futch v. State, 316 Ga. App. 376, 730 S.E.2d 14 (2012) (decided under former O.C.G.A. § 24-2-2).
Admission of other crimes, wrongs, or acts did not constitute plain error.
- Trial court did not commit plain error in admitting evidence that the defendant had, in the weeks leading up to the burglary, followed the victim's 15-year-old sister because the victim's mother personally saw the defendant fleeing the victim's home; the victim's father identified the defendant as the man in the photographs taken by the victim as the defendant prowled around their house before breaking in; the victim identified the defendant to police and at trial as the man who broke into the home and attempted to grab the victim; and there was blood strewn throughout the home and the defendant was observed by several witnesses to be bleeding from cuts on the defendant's arm consistent with those made by glass. Perez v. State, 331 Ga. App. 164, 770 S.E.2d 260 (2015), cert. denied, 2015 Ga. LEXIS 389 (Ga. 2015).
In an armed robbery case, pretermitting whether admission of evidence of the defendant's prior armed robbery conviction amounted to clear or obvious error, the admission of that evidence did not constitute plain error that affected the defendant's substantial rights because the defendant testified and admitted that the defendant pled guilty to the prior charge; although the defendant claimed the defendant acted in self-defense, eyewitnesses testified that they saw no weapons on the victims, saw the defendant rifling the victims' pockets, and heard one of the victims pleading with the defendant not to kill the victim; and the evidence indicated that both victims were shot from behind, undermining the defendant's claim of self-defense. Nations v. State, 303 Ga. 221, 811 S.E.2d 292 (2018).
First defendant could not show plain error in the admission of the second defendant's prior conviction for burglary and possession of tools of a crime as the trial court gave a limiting instruction that the evidence was relevant only to the charges against the second defendant; and the fact that the conviction had been overturned did not preclude the conviction's admission. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, No. S19C1274, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, No. A19C1275, 2019 Ga. LEXIS 890 (Ga. 2019).
Fear of admission of other crimes, wrongs, or acts evidence.- Other act evidence did not have to be excluded because the defendant's constitutional rights were not violated by the defendant having to make a choice whether or not to testify when other crimes, wrongs, or acts that were the basis for another pending case were admitted. Hendrix v. State, Ga. App. , S.E.2d (Aug. 10, 2020).
Exceptions to prohibition of evidence of other crimes.
- When the extraneous crime forms part of the res gestae, or is one of a system of mutually dependent crimes, or is evidence of guilty knowledge, or may bear upon the question of the identity of the accused or articles connected with the offense, or is evidence of prior attempts by the accused to commit the same offense upon the victim as that for which the defendant stands charged, or when the proof of the extraneous crime tends to prove malice, intent, motive, or the like, then its admission as evidence may be proper. Cawthon v. State, 119 Ga. 395, 46 S.E. 897 (1904) (decided under former Penal Code 1895, § 993); Wilson v. State, 173 Ga. 275, 160 S.E. 319 (1931); Williams v. State, 51 Ga. App. 319, 180 S.E. 369 (1935) (decided under former Penal Code 1910, § 1019);(decided under former Code 1933, § 38-202).
When evidence of other criminal transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime or the identity of the perpetrator thereof, such evidence is admissible as an exception to the general rule which makes evidence of other criminal transactions inadmissible under most circumstances. Richards v. State, 157 Ga. App. 601, 278 S.E.2d 63 (1981) (decided under former Code 1933, § 38-202).
Evidence of another crime is admissible when it is part of a course of criminal conduct if it is a part of the res gestae. Whitfield v. State, 159 Ga. App. 398, 283 S.E.2d 627 (1981) (decided under former Code 1933, § 38-202).
Independent crimes are admissible to show motive, intent, plan, identity, bent of mind, or course of conduct. In order for these independent acts to be admissible it must be shown that the defendant was the perpetrator of the independent crime and that there is sufficient similarity of the former independent crime that it tends to prove the latter crime. Weathersby v. State, 262 Ga. 126, 414 S.E.2d 200 (1992) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior overturned conviction admissible.
- Since the second defendant's prior conviction for burglary and possession of tools of a crime was overturned because the trial court should have suppressed the evidence obtained from a GPS device and, without that evidence, there was not enough evidence to support the second defendant's conviction, evidence of the second defendant's prior conviction was admissible in the current case to show intent, knowledge, or absence of mistake as the finding in the prior case did not implicate or call into question the second defendant's intent, absence of mistake, or knowledge of the underlying crimes. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, No. S19C1274, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, No. A19C1275, 2019 Ga. LEXIS 890 (Ga. 2019).
Explanation of why officer investigated defendant.
- Because evidence of defendant's prior crimes was relevant to explain why a police officer investigated defendant, the trial court did not err in admitting the evidence. Smith v. State, 274 Ga. App. 852, 619 S.E.2d 358 (2005) (decided under former O.C.G.A. § 24-2-2).
Admission of sheriff's statements regarding run-ins with law.
- Even if the mention by sheriff's deputies of the defendant's previous run-ins with the law had impermissibly placed the defendant's character at issue during the trial, any such error would have been harmless due to the overwhelming evidence of the defendant's guilt. Furthermore, none of the trial testimony at issue remotely suggested that the defendant had ever been convicted of a past crime. Moore v. State, 310 Ga. App. 106, 712 S.E.2d 126 (2011) (decided under former O.C.G.A. § 24-2-2).
Admission of testimony from special agent.
- Any error in admitting the testimony of a Georgia Bureau of Investigation special agent regarding the circumstances of a 2008 stabbing incident involving the defendant was harmless as the evidence pointed directly to an intentional and malicious killing committed by the defendant rather than one that was committed in self-defense because the defendant did not deny initiating the attack against the victim, another inmate; the defendant did not know if the victim was armed when the defendant decided to attack the victim; and five correctional officers testified that the defendant and the co-defendant were the aggressors, and that the pair cornered the unarmed victim before stabbing the victim a total of 17 times. Rodrigues v. State, 306 Ga. 867, 834 S.E.2d 59 (2019).
Admission of evidence of defendant's prior misdemeanor convictions was harmless error.
- Trial court did not commit reversible error when the court: (1) granted the state's motion in limine prohibiting admission of evidence that another person confessed to the crime; (2) permitted a police officer to explain the officer's conduct under former O.C.G.A. § 24-3-2; and (3) allowed the state to introduce evidence of defendant's prior misdemeanor convictions under former O.C.G.A. §§ 24-2-2 and24-9-20(b) (see now O.C.G.A. §§ 24-4-404,24-4-405, and24-5-506); thus, defendant failed to show that counsel's trial strategies on these issues constituted ineffective assistance of counsel. Harris v. State, 279 Ga. 522, 615 S.E.2d 532 (2005) (decided under former O.C.G.A. § 24-2-2).
Testimony as to circumstances connected with the accused's arrest is admissible even though the testimony incidentally shows the commission of another crime. Humphries v. State, 154 Ga. App. 596, 269 S.E.2d 90 (1980) (decided under former Code 1933, § 38-202); Cleveland v. State, 155 Ga. App. 267, 270 S.E.2d 687 (1980); Woodard v. State, 155 Ga. App. 533, 271 S.E.2d 671 (1980) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
When evidence is relevant for the purpose of showing the circumstances of the arrest, the evidence will not be excluded because the evidence incidentally shows the commission of another crime. Bryan v. State, 157 Ga. App. 635, 278 S.E.2d 177 (1981) (decided under former Code 1933, § 38-202).
Proof of other crime required.
- In order to justify the admission of evidence relating to an independent crime committed by the accused, it is absolutely essential that there should be evidence establishing the fact that the independent crime was committed by the accused, and satisfactorily connecting that crime with the offense for which the accused is indicted. Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940) (decided under former Code 1933, § 38-202); Johnson v. State, 152 Ga. App. 624, 263 S.E.2d 509 (1979); Albert v. State, 152 Ga. App. 708, 263 S.E.2d 685 (1979) (decided under former Code 1933, § 38-202); Sweeny v. State, 152 Ga. App. 765, 264 S.E.2d 260 (1979); Rhodes v. State, 153 Ga. App. 306, 265 S.E.2d 110 (1980) (decided under former Code 1933, § 38-202); Smith v. State, 154 Ga. App. 497, 268 S.E.2d 714 (1980); Haygood v. State, 154 Ga. App. 633, 269 S.E.2d 480 (1980) (decided under former Code 1933, § 38-202); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980); Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980) (decided under former Code 1933, § 38-202); State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
Jury is to receive evidence of the commission of previous crimes only for the purposes specified, and not for the purpose of determining by this alone the guilt of the accused. Fitzgerald v. State, 52 Ga. App. 33, 182 S.E. 77 (1935) (decided under former Code 1933, § 38-202).
Evidence of the commission of independent crimes by the accused may be admitted even when the defendant is acquitted of the other offense. Albert v. State, 152 Ga. App. 708, 263 S.E.2d 685 (1979), conviction reversed, Albert v. Montgomery, 732 F.2d 865 (11th Cir. 1984) (holding that the principle of collateral estoppel prevents the introduction for any purpose of evidence of crime of which a defendant has been acquitted) (decided under former Code 1933, § 38-202).
Although the modification of a defendant's first offender status by the Georgia Crime Information Center was authorized by O.C.G.A. § 42-8-65, it was not a conviction because only the trial court that imposed first offender probation was authorized to revoke that status. Thus, as the defendant was not shown to have been adjudicated guilty of the prior crimes, the state improperly impeached the defendant with evidence of the defendant's first offender record. Lee v. State, 294 Ga. App. 796, 670 S.E.2d 488 (2008) (decided under former O.C.G.A. § 24-2-2).
Criminal confession is not rendered inadmissible because the language used therein indicates that the accused had committed another and separate offense. Dampier v. State, 245 Ga. 882, 268 S.E.2d 349, cert. denied, 449 U.S. 938, 101 S. Ct. 337, 66 L. Ed. 2d 161 (1980) (decided under former Code 1933, § 38-202).
Use of form to pose prohibited question.
- It is error requiring the grant of a new trial for the state to put the plaintiff's character in issue by using a form completed by the plaintiff to ask a question which would otherwise be prohibited, and then introducing into the evidence the defendant's entire past criminal record to impeach the answer to that question. Mikle v. State, 236 Ga. 748, 225 S.E.2d 275 (1976) (decided under former Code 1933, § 38-202).
Res gestae.
- Generally, on a prosecution for a particular crime, evidence of another and distinct crime wholly independent from that for which one is on trial is inadmissible; but there are exceptions to this rule: one is, if the separate crime was committed as a part of the same transaction as that for which the accused is being tried, and forms a part of the res gestae. Bailey v. State, 214 Ga. 409, 105 S.E.2d 320 (1958) (abandonment) (decided under former Code 1933, § 38-202); Williams v. State, 223 Ga. 773, 158 S.E.2d 373 (1967) (rape) (decided under former Code 1933, § 38-202); Blanton v. State, 150 Ga. App. 559, 258 S.E.2d 174 (1979) (prostitution) (decided under former Code 1933, § 38-202); Mosley v. State, 150 Ga. App. 802, 258 S.E.2d 608 (1979) (armed robbery) (decided under former Code 1933, § 38-202); Bradley v. State, 154 Ga. App. 333, 268 S.E.2d 388 (1980) (burglary) (decided under former Code 1933, § 38-202); Hayes v. State, 199 Ga. 251, 34 S.E.2d 97 (1945) (robbery) (decided under former Code 1933, § 38-202); Durham v. State, 243 Ga. 408, 254 S.E.2d 359 (1979) (rape and murder) (decided under former Code 1933, § 38-202); Deshazier v. State, 155 Ga. App. 526, 271 S.E.2d 664 (1980) (vehicular homicide) (decided under former Code 1933, § 38-202).
When transactions involving other crimes and the alleged bad character of the defendant are so connected in time and event as to be part of the same transaction as that for which defendant is being tried, those transaction are admissible as a clear exception to the general rule of inadmissibility of other transactions. Kennedy v. State, 193 Ga. App. 784, 389 S.E.2d 350 (1989) (decided under former O.C.G.A. § 24-2-2).
Since the defendant produced a prison identification card voluntarily, and volunteered information about a prior conviction when a police officer asked if the defendant had a driver's license, the evidence was admissible as part of the res gestae despite its prejudicial nature. Bertholf v. State, 298 Ga. App. 612, 680 S.E.2d 652 (2009) (decided under former O.C.G.A. § 24-2-2).
Connection between crimes in mind of actor.
- To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose the actor intended to accomplish; or it must be necessary to identify the person of the actor, by a connection which shows that the actor who committed the one must have done the other. Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935) (decided under former Code 1933, § 38-202); Andrews v. State, 196 Ga. 84, 26 S.E.2d 263; 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468 (1943), cert. denied, Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955), overruled on other grounds, Kelley v. State, 98 Ga. App. 324, 105 S.E.2d 798 (1958) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
Trial court properly admitted evidence of entering a child's bedroom during a party at another home shortly before the home invasion at the Millstone Manor residence because such evidence was relevant to establish intent as the record showed that intent was a material issue in the case and entering the bedroom in the prior home involved the same mental state as the appellant allegedly had entering the girls' bedroom at the Millstone Manor residence. Cordova v. State, 351 Ga. App. 652, 832 S.E.2d 465 (2019).
Logical connection between crimes.
- When one is on trial charged with the commission of a crime, proof of a distinct and independent offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. Wilson v. State, 173 Ga. 275, 160 S.E. 319 (1931) (decided under former Penal Code 1910, § 1019); Scott v. State, 46 Ga. App. 213, 167 S.E. 210 (1932); McMichen v. State, 62 Ga. App. 50, 7 S.E.2d 749 (1940) (decided under former Penal Code 1910, § 1019); Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940); Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947) (decided under former Code 1933, § 38-202); Fowler v. State, 82 Ga. App. 197, 60 S.E.2d 473 (1950); Gilstrap v. State, 90 Ga. App. 12, 81 S.E.2d 872 (1954) (decided under former Code 1933, § 38-202); Spinks v. State, 92 Ga. App. 878, 90 S.E.2d 590 (1955); Bailey v. State, 214 Ga. 409, 105 S.E.2d 320 (1958) (decided under former Code 1933, § 38-202); Cardell v. State, 119 Ga. App. 848, 168 S.E.2d 889 (1969); Nicholson v. State, 125 Ga. App. 24, 186 S.E.2d 287 (1971) (decided under former Code 1933, § 38-202); Wooten v. State, 125 Ga. App. 635, 188 S.E.2d 409 (1972); Lee v. State, 154 Ga. App. 562, 269 S.E.2d 65 (1980) (decided under former Code 1933, § 38-202); Haygood v. State, 154 Ga. App. 633, 269 S.E.2d 480 (1980); Carroll v. State, 155 Ga. App. 514, 271 S.E.2d 650 (1980) (decided under former Code 1933, § 38-202); Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980); State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980) (decided under former Code 1933, § 38-202); Paxton v. State, 160 Ga. App. 19, 285 S.E.2d 741 (1981);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
Evidence of the commission of one crime is not admissible upon the trial of the defendant for another crime, when the sole purpose is to show that the defendant is guilty of such other crime. Honea v. State, 181 Ga. 40, 181 S.E. 416 (1935) (decided under former Code 1933, § 38-202); Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (decided under former Code 1933, § 38-202); Harrison v. State, 60 Ga. App. 610, 4 S.E.2d 602 (1939);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
If the evidence be so dubious that the judge does not clearly perceive the connection between the crime with which the defendant is charged and another offense, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt. Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940) (decided under former Code 1933, § 38-202).
Mere fact that the defendant has recently committed a crime of the same sort as that for which defendant is on trial establishes no probative connection between the two crimes. Cardell v. State, 119 Ga. App. 848, 168 S.E.2d 889 (1969) (decided under former Code 1933, § 38-202).
Only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried, and crimes which are not similar or which are not logically connected to the crime for which defendant is being tried should be excluded from evidence; proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged. Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981) (decided under former Code 1933, § 38-202).
There are exceptions to the "other crimes" rule when there is sufficient logical connection between the independent crime and the offense charged so that it can be said that proof of the former tends to prove the latter. Perry v. State, 158 Ga. App. 349, 280 S.E.2d 390 (1981) (decided under former Code 1933, § 38-202); Kilgore v. State, 176 Ga. App. 121, 335 S.E.2d 465 (1985);(decided under former O.C.G.A. § 24-2-2).
Logical connection between crimes.
- Trial court properly admitted certain statements made by the defendant during telephone conversations while in custody at a jail because while the statements related to a prior wrong or act which would generally be irrelevant character evidence, the statements indicated the defendant's disdain for law enforcement intervention and a desire to seek revenge; thus, these statements were relevant to show motive and intent in committing the crimes. Summerlin v. State, 339 Ga. App. 148, 793 S.E.2d 477 (2016).
Evidence that defendant possessed cocaine with intent to distribute.
- Defendant's prior criminal conviction for possession of cocaine with intent to distribute was properly admitted because the defendant's current and prior crimes for possession of cocaine with intent to distribute were identical, and the intent required to prove the crimes was necessarily the same; the evidence of the prior crime was highly relevant to the issue of the defendant's unlawful possession of cocaine with the intent to distribute or sell the drugs; the evidence was important to the state's case, thereby enhancing its probative value; and any prejudice resulting from the admission of the prior conviction was mitigated by the limiting instruction the trial court gave when the evidence was introduced and in its final charge to the jury. Burgess v. State, 349 Ga. App. 635, 824 S.E.2d 99 (2019).
Exclusion of extrinsic evidence.
- Trial court did not abuse the court's discretion by excluding the extrinsic evidence of the defendant's other acts for the purposes of showing intent, motive, and knowledge because, while some of the extrinsic acts were relevant in the technical sense, the state's need to have more evidence to prove motive, intent, and knowledge was very low because those issues were obvious to a fact finder after the identity of the perpetrator, which was at issue, was determined. State v. Watson, 354 Ga. App. 263, 840 S.E.2d 641 (2020).
Identity, motive, malice, intent, plan, scheme, bent of mind, and course of conduct.
- While it is the general rule that upon the trial of a person for a criminal offense, other and distinct criminal transactions cannot be given in evidence against the defendant, yet, according to the weight of authority, evidence of other transaction may be received as tending to show motive or intent, when the transactions are so connected in time and similar in their other relations that the same motive may reasonably be imputed to all. Bates v. State, 18 Ga. App. 718, 90 S.E. 481 (1916) (decided under former Penal Code 1910, § 1019); Hales v. State, 250 Ga. 112, 296 S.E.2d 577 (1982);(decided under former O.C.G.A. § 24-2-2).
Proof of another offense is admissible on the trial of a defendant charged with the commission of a crime even though such evidence incidentally places the defendant's character in issue, when evidence of such other crime tends to show identity, motive, malice, intent, plan, scheme, bent of mind, or course of conduct. Wilson v. State, 173 Ga. 275, 160 S.E. 319 (1931) (decided under former Penal Code 1910, § 1019); Scott v. State, 46 Ga. App. 213, 167 S.E. 210 (1932); Phillips v. State, 51 Ga. App. 675, 181 S.E. 233 (1935) (decided under former Penal Code 1910, § 1019); Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935); Fitzgerald v. State, 52 Ga. App. 33, 182 S.E. 77 (1935) (decided under former Code 1933, § 38-202); Gray v. State, 52 Ga. App. 209, 182 S.E. 862 (1935); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (decided under former Code 1933, § 38-202); Bennings v. State, 53 Ga. App. 218, 185 S.E. 370 (1936); Wright v. State, 184 Ga. 62, 190 S.E. 663 (1937) (decided under former Code 1933, § 38-202); Hunter v. State, 188 Ga. 215, 3 S.E.2d 729 (1939); McMichen v. State, 62 Ga. App. 50, 7 S.E.2d 749 (1940) (decided under former Code 1933, § 38-202); Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940); Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944) (decided under former Code 1933, § 38-202); Bell v. State, 71 Ga. App. 430, 31 S.E.2d 109 (1944); Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947) (decided under former Code 1933, § 38-202); Anderson v. State, 206 Ga. 527, 57 S.E.2d 563 (1950); Mims v. State, 207 Ga. 118, 60 S.E.2d 373 (1950) (decided under former Code 1933, § 38-202); Fowler v. State, 82 Ga. App. 197, 60 S.E.2d 473 (1950); Crawford v. State, 211 Ga. 166, 84 S.E.2d 354 (1954) (decided under former Code 1933, § 38-202); Lyles v. State, 215 Ga. 229, 109 S.E.2d 785 (1959); Hargett v. State, 121 Ga. App. 157, 173 S.E.2d 266 (1970) (decided under former Code 1933, § 38-202); Nicholson v. State, 125 Ga. App. 24, 186 S.E.2d 287 (1971); McNeal v. State, 228 Ga. 633, 187 S.E.2d 271 (1972) (decided under former Code 1933, § 38-202); Overton v. State, 230 Ga. 830, 199 S.E.2d 205 (1973); Bloodworth v. State, 233 Ga. 589, 212 S.E.2d 774 (1975) (decided under former Code 1933, § 38-202); Davis v. State, 233 Ga. 638, 212 S.E.2d 814 (1975); Lofton v. State, 137 Ga. App. 323, 223 S.E.2d 727 (decided under former Code 1933, § 38-202); 237 Ga. 275, 227 S.E.2d 327 (1976); Lloyd v. State, 139 Ga. App. 625, 229 S.E.2d 106 (1976) (decided under former Code 1933, § 38-202); Moss v. State, 144 Ga. App. 226, 240 S.E.2d 773 (1977); Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979) (decided under former Code 1933, § 38-202); Simmons v. State, 152 Ga. App. 643, 263 S.E.2d 522 (1979); McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980), cert. denied, 449 U.S. 891, 101 S. Ct. 253, 66 L. Ed. 2d 119 (1980) (decided under former Code 1933, § 38-202); Buffington v. State, 153 Ga. App. 54, 264 S.E.2d 543 (1980); Laws v. State, 153 Ga. App. 166, 264 S.E.2d 700 (1980) (decided under former Code 1933, § 38-202); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980); Pittman v. State, 245 Ga. 453, 265 S.E.2d 592 (1980) (decided under former Code 1933, § 38-202); Smith v. State, 154 Ga. App. 497, 268 S.E.2d 714 (1980); Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980) (decided under former Code 1933, § 38-202); Lee v. State, 154 Ga. App. 562, 269 S.E.2d 65 (1980); Felts v. State, 154 Ga. App. 571, 269 S.E.2d 73 (1980) (decided under former Code 1933, § 38-202); Humphries v. State, 154 Ga. App. 596, 269 S.E.2d 90 (1980); Cleveland v. State, 155 Ga. App. 267, 270 S.E.2d 687 (1980) (decided under former Code 1933, § 38-202); Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980) (decided under former Code 1933, § 38-202); Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980); State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980) (decided under former Code 1933, § 38-202); Wallace v. State, 246 Ga. 738, 273 S.E.2d 143 (1980); Kendrick v. State, 156 Ga. App. 27, 274 S.E.2d 78 (1980) (decided under former Code 1933, § 38-202); Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981); Ballweg v. State, 158 Ga. App. 576, 281 S.E.2d 319 (1981) (decided under former Code 1933, § 38-202); Neal v. State, 159 Ga. App. 450, 283 S.E.2d 671 (1981); Hale v. State, 159 Ga. App. 563, 284 S.E.2d 68 (1981), aff'd,(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
Evidence of other crimes to prove malice, intent, and motive is admissible only when the act of which the accused stands charged would be legal in the absence of those elements. Thomas v. State, 239 Ga. 734, 238 S.E.2d 888 (1977) (decided under former Code 1933, § 38-202).
Evidence of independent crimes will not be admitted unless its relevance to the issues at trial outweighs its prejudicial impact. Tuzman v. State, 145 Ga. App. 761, 244 S.E.2d 882 (1978) (decided under former Code 1933, § 38-202).
Fact that defendant was not arrested and charged with the commission of the independent crimes does not render evidence of the commission of such crimes inadmissible for showing common motive, plan, or scheme. Woodard v. State, 155 Ga. App. 533, 271 S.E.2d 671 (1980) (decided under former Code 1933, § 38-202).
When evidence of other crimes is admitted for the limited purpose of showing identity, plan, motive, scheme, bent of mind, or course of conduct, the other crimes need not be listed in the indictment as defendant is not on trial for those crimes. State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980) (decided under former Code 1933, § 38-202).
When a prior victim testified as to the similarities between the prior victim's encounter with defendant and the victim's, the prior victim's evidence was properly admitted pursuant to Ga. Unif. Super. Ct. R. 31.3(B) to show defendant's bent of mind, intent, and course of conduct; any inconsistencies in the prior victim's testimony affected only the weight and credibility. Williams v. State, 264 Ga. App. 115, 589 S.E.2d 676 (2003) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in finding that similar transaction evidence was relevant and admissible because some of the offenses committed during the coconspirators' crime spree were very similar to the crimes for which the defendant was indicted and, therefore, were relevant and admissible to demonstrate the co-conspirators' modus operandi, identity, bent of mind, and motive; even if some of the separate offenses were insufficiently similar to the indicted offenses, the evidence showed that each of the offenses was an essential part of a continuing criminal enterprise in which the defendant and the coconspirators acted in concert and with a common purpose. Walker v. State, 310 Ga. App. 223, 713 S.E.2d 413 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence of the similar transaction involving an attack by the defendant on an inmate because the state introduced the evidence of the attack on the inmate for the purpose of showing the defendant's course of conduct and bent of mind, which was a legitimate and proper purpose. Johnson v. State, 292 Ga. 22, 733 S.E.2d 736 (2012) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence of the defendant's prior convictions after determining that the convictions were relevant to show intent, knowledge, plan, and motive. Morris v. State, 340 Ga. App. 295, 797 S.E.2d 207 (2017).
Defendant's prior conviction for theft was properly admitted as the conviction was being offered to show motive and, thus, the state was not required to show an overall similarity between the prior offense and the violation of the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Whaley v. State, 343 Ga. App. 701, 808 S.E.2d 88 (2017).
Introduction of certified copy of indictment proper.
- In proving a prior offense for the purpose of proving identity, bent of mind, course of conduct, etc., it is proper to introduce a certified copy of the indictment and the plea or verdict of guilty. Scott v. State, 162 Ga. App. 541, 292 S.E.2d 125 (1982) (decided under former O.C.G.A. § 24-2-2).
Standard for admitting evidence of prior crimes is well-settled: the state must show that: (1) it is introducing evidence of an independent offense or act for an appropriate purpose; (2) there is sufficient evidence to establish that an accused committed the independent offense or act; and (3) there is sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Cain v. State, 268 Ga. App. 39, 601 S.E.2d 415 (2004) (decided under former O.C.G.A. § 24-2-2).
Implicit finding that probative value not outweighed by prejudicial effect.
- Notwithstanding the defendant's waiver of the enumeration of error that the trial court erred by admitting the prior bad acts without undertaking the balancing test, it presented no basis for reversal because the appellate court's review of the record showed that, although the trial court did not make specific findings regarding whether the probative value of the prior crimes was outweighed by its prejudicial impact, the court explicitly referenced the balancing test and noted that the evidence had to satisfy the balancing test rule; thus, by admitting the evidence, the trial court implicitly found that the evidence was admissible pursuant to the balancing test rule. Entwisle v. State, 340 Ga. App. 122, 796 S.E.2d 743 (2017).
Similar transaction evidence admissible.
- Similar transaction evidence was properly admitted to show defendant's state of mind, knowledge, or intent because, in both crimes, defendant worked with an accomplice to force the victims to cooperate by threatening to shoot the victims, and both crimes were committed in a brazen manner during the daytime without any attempt to hide defendant's identity. Pace v. State, 272 Ga. App. 16, 611 S.E.2d 694 (2005) (decided under former O.C.G.A. § 24-2-2).
In a theft by taking case, because intent was put in issue by the defendant, evidence of the other acts that two witnesses paid the defendant money but never received completed cabinets nor a refund of their money was relevant and admissible under O.C.G.A. § 24-4-404(b); furthermore, the probative value of the similar acts was not outweighed by their prejudicial effect pursuant to O.C.G.A. § 24-4-403. Graham v. State, 337 Ga. App. 664, 788 S.E.2d 555 (2016).
Trial court did not abuse the court's discretion in allowing evidence of an argument with a former wife over the defendant's treatment of the victim on the afternoon before the murder as the defendant's behavior a few hours before inflicting the victim's fatal injuries plainly pertained to the chain of events in the case and was linked by time and circumstance with the charged crimes, making the information necessary to complete the story for the jury. Keller v. State, 308 Ga. 492, 842 S.E.2d 22 (2020).
Trial counsel was not ineffective because counsel did object to evidence that, just two weeks before the current incident, the appellant had been involved in a different high-speed chase; and the appellant did not articulate what argument, if any, trial counsel should have made with respect to the evidence of the other acts. Even if trial counsel did perform deficiently in failing to object, the evidence against the appellant was strong and, thus, the appellant did not show that the other-acts evidence prejudiced the appellant such that the outcome of the appellant's trial would have been different if trial counsel had made a successful objection. Calhoun v. State, 308 Ga. 146, 839 S.E.2d 612 (2020).
Scheme defined.
- Plan, scheme, device, design, etc., means a peculiar or distinctive method of committing a crime which, if employed at another time by an accused, would tend to show the accused was the one who employed it this time. Nicholson v. State, 125 Ga. App. 24, 186 S.E.2d 287 (1971) (decided under former Code 1933, § 38-202); Hammitt v. State, 183 Ga. App. 382, 359 S.E.2d 4; 183 Ga. App. 906, 359 S.E.2d 4 (1987), cert. denied,(decided under former O.C.G.A. § 24-2-2).
Impeachment of defendant's specific testimony by contradictory evidence.
- District attorney's reference to an indictment was an inappropriate means of impeaching, by contradictory evidence, defendant's statement that defendant had never hurt anyone. Williams v. State, 257 Ga. 761, 363 S.E.2d 535 (1988) (decided under former O.C.G.A. § 24-2-2).
In order for evidence of independent crime to be admissible as a circumstance of an arrest, it must be relevant to the circumstances of the arrest, which circumstances must, in turn, be relevant to the crime for which the defendant is on trial. Bryan v. State, 157 Ga. App. 635, 278 S.E.2d 177 (1981) (decided under former Code 1933, § 38-202).
Conduct of defendant before, during the time of, and after commission of a crime may be considered by the jury in establishing defendant's intention and defendant's participation in order to determine whether or not such intention and conduct were sufficient corroboration of the testimony of an accomplice to sustain a conviction. This may be done by circumstantial as well as by direct evidence. Zuber v. State, 248 Ga. 314, 282 S.E.2d 900 (1981) (decided under former Code 1933, § 38-202).
Conduct by family members.
- Trial court did not abuse the court's discretion in curtailing defendant's cross-examination of the victim as to the victim's spouse's criminal activities since defendant argued that the victim might have been a participant in the criminal conduct and that, therefore, the victim's credibility would have to be tested against the victim's criminal conduct. Bell v. State, 265 Ga. App. 407, 593 S.E.2d 935 (2004) (decided under former O.C.G.A. § 24-2-2).
Admission of family violence conviction.
- Trial court's admission of evidence of the defendant's prior conviction for family violence battery was not erroneous because the evidence was relevant to show motive, specifically that the defendant used violence to assert control when the defendant's authority was questioned. Chambers v. State, 351 Ga. App. 771, 833 S.E.2d 155 (2019).
Continuous course of conduct.
- In a criminal prosecution, evidence of another crime is admissible when both crimes are part of a continuous course of conduct, closely connected in time, place, and manner of commission. Putman v. State, 251 Ga. 605, 308 S.E.2d 145 (1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984) (decided under former O.C.G.A. § 24-2-2).
Past physical and verbal abuse admissible.
- Evidence of the defendant's past physical and verbal abuse of the victim was admissible as proof of the relationship between the defendant and the victim and to show the defendant's motive and intent. Faircloth v. State, 293 Ga. 134, 744 S.E.2d 52 (2013).
Two conditions imposed on admission of evidence of independent crimes.
- Before evidence of independent crimes is admissible two conditions must be satisfied: first, there must be evidence that the defendant was in fact the perpetrator of the independent crime; second, there must be sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter. Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981) (decided under former Code 1933, § 38-202); Paxton v. State, 160 Ga. App. 19, 285 S.E.2d 741 (1981); Milner v. State, 180 Ga. App. 97, 348 S.E.2d 509 (1986) (decided under former Code 1933, § 38-202);(decided under former O.C.G.A. § 24-2-2).
Length of time intervening between prior difficulty and present offense is only material as affecting the credibility and weight to be given such evidence. Barnes v. State, 157 Ga. App. 582, 277 S.E.2d 916 (1981) (decided under former Code 1933, § 38-202).
Objection to admission of similar transaction evidence must be at trial.
- Trial court properly denied defendant's motion for a new trial as defendant waived defendant's contentions that one of the similar transactions offered to show bent of mind and course of conduct was too remote in time, and that the similar transaction evidence was unduly prejudicial, as defendant failed to object on these grounds at trial. Murphy v. State, 263 Ga. App. 62, 587 S.E.2d 223 (2003) (decided under former O.C.G.A. § 24-2-2).
Use of alias.
- District attorney's opening statement to jury referring to defendant by defendant's alias "The Grass Man" was relevant since testimony of the witnesses established that defendant often used the alias. Campbell v. State, 160 Ga. App. 561, 287 S.E.2d 591 (1981) (decided under former Code 1933, § 38-202).
Prior peace warrant of victim against defendant.
- Under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), evidence of prior difficulties between the accused and the victim is admissible to illustrate the accused's motive, intent, or bent of mind toward the victim; therefore, a peace warrant that victim had taken out against defendant nine months before the victim's death was clearly relevant to show defendant's motive and "bent of mind" towards the victim, and the admission of the warrant into evidence did not violate defendant's due process rights. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931 (1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 108 L. Ed. 2d 965 (1990) (decided under former O.C.G.A. § 24-2-2).
Mistrial was not necessary to preserve defendant's right to a fair trial after trial court immediately ruled out improperly admitted evidence and instructed the jury to disregard the evidence and, thus, the trial court did not abuse the court's discretion in denying defendant's motion for a mistrial after defendant claimed that the state improperly placed defendant's character into evidence when the state attempted to introduce evidence of a third similar shoplifting incident in which defendant was involved but the state's evidence failed to establish the third similar incident. Bradford v. State, 261 Ga. App. 621, 583 S.E.2d 484 (2003) (decided under former O.C.G.A. § 24-2-2).
Although the defendant contended that the statements from the deceased child's mother and an acquaintance placed the defendant's prior felony before the jury, the defendant overstated the case, as the record reflected that the state instructed the mother not to reference the defendant's criminal history and the acquaintance's testimony was a surprise; the witnesses' statements were nonresponsive; the statements simply referenced the defendant's prior incarceration, and not a prior felony; and the trial court provided a curative instruction, which the jury was presumed to have followed; thus, the defendant's character was not put at issue, and the trial court did not abuse the court's discretion when the court denied the defendant's motions for a mistrial. Wade v. State, 304 Ga. 5, 815 S.E.2d 875 (2018).
Counsel not ineffective in failing to seek severance.
- In the defendant's trial for two murders, the defendant's trial counsel was not ineffective in failing to move to sever the counts involving the two victims; trial counsel testified that counsel did not move for a severance because counsel believed that the state could have introduced "other acts" evidence from one case into the other under O.C.G.A. § 24-4-404(b) or as intrinsic evidence, and counsel wanted to speed the trials up because, at the time, the state's witnesses were being uncooperative. DeLoach v. State, 308 Ga. 283, 840 S.E.2d 396 (2020).
Evidence of prior incarceration.
- Trial court did not abuse the court's discretion in admitting improper character evidence of the appellant regarding the appellant's previous incarceration because the appellant's brief statement about being in jail with the individual who assisted in the crime was relevant and admissible to show that the men knew each other prior to the crimes at issue. Easley v. State, 352 Ga. App. 1, 833 S.E.2d 591 (2019).
Similarity between former transactions and charged crime not found.
- When, in presenting similar crimes evidence to the jury, the state merely introduced certified copies of the guilty pleas, that procedure was reversible error because the jury was not presented with any evidence to establish the similarity or connection between the former transactions and the charged crime. Little v. State, 202 Ga. App. 7, 413 S.E.2d 496 (1991) (decided under former O.C.G.A. § 24-2-2).
Evidence of incident occurring when defendant was a juvenile.
- Trial court did not err when the court denied the defendant's motion for new trial on the basis that the state proffered similar transaction evidence of an incident that occurred when the defendant was a juvenile because the trial court did offer to give a curative instruction to the jury, but trial counsel refused the curative instruction citing "strategy" as counsel's reasons; the trial court admonished the witness not to make any references to the juvenile court proceeding. Kitchens v. State, 289 Ga. 242, 710 S.E.2d 551 (2011) (decided under former O.C.G.A. § 24-2-2).
Admission of similar transaction evidence not proper.
- State failed to prove that the defendant's prior attempted robbery was so similar to the charged offense that the charged offense must have been the defendant's handiwork as robbery of a woman alone at night after the woman had parked the car was not in the nature of a signature so as to be proof of the perpetrator's identity. Amey v. State, 331 Ga. App. 244, 770 S.E.2d 321 (2015), cert. denied, No. S15C1089, 2015 Ga. LEXIS 395 (Ga. 2015).
Evidence of other conduct or crimes was admissible in the following cases.
- See Fitzgerald v. State, 51 Ga. App. 636, 181 S.E. 186 (1935) (possession of whiskey) (decided under former Code 1933, § 38-202); Honea v. State, 181 Ga. 40, 181 S.E. 416 (1935) (conspiracy to commit robbery) (decided under former Code 1933, § 38-202); Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935) (conspiracy to commit robbery and murder) (decided under former Code 1933, § 38-202); Crow v. State, 52 Ga. App. 192, 182 S.E. 685 (1935) (transporting liquor) (decided under former Code 1933, § 38-202); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (robbery) (decided under former Code 1933, § 38-202); Sisk v. State, 182 Ga. 448, 185 S.E. 777 (1936) (murder) (decided under former Code 1933, § 38-202); Ballenger v. State, 60 Ga. App. 344, 4 S.E.2d 58 (1939) (maintaining a disorderly house) (decided under former Code 1933, § 38-202); Heller v. State, 60 Ga. App. 552, 4 S.E.2d 413 (1939) (possession of burglary tools) (decided under former Code 1933, § 38-202); Springer v. State, 60 Ga. App. 641, 4 S.E.2d 679 (1939) (illegal sale of whiskey) (decided under former Code 1933, § 38-202); Guiffrida v. State, 61 Ga. App. 595, 7 S.E.2d 34 (1940) (abortion) (decided under former Code 1933, § 38-202); Hale v. State, 62 Ga. App. 315, 7 S.E.2d 787 (1940) (illegal sale of whiskey) (decided under former Code 1933, § 38-202); Williams v. State, 62 Ga. App. 679, 9 S.E.2d 697 (1940) (operating a lottery) (decided under former Code 1933, § 38-202); Thompson v. State, 191 Ga. 222, 11 S.E.2d 795 (1940) (homicide) (decided under former Code 1933, § 38-202); Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, cert. denied, 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 464 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (murder) (decided under former Code 1933, § 38-202); Simmons v. State, 196 Ga. 395, 26 S.E.2d 785 (1943) (robbery) (decided under former Code 1933, § 38-202); Fuller v. State, 197 Ga. 714, 30 S.E.2d 608 (1944) (murder) (decided under former Code 1933, § 38-202); Christian v. State, 71 Ga. App. 350, 30 S.E.2d 832 (1944) (violation of lottery laws) (decided under former Code 1933, § 38-202); Bell v. State, 71 Ga. App. 430, 31 S.E.2d 109 (1944) (homicide) (decided under former Code 1933, § 38-202); Loughridge v. State, 201 Ga. 513, 40 S.E.2d 544 (1946) (homicide) (decided under former Code 1933, § 38-202); Diggs v. State, 90 Ga. App. 853, 84 S.E.2d 611 (1954) (larceny) (decided under former Code 1933, § 38-202); Bowman v. State, 91 Ga. App. 52, 85 S.E.2d 66 (1954) (seduction and fornication) (decided under former Code 1933, § 38-202); Pierce v. State, 212 Ga. 88, 90 S.E.2d 417 (1955) (murder) (decided under former Code 1933, § 38-202); Lyles v. State, 215 Ga. 229, 109 S.E.2d 785 (1959) (homicide) (decided under former Code 1933, § 38-202); Huckaby v. State, 127 Ga. App. 439, 194 S.E.2d 119 (1972) (obscene telephone calls) (decided under former Code 1933, § 38-202); Garrett v. State, 147 Ga. App. 666, 250 S.E.2d 1 (1978) (theft by conversion) (decided under former Code 1933, § 38-202); Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (murder) (decided under former Code 1933, § 38-202); Cleveland v. State, 155 Ga. App. 267, 270 S.E.2d 687 (1980) (drug violation) (decided under former Code 1933, § 38-202); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980) (vehicular homicide) (decided under former Code 1933, § 38-202); Carroll v. State, 155 Ga. App. 514, 271 S.E.2d 650 (1980) (bank robbery) (decided under former Code 1933, § 38-202); Wilson v. State, 155 Ga. App. 560, 271 S.E.2d 694 (1980) (theft by deception) (decided under former Code 1933, § 38-202); Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980) (burglary) (decided under former Code 1933, § 38-202); Kendrick v. State, 156 Ga. App. 27, 274 S.E.2d 78 (1980) (theft by receiving stolen property) (decided under former Code 1933, § 38-202); Walker v. State, 156 Ga. App. 842, 275 S.E.2d 755 (1980) (embezzlement) (decided under former Code 1933, § 38-202); Sherrod v. State, 157 Ga. App. 351, 277 S.E.2d 335 (1981) (battery) (decided under former Code 1933, § 38-202); Huckeba v. State, 157 Ga. App. 795, 278 S.E.2d 703 (1981) (indecent exposure) (decided under former Code 1933, § 38-202); Millwood v. State, 164 Ga. App. 699, 296 S.E.2d 239 (1982) (homicide with a knife over misconduct of a woman) (decided under former O.C.G.A. § 24-2-2); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982) (multiple murders, kidnappings, armed robbery and burglary in three counties) (decided under former O.C.G.A. § 24-2-2); Hendrix v. State, 164 Ga. App. 831, 298 S.E.2d 317 (1982) (evidence of same facts already properly before jury) (decided under former O.C.G.A. § 24-2-2); Hunter v. State, 177 Ga. App. 326, 339 S.E.2d 381 (1985) (aggravated battery) (decided under former O.C.G.A. § 24-2-2); Nelson v. State, 181 Ga. App. 481, 352 S.E.2d 804 (1987) (theft of disadvantaged victim, eleven years earlier under similar circumstances) (decided under former O.C.G.A. § 24-2-2); Haywood v. State, 256 Ga. 694, 353 S.E.2d 184 (1987) (evidence showing propensity to use gun when intoxicated) (decided under former O.C.G.A. § 24-2-2); Bernyk v. State, 182 Ga. App. 329, 355 S.E.2d 753 (1987) (armed robbery) (decided under former O.C.G.A. § 24-2-2); Methvin v. State, 189 Ga. App. 906, 377 S.E.2d 735 (1989) (burglary) (decided under former O.C.G.A. § 24-2-2); Burney v. State, 201 Ga. App. 64, 410 S.E.2d 172 (1991) (burglary) (decided under former O.C.G.A. § 24-2-2); Farley v. State, 265 Ga. 622, 458 S.E.2d 643 (1995) (felony murder) (decided under former O.C.G.A. § 24-2-2); Herring v. State, 224 Ga. App. 809, 481 S.E.2d 842 (1997) (prior domestic violence) (decided under former O.C.G.A. § 24-2-2); Standfill v. State, 267 Ga. App. 612, 600 S.E.2d 695 (2004) (burglary and possession of tools) (decided under former O.C.G.A. § 24-2-2).
Since the prior incidents and the incident for which the defendant was being prosecuted all involved the defendant or an accomplice being in employee-only areas when the stores were open and employees were present, the similarities were adequate to satisfy the state's burden of showing a sufficient connection between similar offenses and the instant offense. Spinks v. State, 322 Ga. App. 387, 745 S.E.2d 653 (2013).
Evidence of prior difficulties between the defendant and the victim was admissible to show an ongoing scheme and given that the evidence was not so complex that the jury was unable to distinguish the evidence. Madison v. State, 329 Ga. App. 856, 766 S.E.2d 206 (2014).
Admission of prior acts evidence was not an abuse of discretion as the similarity between the charged offense and an altercation two days earlier in which the defendant poked the victim with a knife made the former act highly probative of the defendant's intent. Powell v. State, 332 Ga. App. 437, 773 S.E.2d 399 (2015).
In the defendant's murder trial, other acts evidence, including the defendant's act of following the defendant's spouse and slashing the spouse's tire on two occasions, was admissible as relevant to the defendant's motive to take revenge on the victim, with whom the spouse was having an affair, and to provoke confrontation; the evidence also countered the defendant's theory of self-defense. Anthony v. State, 298 Ga. 827, 785 S.E.2d 277 (2016).
Testimony by the sister of the defendant's ex-wife regarding prior acts of domestic violence committed by the defendant was properly admitted for purposes of showing the defendant's motive to control family members with violence, the intent to harm intimate partners, and to show the absence of mistake or accident. Smart v. State, 299 Ga. 414, 788 S.E.2d 442 (2016).
Other acts evidence, showing that the defendant engaged in voyeuristic activity involving the defendant's minor sister-in-law, was relevant because it made it more probable that the defendant took the nude pictures of the defendant's step-daughter with the intent to arouse the defendant's sexual desire and was indicative of the defendant's state of mind. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131 (2016).
Other acts evidence was properly admitted against the appellant because while the tire cutting and surveillance incidents showed only that the appellant was hurt by the wife's decision to divorce the appellant and the appellant was gathering evidence for the pending divorce action, it was also readily understood as demonstrating the appellant's desire to take revenge and to provoke confrontation in response to the wife's affair with the victim. Anthony v. State, 298 Ga. 827, 785 S.E.2d 277 (2016).
Cross-examination of the defendant's mother and sister were for the purpose of impeaching their testimony about the defendant's whereabouts at the time of the crimes on trial and demonstrating their motives for offering alibi testimony, a fear of violent reprisal from the defendant, and O.C.G.A. § 24-4-404(b) did not prevent such examination. Davis v. State, 302 Ga. 576, 805 S.E.2d 859 (2017).
Trial court did not err in admitting evidence of two other acts because the probative value of the other acts was great given the state's need for evidence to combat the defendant's attacks on the victim's credibility and negate the defense of consent, and the extrinsic acts, which involved the defendant's attempt at non-consensual sexual gratification with women the defendant did not know, were not of such a heinous nature that the acts were likely to incite the jury to an irrational decision. Cross v. State, 354 Ga. App. 355, 839 S.E.2d 265 (2020).
It was highly probable that the admission of the other-act evidence showing that the defendant stabbed another homeless man with a fork, even if erroneous, did not contribute to the jury's guilty verdicts because the evidence of guilt was strong, the prior incident was not the sort that posed a significant risk of inflaming the jury's passion, and the prosecutor's comments about the prior incident were focused on intent. Howell v. State, 307 Ga. 865, 838 S.E.2d 839 (2020).
Trial court did not abuse the court's discretion when the court admitted the defendant's prior Florida convictions because the defendant put intent at issue and, contrary to the defendant's contention that the prior crimes and the instant crimes were not sufficiently similar, all involved defendant acquiring or attempting to acquire high-end vehicles through fraud or deceit. Clarke v. State, Ga. App. , S.E.2d (Sept. 8, 2020).
Evidence of other conduct or crimes was inadmissible in the following cases.
- See Cawthon v. State, 119 Ga. 395, 46 S.E. 897 (1904) (adultery as background for murder) (decided under former Penal Code 1895, § 993); Alsobrook v. State, 126 Ga. 100, 54 S.E. 805 (1906) (adultery as background for murder) (decided under former Penal Code 1895, § 993); Moose v. State, 145 Ga. 361, 89 S.E. 335 (1916) (threats to another in assault case) (decided under former Penal Code 1910, § 1019); Young v. State, 149 Ga. 17, 98 S.E. 603 (1919) (adultery as background for murder) (decided under former Penal Code 1910, § 1019); Williams v. State, 51 Ga. App. 319, 180 S.E. 369 (1935) (killing a hog) (decided under former Code 1933, § 38-202); Hillery v. State, 51 Ga. App. 373, 180 S.E. 499 (1935) (possession of stolen goods in burglary case) (decided under former Code 1933, § 38-202); Ballenger v. State, 60 Ga. App. 344, 4 S.E.2d 58 (1939) (maintaining a disorderly house) (decided under former Code 1933, § 38-202); Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940) (murder) (decided under former Code 1933, § 38-202); Waters v. State, 80 Ga. App. 559, 56 S.E.2d 924 (1949) (murder by automobile) (decided under former Code 1933, § 38-202); Anderson v. State, 206 Ga. 527, 57 S.E.2d 563 (1950) (operating a disorderly house in a murder case) (decided under former Code 1933, § 38-202); Walker v. State, 86 Ga. App. 875, 72 S.E.2d 774 (1952) (theft) (decided under former Code 1933, § 38-202); Howard v. State, 211 Ga. 186, 84 S.E.2d 455 (1954) (embezzlement) (decided under former Code 1933, § 38-202); Kelley v. State, 98 Ga. App. 324, 105 S.E.2d 798 (1958) (assault in attempted murder case) (decided under former Code 1933, § 38-202); Abner v. State, 139 Ga. App. 600, 229 S.E.2d 83 (1976) (victim as homosexual in sodomy case) (decided under former Code 1933, § 38-202); Watkins v. State, 151 Ga. App. 510, 260 S.E.2d 547 (1979) (forgery) (decided under former Code 1933, § 38-202); Johnson v. State, 154 Ga. App. 793, 270 S.E.2d 214 (1980) (sale of contraband) (decided under former Code 1933, § 38-202).
Trial court disagreed that the other acts evidence was especially probative of the credibility of the defendant and the victim, given the lack of similarity between the other acts evidence of child molestation and the charged offense of rape, the decade separating the other acts from the charged offense, and the defendant's immaturity at the time the other acts were committed; however, the trial court believed that, under the circumstances, admitting extrinsic evidence of acts of alleged child molestation would lure the jury into finding the defendant guilty based on proof that was not specific to the crime charged, thereby infecting the proceedings with unfair prejudice and undermining the presumption of innocence. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).
No ineffective counsel shown since state's motion to introduce was granted.
- Appellant failed to show that trial counsel performed deficiently by informing the jury that appellant had a lifelong drug and alcohol problem and had more than 20 criminal charges because the trial court had granted the state's motion to introduce other acts evidence under O.C.G.A. § 24-4-404(b), thus, it could not be said that any attempt trial counsel may have made to short-circuit its impact was deficient. Dickson v. State, 339 Ga. App. 500, 793 S.E.2d 663 (2016).
Evidence of improper juror influence through Facebook account.
- Trial court did not err in admitting evidence that the defendant conspired and attempted to improperly influence a juror in the defendant's trial because the jury could have concluded that the defendant, a podmate of the individual who told the individual's mother to contact a juror in the defendant's case, was part of the conspiracy to influence the juror through the use of a fake Facebook account and the evidence was relevant to the defendant's consciousness of guilt. West v. State, 305 Ga. 467, 826 S.E.2d 64 (2019).
2. Character
Good character may of itself generate a reasonable doubt in the minds of the jury as to the defendant's guilt, and for this reason the defendant is allowed when the defendant sees fit to offer defendant's good character in issue. Clarke v. State, 52 Ga. App. 254, 183 S.E. 92 (1935) (decided under former Code 1933, § 38-202).
In criminal trials, the state cannot introduce evidence of the character of the accused unless the accused has personally first put it in issue. Richardson v. State, 41 Ga. App. 226, 152 S.E. 599 (1930) (decided under former Penal Code 1910, § 1019); Clarke v. State, 52 Ga. App. 254, 183 S.E. 92 (1935); Love v. State, 70 Ga. App. 529, 28 S.E.2d 781 (1944) (decided under former Code 1933, § 38-202); Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1952); Haire v. State, 209 Ga. 378, 72 S.E.2d 707 (1952) (decided under former Code 1933, § 38-202); Borders v. State, 114 Ga. App. 90, 150 S.E.2d 306 (1966); Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968) (decided under former Code 1933, § 38-202); Dawson v. State, 120 Ga. App. 242, 170 S.E.2d 45 (1969); Bowen v. State, 123 Ga. App. 670, 182 S.E.2d 124 (1971) (decided under former Code 1933, § 38-202); Dudley v. State, 228 Ga. 551, 186 S.E.2d 875 (1972); Wooten v. State, 125 Ga. App. 635, 188 S.E.2d 409 (1972) (decided under former Code 1933, § 38-202); Askew v. State, 135 Ga. App. 56, 217 S.E.2d 385 (1975); Mikle v. State, 236 Ga. 748, 225 S.E.2d 275 (1976) (decided under former Code 1933, § 38-202); Brown v. State, 237 Ga. 467, 228 S.E.2d 853 (1976); Posey v. State, 152 Ga. App. 216, 262 S.E.2d 541 (1979) (decided under former Code 1933, § 38-202); Perry v. State, 154 Ga. App. 559, 269 S.E.2d 63 (1980), overruled on other grounds, 231 Ga. App. 61, 497 S.E.2d 642 (1998); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
General character of defendant and defendant's conduct in other transactions was irrelevant under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) unless the defendant chose to put defendant's character in issue. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-202).
Opportunity of state to disprove good character.
- Whenever defendant puts defendant's good character in issue as fact state has privilege of disproving this fact, by cross-examination of the witness by whom the accused attempts to make the proof. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-202).
When nature of the case does not involve defendant's character, and the case does not render necessary and proper the investigation thereof, it is error to allow, over objection of the defendant, prejudicial and irrelevant matter to go before the jury in a trial which tends to place defendant's character and conduct before the jury. Hartley v. State, 159 Ga. App. 157, 282 S.E.2d 684 (1981) (decided under former Code 1933, § 38-202).
After testimony put defendant's character in issue, implying defendant's commission of the offense and such testimony was not necessary or relevant to the circumstances of defendant's arrest, that testimony should not be admitted. Bryan v. State, 157 Ga. App. 635, 278 S.E.2d 177 (1981) (decided under former Code 1933, § 38-202).
A passing reference to a defendant's record does not place defendant's character in evidence. Johnson v. State, 256 Ga. 604, 351 S.E.2d 623 (1987) (decided under former O.C.G.A. § 24-2-2).
In a trial for armed robbery, aggravated assault, kidnapping, and possession of a firearm during the commission of certain crimes, the trial court properly denied defendant's motion for a mistrial even though the state placed defendant's character in issue when a police officer testified that defendant was "picked up on charges" when police arrested defendant in Maryland pursuant to a fugitive warrant because the testimony was admissible and relevant to the circumstances surrounding defendant's arrest, even if it did incidentally show that defendant committed another crime. Blake v. State, 272 Ga. App. 181, 612 S.E.2d 33 (2005) (decided under former O.C.G.A. § 24-2-2).
When an officer testified that the officer had known the defendant for a long time and "could have charged" the defendant in a couple of cases, this passing reference to prior conduct did not suffice to put the defendant's character in evidence so as to violate former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405); furthermore, a curative instruction remedied any prejudicial impact from the statement. Height v. State, 281 Ga. 727, 642 S.E.2d 812 (2007) (decided under former O.C.G.A. § 24-2-2).
When an investigator, asked how the investigator knew defendant, replied, "I've made contact with [the defendant] in the streets before and I believe through past cases," this did not warrant a mistrial. A passing reference to a defendant's criminal record did not suffice to put the defendant's character in evidence so as to violate former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405). Thomas v. State, 291 Ga. App. 795, 662 S.E.2d 849 (2008) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in denying the defendant's motion for mistrial, which was based on the admission of a recorded telephone conversation between the defendant and the defendant's mother, who stated "because it's on your record," in response to why the defendant could not be disappointed if the defendant was denied bond; the comment was fleeting and was not a direct comment about the defendant's criminal history, and the mother did not comment on the content of the defendant's criminal record or even say, with certainty, that one did or did not exist. Hamrick v. State, 304 Ga. App. 378, 696 S.E.2d 403 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion by denying a motion for a mistrial because, although a reference by a defense witness on cross-examination to the defendant's photograph having been pulled from the website of the Georgia State Board of Pardons and Paroles was improper, the curative instruction which the trial court gave was sufficient to remedy any prejudice arising from the answer. Moreover, the evidence of guilt in the case was overwhelming, such that the comment likely did not affect the outcome of the trial. Russell v. State, 308 Ga. App. 328, 707 S.E.2d 543 (2011) (decided under former O.C.G.A. § 24-2-2).
Defendant's character not "put in issue."
- It is only when a defendant has "put his character in issue," as that term is defined in the context of former O.C.G.A. §§ 24-2-2 and24-9-20(b), that the court is required to give a charge on good character and when, in a trial for aggravated battery, the defendant's statement that defendant never shot anybody was not responsive to the direct question relating to defendant's defenses of accident and self-defense, which the court did fully charge, the volunteered additional statement, merely repeated on redirect, was not legally sufficient to put defendant's character in issue. Williams v. State, 187 Ga. App. 355, 370 S.E.2d 210 (1988) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying defendant's motion in limine to exclude evidence that police, in searching defendant's apartment, found not only the murder weapon defendant used to shoot and kill defendant's girlfriend, but also two other handguns; the evidence of the two other handguns was relevant to the accuracy of a statement defendant gave to police that upon searching defendant's apartment, the police would find the two guns hidden in a shoe box and the fact that defendant owned the guns was not, in and of itself, evidence of bad character. Brinson v. State, 276 Ga. 671, 581 S.E.2d 548 (2003) (decided under former O.C.G.A. § 24-2-2).
State did not improperly place a defendant's character in evidence by informing the jury that defendant was charged with possession of a firearm by a convicted felon when defendant was charged with possession of a firearm by a convicted felon, not because defendant personally was a convicted felon, but because defendant aided and abetted defendant's cousin, a convicted felon, in receiving and possessing a firearm. Perry v. State, 276 Ga. 836, 585 S.E.2d 614, rev'd, 276 Ga. 839, 584 S.E.2d 253 (2003) (decided under former O.C.G.A. § 24-2-2).
Testimony by police officers did not improperly place the defendant's character at issue; statements regarding the charges against the defendant at the time of previous arrests were merely passing references and described the circumstances of the arrests; a statement about the defendant having an open warrant fell short of placing the defendant's character at issue. Williams v. State, 285 Ga. App. 190, 645 S.E.2d 676 (2007) (decided under former O.C.G.A. § 24-2-2).
Permitting an officer to testify that the officer had been looking for the defendant because the officer had a warrant for the defendant's arrest did not impermissibly put the defendant's character into issue; the testimony was admissible as relevant to the circumstances leading the police to the residence where the defendant was found. Smith v. State, 285 Ga. App. 399, 646 S.E.2d 499 (2007) (decided under former O.C.G.A. § 24-2-2).
Because a mere mention that the defendant had been in jail did not place the defendant's character in issue, and despite this fact the defendant waived any claim of error regarding the placement of character in issue, it did not amount to reversible error; moreover, the challenged testimony, given by the defendant's mother, amounted to a non-responsive answer, which the state did not directly solicit and it did not appear from the record that the state anticipated the response. Jennings v. State, 285 Ga. App. 774, 648 S.E.2d 105 (2007), cert. denied, No. S07C1576, 2007 Ga. LEXIS 667 (Ga. 2007) (decided under former O.C.G.A. § 24-2-2).
When a witness twice referred to a codefendant's incarceration, these nonresponsive answers did not improperly place the defendant's own character at issue. Moreover, any error was harmless because the evidence of the defendant's guilt was overwhelming. Walker v. State, 282 Ga. 703, 653 S.E.2d 468 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence that police were at the defendant's residence to serve defendant with an arrest warrant, because that evidence did not improperly place the issue of character into evidence, but was necessary to explain why police were able to detain, handcuff, and search the defendant. Moreover, a limiting instruction was also issued advising the jurors that the jurors were not to consider the warrant for any purpose other than to explain the officers' presence at the defendant's home. Thrasher v. State, 289 Ga. App. 399, 657 S.E.2d 316 (2008) (decided under former O.C.G.A. § 24-2-2).
Appellant alleged that the trial court erred by denying appellant's motion for a mistrial because a witness, while testifying about the abduction and murder of the victim, improperly injected the appellant's character in issue by saying, in front of the jury, "these guys are killers." While the state agreed that the reference to "killers" in this comment should not have been made, any error was harmless as the statement did not place the appellants' character in issue because the statement did not concern other transactions. Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009) (decided under former O.C.G.A. § 24-2-2).
Testimony that an investigator ran a criminal history check on the defendant and prepared photographic lineups at two police stations did not put the defendant's character into issue under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405). The testimony did not indicate that the defendant had been convicted of any crime and did not otherwise specify the nature of the defendant's prior dealings with police; moreover, the other evidence against the defendant was substantial and damning, and the action taken by the trial court assured, without drawing attention to the improper evidence, that there would be no other references to the defendant's criminal history. Young v. State, 297 Ga. App. 248, 676 S.E.2d 854 (2009) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err by denying the defendant's motion for mistrial with respect to a nonresponsive answer by an accomplice when the accomplice was asked on direct examination whether the accomplice had a conversation with defendant about a pistol in the defendant's possession on the day of the shooting because a nonresponsive answer that impacted negatively on the defendant's character did not improperly place the defendant's character in issue; moreover, the defendant declined the trial court's offer to give a curative instruction with regard to the statement. Lewis v. State, 287 Ga. 210, 695 S.E.2d 224 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err by denying the defendant's motion for mistrial due to the prosecutor's questioning an accomplice as to whether the accomplice had spoken with the defendant on the previous day because the possibility that the defendant had spoken with the accomplice did not necessarily imply that the defendant too was in custody; even if it did, a passing reference to the defendant's incarceration did not place the defendant's character in evidence. Lewis v. State, 287 Ga. 210, 695 S.E.2d 224 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial counsel did not place the defendant's character in issue by conceding the defendant's guilt of aggravated assault because the concession related to the facts alleged and crimes charged in the case, not to other transactions reflective of the defendant's character; given that numerous witnesses testified that the defendant had a bat on the night in question and struck the victim in the head with the bat while only one witness testified that the defendant took the victim's wallet out of the victim's pocket, trial counsel's strategy of contesting only the armed robbery count was reasonable and not ineffective. Taylor v. State, 304 Ga. App. 395, 696 S.E.2d 686 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying the defendant's motion for a mistrial after an investigating officer testified on crossexamination that the defendant gave the officer a statement right after the defendant talked with the defendant's parole officer because the testimony followed defense counsel's question regarding the content, not the timing of the defendant's statement; a passing reference to a defendant's record does not place his or her character in evidence, and a nonresponsive answer that impacts negatively on a defendant's character does not improperly place his or her character in issue. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141 (2010) (decided under former O.C.G.A. § 24-2-2).
Defendant failed to establish a claim of ineffective assistance of counsel due to counsel's failure to seek a mistrial after successfully objecting to a witness's testimony that the defendant told the witness that "he would have a shoot-out with police before he ever went back to jail" on the ground that the witness's response placed the defendant's character in evidence because even if counsel's failure to request a mistrial were deemed deficient, no mistrial would have been granted as a nonresponsive answer that impacted negatively on a defendant's character did not improperly place the defendant's character in issue. Billings v. State, 308 Ga. App. 248, 707 S.E.2d 177 (2011) (decided under former O.C.G.A. § 24-2-2).
Character not placed in issue by prison uniform.
- In a prosecution for felony murder, armed robbery, and burglary, the fact that the jury was shown a videotape of the defendant's statement to police depicting the defendant wearing a prison uniform did not place the defendant's character in evidence. Jackson v. State, 284 Ga. 484, 668 S.E.2d 700 (2008) (decided under former O.C.G.A. § 24-2-2).
Use of booking photographs.
- As the booking photograph in no way suggested that the defendant was guilty of any previous crimes, the trial court did not abuse the court's discretion in admitting the photographs. Clark v. State, 285 Ga. App. 182, 645 S.E.2d 671 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial court erred by admitting the defendant's mug shot from a prior arrest because the mug shot used in the photo array could not have been related to the crime for which the defendant was being tried, but it would have to be related to a prior crime; however, the error was harmless based on the overwhelming evidence of the defendant's guilt. Sharpe v. State, 288 Ga. 565, 707 S.E.2d 338 (2011) (decided under former O.C.G.A. § 24-2-2).
Agent's reference to the defendant's mug shot from a previous arrest was harmless because there was overwhelming evidence of the defendant's guilt. Butler v. State, 290 Ga. 425, 721 S.E.2d 889 (2012) (decided under former O.C.G.A. § 24-2-2).
Photographic identification.
- In a prosecution for forgery, defendant's photographic identification card issued by the Georgia Department of Corrections was admissible as relevant to issues of the identity of the perpetrator and the credibility of witnesses; the card did not refer to any charge or conviction nor indicate that defendant was a parolee. Biggins v. State, 229 Ga. App. 297, 494 S.E.2d 45 (1997) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying defendant's motion to exclude evidence and admitting the correctional facility identification card found on defendant's person at the time of arrest for stealing a car as the card was not used to show defendant's criminal character, but, instead, was used to prove that defendant gave a police officer investigating the crime a false name, which was a different crime. McNeil v. State, 257 Ga. App. 147, 570 S.E.2d 433 (2002) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting investigating officer's testimony that the investigating officer obtained from police in another county a prior photograph of defendant for use in a photographic lineup the investigating officer was creating as the investigating officer's testimony, without more, did not indicate that defendant was guilty of any prior crimes, and, thus, did not improperly place defendant's character in issue. Browne v. State, 261 Ga. App. 648, 583 S.E.2d 496 (2003) (decided under former O.C.G.A. § 24-2-2).
Defendant waived any error in the admission of a photograph of defendant with a gun as defendant did not argue at trial that the photo was improper character evidence; further, gun ownership did not impute bad character. Johnson v. State, 274 Ga. App. 641, 618 S.E.2d 716 (2005) (decided under former O.C.G.A. § 24-2-2).
Admission of fingerprint card.
- Admission into evidence of the defendant's fingerprint card taken in connection with a previous crime does not place the defendant's character into evidence when any incriminating evidence was removed from the face of the card. Williams v. State, 184 Ga. App. 124, 361 S.E.2d 15 (1987) (decided under former O.C.G.A. § 24-2-2).
In a prosecution for possession of marijuana, it was reversible error to introduce a fingerprint card of defendant that showed the date of a prior arrest and listed charges against defendant. Jinks v. State, 229 Ga. App. 18, 493 S.E.2d 214 (1997) (decided under former O.C.G.A. § 24-2-2).
Evidence of prison identification card.
- Defendant's claim that defendant's character was improperly placed into evidence when an officer testified that the officer found defendant's prison identification card in defendant's pocket was waived as defendant failed to make a further objection or renew defendant's motion for a mistrial after a curative instruction was given. McCullough v. State, 268 Ga. App. 445, 602 S.E.2d 181 (2004) (decided under former O.C.G.A. § 24-2-2).
Admission of videotape.
- Trial court did not err in denying defendant's motion in limine that sought to bar introduction of defendant's videotaped statement to police, as well as defendant's later motion for mistrial after the videotape was played for the jury; although defendant claimed that the videotape was entirely exculpatory and was only introduced by the state to place defendant's character in evidence because defendant referenced in the videotape a murder, separate from the instant crimes, with which defendant had previously been charged, the videotape was not entirely exculpatory and defendant's references in the videotape were relevant to other issues besides defendant's character, such as motive, intent, and course of conduct, and, thus, was material and admissible. Cummings v. State, 261 Ga. App. 281, 582 S.E.2d 231 (2003), cert. denied, 543 U.S. 824, 125 S. Ct. 40, 160 L. Ed. 2d 35 (2004) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err by admitting improper character evidence, consisting of video and photographs of the defendant stealing laptops, because the evidence showed the theft of the laptops the defendant was accused of receiving; the videotape was relevant to show that the laptops at issue were stolen. Fields v. State, 310 Ga. App. 455, 714 S.E.2d 45 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence of motive.
- Evidence that victim's taking of an arrest warrant would have immediately returned defendant to jail was relevant to prove that defendant had a motive to kill the victim and relevant evidence is not rendered inadmissible simply because it incidentally puts the defendant's character in issue. Terrell v. State, 271 Ga. 783, 523 S.E.2d 294 (1999), recons. denied, overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018) (decided under former O.C.G.A. § 24-2-2).
Evidence that defendant's motive for shooting the victim was the victim's friendship with a person who had apparently bought drugs from defendant, but had refused to pay the amount of money defendant demanded, was admissible, even if it injected defendant's character into evidence. Sharif v. State, 272 Ga. App. 660, 613 S.E.2d 176 (2005) (decided under former O.C.G.A. § 24-2-2).
Evidence that defendant was on probation at the time of the crimes was relevant to show defendant's motive for fleeing from the officer, even though the evidence might have reflected negatively on defendant's character. Mills v. State, 273 Ga. App. 699, 615 S.E.2d 824 (2005) (decided under former O.C.G.A. § 24-2-2).
Substantial evidence showed that defendant was using crack cocaine before the crimes and that defendant planned to take the victim's wallet to purchase more; proof of motive was not inadmissible simply because it incidentally put defendant's character into evidence. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005) (decided under former O.C.G.A. § 24-2-2).
Defendant failed to establish that defendant received ineffective assistance of counsel because, even assuming that the transcript was accurate and that the involvement of drug money was placed before the jury, the question elicited testimony which constituted relevant evidence of defendant's motive, and thus defense counsel was not ineffective in failing to object, since any objection would have been fruitless. Jones v. State, 280 Ga. 205, 625 S.E.2d 1 (2005) (decided under former O.C.G.A. § 24-2-2).
Trial counsel did not "open the door" to bad character evidence by stating that the evidence would show that the victim previously stole the defendant's cash and marijuana because evidence concerning the victim's transaction with the defendant and the defendant's subsequent suspicion that the victim stole the defendant's marijuana and money was admissible as evidence of prior difficulties between the two and was relevant to show the defendant's motives. Taylor v. State, 304 Ga. App. 395, 696 S.E.2d 686 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not violate former O.C.G.A. § 24-2-2 in admitting evidence of the defendant's extramarital relationship with another woman as it showed that the defendant had a motive to conceal the defendant's extramarital affair with the victim not only from the defendant's wife, but from the other woman. Washington v. State, 294 Ga. 560, 755 S.E.2d 160 (2014)(decided under former O.C.G.A. § 24-2-2).
Trial court did not err by admitting into evidence a former roommate's testimony about the defendant's conversation about a proposed insurance scheme as the evidence was relevant to show motive. Mattei v. State, 307 Ga. 300, 835 S.E.2d 623 (2019).
Trial court did not abuse the court's discretion in admitting other acts evidence showing the defendant's gang membership because that evidence helped establish a motive for the defendant to encourage the accomplice to shoot the victim. Worthen v. State, 306 Ga. 600, 832 S.E.2d 335 (2019).
Phone call admitted as evidence of motive.
- Trial court did not err by admitting a recording of a phone call defendant's wife made after being left alone in the police interview room because the call revealed a motive for why the defendant would want to injure the defendant's wife and the call showed that the stabbing was intentional. Wilson v. State, 351 Ga. App. 50, 830 S.E.2d 407 (2019), cert. denied, No. S19C1501, 2020 Ga. LEXIS 62 (Ga. 2020).
Evidence of drug use.
- Because evidence of the defendant's prior drug use and history of crimes committed against family members fueled by that drug use were properly admitted as relevant to the crimes charged, despite incidentally placing the defendant's character in issue, convictions for both aggravated assault and simple assault were upheld on appeal. Jones v. State, 283 Ga. App. 812, 642 S.E.2d 887 (2007) (decided under former O.C.G.A. § 24-2-2).
Because evidence of the defendant's prior drug use was introduced to show evidence of motive, it did not violate former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405); therefore, counsel was not ineffective for failing to raise a meritless objection. Simons v. State, 311 Ga. App. 819, 717 S.E.2d 319 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in allowing the state to introduce evidence that the defendant used cocaine and marijuana before the robbery because an accomplice's testimony that the accomplice and the defendant used drugs on the day of the crime was relevant evidence of the defendant's state of mind and admissible as part of the res gestae; whether the effects due to the drugs' use may have worn off by the time of the crime was a question for the jury to decide. Hawkins v. State, 316 Ga. App. 415, 729 S.E.2d 549 (2012) (decided under former O.C.G.A. § 24-2-2).
Evidence of defendant's Klu Klux Klan affiliation was admissible since the evidence explained defendant's motive for murder and defendant's bent of mind. Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998), cert. denied, 525 U.S. 1078, 119 S. Ct. 817, 142 L. Ed. 2d 676 (1999) (decided under former O.C.G.A. § 24-2-2).
Evidence of Gothic beliefs or Satanism.
- Trial court erred in admitting photographs of the defendant with dyed black hair and dark make-up, a document bearing the words of a "curse" to be recited while burning the letter over a black candle, and seven different inscriptions bearing themes of anguish, enslavement, atheism, and violence because nothing in the challenged evidence explicitly referenced Satanism or "gothic" beliefs and there was no testimony linking the inscriptions or other evidence to any such ideology. The trial court abused the court's discretion in admitting the challenged evidence, which bore no specific connection to the crime and operated to impugn the defendant's character. Boring v. State, 289 Ga. 429, 711 S.E.2d 634 (2011) (decided under former O.C.G.A. § 24-2-2).
Admission of defendant's violence-prone Facebook posts error.
- Trial court erred in allowing the state to introduce evidence in its case in chief of threatening posts the defendant had made on Facebook as evidence of the defendant's allegedly violent character and behavior in conformity therewith because O.C.G.A. § 24-4-405 required such proof be made by testimony as to reputation or in the form of an opinion; however, the error was harmless. Timmons v. State, 302 Ga. 464, 807 S.E.2d 363 (2017).
Evidence incidentally reflecting on character not barred.
- Former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) did not bar evidence simply because the evidence might incidentally reflect on the defendant's character. Felker v. State, 252 Ga. 351, 314 S.E.2d 621, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984) (decided under former O.C.G.A. § 24-2-2).
In allowing testimony relating to defendant's obtaining possession of a gun used in committing offenses, the trial court refused to allow characterization of defendant's conduct as criminal, denial of a motion to exclude the testimony was proper since the limitation injected defendant's character only minimally. Baker v. State, 225 Ga. App. 848, 485 S.E.2d 548 (1997) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying defendant's motion for a mistrial based on admission of a police officer's testimony that defendant, on the night prior to being arrested for theft by receiving stolen property, fled every time the officer turned into a particular parking lot and that the stolen property, a rental car, was parked nearby; even though the evidence might have incidentally put defendant's character in issue, the evidence was relevant and probative on the issue of defendant's consciousness of guilt. Richardson v. State, 275 Ga. App. 320, 620 S.E.2d 522 (2005) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in allowing evidence of the previous conflict between the defendant and the condominium association because the testimony was relevant to whether the defendant made telephone calls with the intent of harassing the victim in violation of O.C.G.A. § 16-11-39.1(a) and only incidentally reflected on the defendant's character. Bozzuto v. State, 276 Ga. App. 614, 624 S.E.2d 166 (2005) (decided under former O.C.G.A. § 24-2-2).
In a prosecution for armed robbery, the victim's testimony that the defendant looked at the victim with a "mean, just horrible cold-hearted face" was relevant to show the defendant's demeanor during the commission of the crime, even if the testimony incidentally placed the defendant's character in issue. Fuller v. State, 295 Ga. App. 439, 672 S.E.2d 438 (2009), cert. denied, No. S09C0749, 2009 Ga. LEXIS 220 (Ga. 2009) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying the defendant's motion for a mistrial based on an allegation that the defendant's character was impermissibly placed into evidence because the challenged testimony was no more than a fleeting comment, and, thus, the trial court was authorized to find that its effect was not prejudicial enough to warrant a mistrial; because defense counsel declined the trial court's offer to give curative instructions to the jury, the defendant would not be heard to complain. Bowen v. State, 304 Ga. App. 819, 697 S.E.2d 898 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in failing to grant a mistrial after a witness testified that the witness was afraid of the defendant and the defendant's friends because although the testimony put the defendant's character in evidence, the testimony was admissible since the testimony was relevant to the witness's credibility and was being used to show that the witness was testifying by reason of duress or fear; in light of the fact that four other witnesses independently testified that the witnesses also observed the defendant shoot the victim and picked the defendant out of a photographic lineup, even if the witness's testimony was improper, any error was harmless. Cannon v. State, 288 Ga. 225, 702 S.E.2d 845 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying the defendant's motion in limine to redact references in the defendant's statement to previous drug transactions because the statement was relevant to the issue of the defendant's intent; any potential error caused by the inclusion of the defendant's references to previous drug transactions amounted to harmless error in light of the overwhelming evidence against the defendant, including the defendant's own statement admitting to drug dealing. Nowell v. State, 312 Ga. App. 150, 717 S.E.2d 730 (2011) (decided under former O.C.G.A. § 24-2-2).
Testimony that the defendant had another child was admissible even though the testimony might incidentally place the defendant's character at issue because the testimony was relevant to explain why the 12-year-old victim, who had initially fabricated a story about the father of the child, later said that the victim had a sexual relationship with the defendant; and because, given the overwhelming evidence demonstrating that the defendant was the father of the defendant's 12-year-old niece's child, it was unlikely that the testimony negatively impacted the outcome of the defendant's case, and the failure to demonstrate harm from an alleged error precluded reversal. Andrews v. State, 331 Ga. App. 353, 771 S.E.2d 59 (2015).
Evidence of good character may not serve to create such doubt, even in the face of apparently conclusive evidence, as to lead jurors to believe the other evidence false or witnesses mistaken. Edwards v. State, 255 Ga. 149, 335 S.E.2d 869 (1985) (decided under former O.C.G.A. § 24-2-2).
Testimony as to defendant's residence.
- Defendant's character not injected into evidence after a police officer testified that the officer knew where defendant resided. Chaney v. State, 169 Ga. App. 616, 314 S.E.2d 457 (1984) (decided under former O.C.G.A. § 24-2-2).
State's mention of defendant's aliases.
- State does not impermissibly place the defendant's character in issue by referring, in a limited manner, to the defendant's uncontested correct aliases and nickname. Veal v. State, 167 Ga. App. 175, 306 S.E.2d 667 (1983), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-2).
Good character is valid defense.
- Courts of this state have consistently recognized the validity of a good character defense, and have held that good character should be considered by the court and jury. Riceman v. State, 166 Ga. App. 825, 305 S.E.2d 595 (1983) (decided under former O.C.G.A. § 24-2-2).
Specific acts to prove character.
- Former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) limits proof of character to evidence of reputation. Proof of conduct in other transactions by evidence of specific instances of such conduct is not authorized but amounts to self-serving declarations of nonculpability to prove a trait of character. Baine v. State, 181 Ga. App. 856, 354 S.E.2d 177 (1987) (decided under former O.C.G.A. § 24-2-2); Barrett v. State, 192 Ga. App. 705, 385 S.E.2d 785 (1989);(decided under former O.C.G.A. § 24-2-2).
Character testimony need not be based exclusively on community relationships.
- Appellate court could not conclude that the trial court erred in restricting the character testimony of one of the defendant's witnesses, which testimony was obtained through business relationships rather than through the community in which the defendant lived, and further, even if the trial court did commit error, the defendant showed no harm in the restriction as the trial court did not completely restrict the witness's testimony, and because of the cumulative testimony of the other character witnesses concerning the defendant's good character. Burchette v. State, 260 Ga. App. 739, 580 S.E.2d 609 (2003), aff'd, 278 Ga. 1, 596 S.E.2d 162 (2004) (decided under former O.C.G.A. § 24-2-2).
Inadvertant reference did not warrant mistrial.
- Given the trial court's prompt and pointed curative instruction after an inadvertent placement of the defendant's character into evidence, the trial court did not abuse the court's discretion in denying the defendant a mistrial. Hunter v. State, 281 Ga. 526, 640 S.E.2d 271 (2007) (decided under former O.C.G.A. § 24-2-2).
When a stalking victim was asked if the defendant had ever pulled a gun on the victim, the victim's reply that the victim had seen the defendant pull a gun on someone else was stricken as nonresponsive, and the trial court advised the jury to disregard that response. Even assuming this testimony improperly injected evidence of the defendant's bad character, the defendant was not entitled to a mistrial, particularly in light of the defendant's testimony that admitted each act listed in the indictment. Seibert v. State, 294 Ga. App. 202, 670 S.E.2d 109 (2008) (decided under former O.C.G.A. § 24-2-2).
When the nature of the presentence hearing involves the "general character" of the defendant, and when the state has notified the defendant that such evidence will be admitted, evidence of general bad character may be admitted. Cowan v. State, 130 Ga. App. 320, 203 S.E.2d 311 (1973) (decided under former Code 1933, § 38-202); Cochran v. State, 144 Ga. App. 820, 242 S.E.2d 735 (1978);(decided under former Code 1933, § 38-202).
Statements as to defendant's drinking habits.
- Testimony that a defendant drank alcohol did not place defendant's character in issue under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405); further, testimony that the defendant had been drinking on the night of the crimes of child molestation of the defendant's daughter concerned the res gestae of the incident, which the state was entitled to present even if the defendant's character was incidentally placed in issue. Hernandez v. State, 304 Ga. App. 435, 696 S.E.2d 155 (2010) (decided under former O.C.G.A. § 24-2-2).
Evidence of victim's alcoholism not relevant.
- Defendant's convictions of aggravated battery and simple battery were affirmed as the trial court properly refused to admit evidence of the victim's alcoholism prior to the victim's involvement with defendant since defendant failed to show any nexus between the victim's alcoholism and the conclusion that the victim had falsely accused defendant of battery. Harris v. State, 263 Ga. App. 329, 587 S.E.2d 819 (2003) (decided under former O.C.G.A. § 24-2-2).
Voluntary intoxication charge was not "red flag" as to character.
- Defendant's claim that the state used a voluntary intoxication charge as a "red flag" to the jury that defendant was drunk and therefore was "an unsavory character," that the victim's parents now might question their decision "to invite this intoxicated man into their home," and that defendant had "major psychological problems" was rejected; there was evidence from which an inference or deduction might be made that defendant was drunk on the afternoon in question. Byers v. State, 276 Ga. App. 295, 623 S.E.2d 157 (2005) (decided under former O.C.G.A. § 24-2-2).
Bent of mind evidence.
- In a joint trial of two defendants, the trial court did not err in showing the jury portions of a movie which depicted a method of disposing of a murdered victim's body as: (1) such was relevant to show a bent of mind, despite the fact that it could have placed the first defendant's character in issue; and (2) the jury could have made the permissible inference that the first defendant was encouraged by the movie to order the manner of disposing of the victim's body; moreover, because the second defendant failed to request a cautionary instruction to adequately protect from this inference, the second defendant could not complain of the inference on appeal. Oree v. State, 280 Ga. 588, 630 S.E.2d 390 (2006) (decided under former O.C.G.A. § 24-2-2).
Although trial counsel should not have acquiesced in and later failed to object to a jury charge on a "bent of mind" exception, reading the charge as a whole, including the correct portions of the instructions regarding the proper purpose for admitting the prior difficulty evidence, there was no fair risk that the jury was confused and misled as to the proper limited use of prior difficulty transaction evidence to the prejudice of the defendant. Butler v. State, 354 Ga. App. 473, 841 S.E.2d 162 (2020).
Character evidence admissible.
- On the trial of a case arising under a municipal ordinance prohibiting street walking, evidence of the general character of the woman arrested was admissible. Braddy v. City of Milledgeville, 74 Ga. 516, 58 Am. R. 443 (1885) (decided under former Code 1882, § 3757).
On the trial of one for murder when the testimony tended to show that the homicide was committed in consequence of an effort to have some sort of sexual relation with the victim, and the defendant introduced a witness to establish the defendant's good character, it was competent, on cross-examination, to ask such witness if the witness had not heard of certain lascivious acts of the defendant with other females. Frank v. State, 141 Ga. 243, 80 S.E. 1016, aff'd on other grounds, 142 Ga. 741, 83 S.E. 645 (1914); 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 582 (1915) (decided under former Penal Code 1910, § 1019).
Trial court did not abuse the court's discretion in finding that the defendant's prior bad acts were admissible because the defendant pled not guilty, thereby making intent a material issue; thus, the defendant's position of intending only to help the victims, but not to commit any criminal offenses, squarely challenged the element of intent and the witness testified that the defendant sold the witness as a prostitute and held the witness against their will, just like the defendant did with the victims in the case. Curry v. State, 330 Ga. App. 610, 768 S.E.2d 791 (2015), cert. dismissed, No. S16C0519, 2016 Ga. LEXIS 278 (Ga. 2016).
Trial court did not err in finding that the defense opened the door to the admission of character evidence because, although counsel's question to the witness might not have been specifically aimed at eliciting character evidence, it was, as admitted by counsel, part of counsel's trial strategy to allow the witness to give lengthy and nonresponsive answers to questioning; and the trial court exercised the court's discretion and concluded that counsel's conscious decision not to object or redirect the nonresponsive witness once the witness made a reference to the defendant's character created an inference that counsel intended to inject character evidence into the trial and thus triggered the state's right to explore and impeach that testimony. Harris v. State, 330 Ga. App. 267, 765 S.E.2d 369 (2014)(decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in finding that the defense intentionally placed the defendant's general character in issue and triggered the state's right to cross-examine a character witness about the defendant's criminal history as although defense counsel may not have specifically aimed at eliciting character testimony, the door was opened when defense counsel did not object or move to strike the testimony that the defendant was a man of integrity as nonresponsive, and, in fact, presented 11 character witnesses. Montgomery v. State, 350 Ga. App. 244, 828 S.E.2d 620 (2019).
When defendant put defendant's character in issue by attempting to explain defendant's actions as resulting from devotion to defendant's church, admission of evidence of prior convictions was proper. Language v. State, 169 Ga. App. 649, 314 S.E.2d 484 (1984) (decided under former O.C.G.A. § 24-2-2).
Testimony about the characteristics of spousal abuse and a statement that defendant fit the profile of a spouse abuser was properly admitted in defendant's trial for felony murder and aggravated assault of defendant's spouse after defendant claimed the defense of an accident, thereby putting defendant's character into evidence; the court found such testimony was relevant to rebut defendant's claimed defense. Jones v. State, 276 Ga. 253, 577 S.E.2d 560 (2003) (decided under former O.C.G.A. § 24-2-2).
Although the general character of a party and the party's conduct in other transactions were usually irrelevant, the trial court did not err in concluding that defendant's counsel rendered effective assistance and was not ineffective for not objecting to the codefendant's testimony that defendant was not employed and sold drugs for a living, as such testimony, although incidentally involving defendant's character, went to the very central issue in the case of whether defendant was dealing drugs, and, thus, defendant's counsel could not be faulted for not making an objection that would have been meritless because such testimony was admissible. Pitts v. State, 260 Ga. App. 553, 580 S.E.2d 618 (2003) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err by allowing the state to cross-examine the defendant's biological daughter about having previously worked as a stripper and having abused drugs because the evidence was offered by the state in rebuttal to the daughter's testimony after the defendant intentionally elicited the testimony as to the defendant's and the daughter's own good character; since the only conceivable purpose of the questions defense counsel asked the daughter was to elicit testimony concerning the character of the defendant and the daughter, the trial court did not err when the court held that the state could introduce rebuttal evidence on the same subject. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77 (2010) (decided under former O.C.G.A. § 24-2-2).
State's introduction of evidence of the defendant's two prior arrests was not improper since the only conceivable purpose of defense counsel's questions to a case agent was to elicit testimony concerning the defendant's character, defense counsel opened the door to the state's rebuttal character evidence on the same specific subject. Green v. State, 298 Ga. App. 17, 679 S.E.2d 348 (2009) (decided under former O.C.G.A. § 24-2-2).
Evidence of abuse of ex-spouse properly admitted.
- In the defendant's trial for the murder of the defendant's spouse, even assuming that the trial court erred in permitting the defendant's ex-spouse to testify pursuant to O.C.G.A. § 24-4-404(b), the evidence of the defendant's abuse of the defendant's ex-spouse was harmless because similar evidence regarding the victim was already admitted. Leili v. State, 307 Ga. 339, 834 S.E.2d 847 (2019).
Admission of defendant's videotaped statement in which defendant implicated oneself in the commission of other crimes did not improperly place defendant's character in issue. Griffin v. State, 243 Ga. App. 282, 531 S.E.2d 175 (2000) (decided under former O.C.G.A. § 24-2-2).
Evidence properly admitted as res gestae and did not amount to bad character evidence.
- Introduction of evidence regarding crimes for which the defendant was not charged, specifically two checkbooks that were recovered from the defendant's residence at the time of the arrest, and testimony of the defendant's involvement in two uncharged robberies, did not amount to bad character evidence, but was part of the res gestae; moreover, pretermitting whether the trial court properly admitted the aforementioned evidence, any error arising from that admission was harmless. Cartledge v. State, 285 Ga. App. 145, 645 S.E.2d 633 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion when the court allowed a passenger in the defendant's car to testify that the defendant "always ran red lights," as such was not used for improper character evidence under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), but rather, as part of the res gestae of the moments described by the passenger, whereupon a police officer had to swerve away from the defendant's vehicle and the officer eventually died from injuries sustained in a subsequent crash; further, any error in the admission thereof was harmless due to the overwhelming amount of evidence of the defendant's guilt. Potts v. State, 296 Ga. App. 242, 674 S.E.2d 109 (2009) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err by ruling that the state was not required to redact from a recording allegedly irrelevant and prejudicial statements the defendant made during the course of the offense; evidence of statements made by the defendant during the commission of the offense are admissible as part of the res gestae of the crime even if the evidence puts the defendant's character in evidence. Ware v. State, 308 Ga. App. 24, 707 S.E.2d 111 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial counsel was not deficient for failing to object to the victim's testimony regarding the defendant's excessive alcohol consumption, mental health problems, and possession of a handgun because the evidence was part of the res gestae of the numerous incidents of prior difficulties between the victim and the defendant; the evidence was relevant and admissible, even if the evidence incidentally placed the defendant's character in issue. Billington v. State, 313 Ga. App. 674, 722 S.E.2d 395 (2012) (decided under former O.C.G.A. § 24-2-2).
Photograph of defendant in possession of gun not bad character evidence.
- Trial court did not abuse the court's discretion in admitting a photograph showing the defendant in possession of a gun because the photograph was relevant to show that the defendant, at some point, possessed the type of gun used in the crimes at issue; and the probative value of the evidence was not substantially outweighed by its prejudice, as even evidence that a defendant owned and frequently carried a pistol did not impute to the defendant generally bad character. Lyons v. State, Ga. , 843 S.E.2d 825 (2020).
Evidence properly admitted to establish defendant's identity and appearance, and did not amount to bad character evidence.
- Trial court did not err in denying a motion in limine to exclude the testimony of a state witness that allegedly placed the defendant's character in issue because the testimony was relevant to establish the defendant's identity and appearance on that date of the charged crime, and was not rendered inadmissible merely because the testimony incidentally placed the defendant's character in issue. Moreover, the defendant's trial counsel conceded that the witness's testimony regarding the description was admissible. Buice v. State, 289 Ga. App. 415, 657 S.E.2d 326 (2008) (decided under former O.C.G.A. § 24-2-2).
Bad character evidence improperly admitted.
- Trial court erred in permitting a witness to testify that the witness saw the defendant with a pistol because the witness testified that the young defendant pulled out the gun while in a group of people at a shopping mall, and such testimony imputed bad character to the defendant. The trial court admitted the bad character evidence after defense counsel inquired into how the police had procured the witness's statement, but that inquiry had no bearing on the defendant's character and thus did not open the door to permit the introduction of character evidence. Lee v. State, 308 Ga. App. 711, 708 S.E.2d 633 (2011) (decided under former O.C.G.A. § 24-2-2).
Limiting instruction proper.
- Limiting instruction on similar transaction evidence was properly given as the instruction was substantially the same as an approved pattern and did not direct the jury that the jury could consider similar transaction evidence to show any element of the offense charged in the indictment. Miller v. State, 281 Ga. App. 354, 636 S.E.2d 60 (2006), cert. denied, No. S07C0087, 2007 Ga. LEXIS 106 (Ga. 2007) (decided under former O.C.G.A. § 24-2-2).
Claim waived.
- Appeals court rejected the defendant's contention that the trial court erroneously admitted character evidence consisting of the defendant's statement made to a special agent regarding past cocaine use and distribution, when at trial, counsel raised a delayed objection arguing that such was inculpatory, and the objection was not only untimely but also failed to state the specific grounds raised on appeal; moreover, because the defendant later admitted to making the statement, any error in admitting the special agent's testimony was harmless. Henley v. State, 281 Ga. App. 242, 635 S.E.2d 856 (2006) (decided under former O.C.G.A. § 24-2-2).
Despite the defendant's claim that the trial court erred by denying a mistrial based on an improper character reference in violation of former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), because counsel failed to do anything more than move for a mistrial following the challenged statement and specifically request a curative instruction, no error resulted from the denial of the motion. Johnson v. State, 285 Ga. App. 590, 646 S.E.2d 760 (2007) (decided under former O.C.G.A. § 24-2-2).
Because the defendant did not contend at trial that testimony was improper character evidence or violated the defendant's Sixth Amendment right of confrontation, those bases for objections were not preserved for review on appeal. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012) (decided under former O.C.G.A. § 24-2-2).
Counsel was not ineffective in failing to object to statements that might have impugned defendant's character, and hence the defendant was properly denied a new trial on those grounds. Page v. State, 287 Ga. App. 182, 651 S.E.2d 131 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial counsel was not ineffective for failing to move for a mistrial when a state's witness interjected bad character evidence because the witness's improper remarks were fleeting, unsolicited, and nonresponsive to the prosecutor's examination questions, and since the defendant did not show that the defendant was otherwise entitled to a mistrial based upon the circumstances, trial counsel's failure to pursue a meritless motion does not constitute ineffective assistance of counsel; the trial court sustained the objections to the improper testimony and instructed the prosecutor and witness to restrict the examination and responses, the witness and prosecutor complied with the trial court's instructions, and there was no further mention of the bad character evidence. Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158 (2011) (decided under former O.C.G.A. § 24-2-2).
Defendant failed to establish that there was a reasonable probability that, but for the alleged deficiencies of trial counsel, the outcome of the trial would have been different because even assuming that trial counsel performed deficiently by failing to object to character evidence, the defendant failed to show a reasonable probability that the outcome of the trial would have been different; the evidence of the crime charged was overwhelming. Lowe v. State, 310 Ga. App. 242, 712 S.E.2d 633 (2011) (decided under former O.C.G.A. § 24-2-2).
Defendant failed to demonstrate that trial counsel rendered ineffective assistance by failing to challenge the admission of bad character evidence against a codefendant because the defendant failed to call trial counsel as a witness during the motion for new trial hearing, and the record supported the trial court's finding that counsel made a conscious, strategic decision not to oppose the admission of evidence of the codefendant's cocaine conviction. Smith v. State, 316 Ga. App. 175, 728 S.E.2d 808 (2012) (decided under former O.C.G.A. § 24-2-2).
Evidence admissible to impeach witness.
- Trial court did not abuse the court's discretion in admitting bad character evidence because the testimony of the defendant's witness called into question the truthfulness of the state's witnesses; therefore, evidence of an incident where the defendant allegedly possessed a knife in the witness's presence was admissible for purposes of impeaching the witness. Pate v. State, 315 Ga. App. 205, 726 S.E.2d 691 (2012), cert. denied, No. S12C1308, 2012 Ga. LEXIS 1027 (Ga. 2012), appeal dismissed, 2020 U.S. App. LEXIS 3372 (11th Cir. Ga. 2020) (decided under former O.C.G.A. § 24-2-2).
3. Specific Crimes
a. Assault, Battery, and Homicide Crimes
Use of improper standard for admissibility not harmless error.
- Trial court erred in applying an obsolete legal standard to allow the state to introduce other-acts evidence and the error was not harmless because, aside from that evidence, the defendant's convictions rested on the testimony of a nine-year-old child, the defendant's initial willingness to lie to police about the defendant's whereabouts and knowledge of the shooting, and testimony from the gun owner and the owner's brother, who was indicted for the murder and had a motive to lie. Rouzan v. State, Ga. , 843 S.E.2d 814 (2020).
Proper admission of similar transaction evidence.
- In a prosecution for aggravated assault, under O.C.G.A. § 16-5-21, and possession of a knife during the commission of a crime, under O.C.G.A. § 16-11-106(b)(1), evidence that defendant stabbed another in an incident eight years previously was admissible to show whether defendant intended to threaten or harm the victim when defendant brandished a knife, and the evidence was not more prejudicial than probative, given the prior incident's relevance to a necessary element of the current crimes. Ledford v. State, 275 Ga. App. 107, 620 S.E.2d 187 (2005) (decided under former O.C.G.A. § 24-2-2).
During the defendant's trial for malice murder and drug-related offenses, the trial court did not abuse the court's discretion in admitting as similar transaction evidence testimony regarding the defendant's previous arrest on a charge of possession of cocaine with intent to distribute and a prior shooting incident because a drug sting was similar to the cocaine trafficking in that both involved relatively recent arrangements for appellant to sell cocaine, and the shooting incident was probative of defendant's inclination towards unprovoked gun violence; the similar transactions were offered to prove, inter alia, intent and state of mind, the trial court admitted the evidence for those limited purposes only, and the trial court instructed the jury accordingly. Moore v. State, 288 Ga. 187, 702 S.E.2d 176 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion by admitting evidence of prior molestation acts upon a minor victim witness because the jury could have concluded by a preponderance of the evidence that the defendant committed the acts described by the witness and the probative value was great based on the overall similarity of the acts, each involved inappropriate sexual contact between the defendant and a child of similar age to whom the defendant gained access through a relationship with the child's mother. Dixon v. State, 341 Ga. App. 255, 800 S.E.2d 11 (2017).
Trial court did not abuse the court's discretion in ruling that evidence of the 1993 murder was admissible as the evidence was similar transaction evidence as the state expressly sought to introduce evidence of the 1993 murder for an appropriate purpose, there was no question that the defendant committed the murder, and, in both instances, the defendant used a gun to shoot someone in the presence of one's peers, the defendant did so with little provocation, and the defendant had engaged in drug transactions with the victim. Norman v. State, 303 Ga. 635, 814 S.E.2d 401 (2018).
Admission of similar transaction proper.
- Because the state adequately showed the connection between the murder of one victim, and the murder charged in the instant proceeding, specifically embedded in the defendant's proffered motive that the killing of the victim in the instant proceeding was committed to prevent evidence from being introduced against the defendant in the first killing, the similar transaction evidence was properly allowed; hence, the similar transaction did not amount to improper character evidence. Young v. State, 281 Ga. 750, 642 S.E.2d 806 (2007) (decided under former O.C.G.A. § 24-2-2).
In a trial for felony murder, aggravated assault, and possession of a firearm during the commission of a felony, the trial court properly allowed the state to introduce as similar transaction evidence an aggravated assault the defendant committed four years earlier; both the old assault charge and crimes for which the defendant was on trial involved violent assaults committed by the defendant with the help of young, unarmed accomplices, involved the defendant's use of a firearm and demand for valuables, and targeted business people within the same five-mile area during morning work hours. Edwards v. State, 282 Ga. 259, 646 S.E.2d 663 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence of the 1999 incident in which the defendant was standing on the defendant's ex-girlfriend's porch with the ex-girlfriend, the ex-girlfriend's daughter, and other children when the defendant pulled out a handgun, pointed the handgun at the people on the porch, and pulled the trigger, although the gun did not fire, because, in both the current and prior incident, the defendant pulled out a handgun and aimed the handgun at a person with whom the defendant had a dispute, in a residential area, ignoring the presence of innocent bystanders, including a child. Brown v. State, 295 Ga. 804, 764 S.E.2d 376 (2014).
When the defendant was convicted of malice murder for setting the victim on fire and burning the victim's apartment building with a Molotov cocktail, the state was properly allowed to introduce similar transaction evidence that the defendant attempted to burn down the house of the defendant's sister using a Molotov cocktail because the evidence was introduced for the proper purpose of showing the defendant's intent, bent of mind, course of conduct, and identity; there were clear similarities between the current and previous crimes, including that the victims were women with whom the defendant had a close relationship; and the choice of a unique weapon, a Molotov cocktail, was the same. Scruggs v. State, 295 Ga. 840, 764 S.E.2d 413 (2014).
Defendant's conviction for impersonating a law enforcement officer was affirmed and the trial court did not err by admitting evidence of the defendant's prior convictions for financial identity fraud, forgery, and stealing public documents because intent was in issue and the prior criminal acts and the crime at issue involved a similar mental state or intent, namely, to obtain an advantage through misrepresentation or use of someone else's identifying information. Chase v. State, 337 Ga. App. 449, 787 S.E.2d 802 (2016).
Trial court did not err in admitting evidence of the defendant's involvement in a prior murder as both offenses involved strangers, the murders were not planned well in advance, and the motives for both were related to a relatively minor dispute. Blackledge v. State, 299 Ga. 385, 788 S.E.2d 353 (2016).
Trial court did not abuse the court's discretion in admitting evidence the defendant previously committed an act of family violence battery and simple battery against the defendant's estranged wife and the wife's sister because that evidence was relevant to shed light on why the defendant reacted as the defendant did when the victim did not acquiesce to sexual advances, hitting the victim when the victim would not let the defendant force the defendant's penis into the victim's mouth. Harris v. State, 338 Ga. App. 778, 792 S.E.2d 409 (2016).
While the trial court erred when the court admitted the defendant's 24-year-old prior conviction for aggravated assault, because the defendant's intent when the defendant committed the prior assault had nothing to do with the defendant shooting the victim and the case had no purpose other than to show the defendant's propensity toward violence, the error was harmless given the substantial evidence of the defendant's guilt. Parks v. State, 300 Ga. 303, 794 S.E.2d 623 (2016).
Trial court properly permitted the state to introduce evidence of the defendant's two prior bad acts, a 2009 incident of exposure in front of underage girls and a 2012 incident of attempt to sexually assault a female neighbor, because they were not the faultless acts of an innocent child, but rather demonstrated evidence of the defendant's lustful disposition and were relevant. Robinson v. State, 342 Ga. App. 624, 805 S.E.2d 103 (2017).
In the defendant's trial for the shooting death of a drug dealer, evidence showing the defendant's involvement in a prior similar incident was admissible under O.C.G.A. § 24-4-404(b), despite the defendant's acquittal of charges in that case; Moore v. State, 254 Ga. 674, 333 S.E.2d 605 (1985), applying collateral estoppel principles, was disapproved. State v. Atkins, 304 Ga. 413, 819 S.E.2d 28 (2018).
Trial court did not abuse the court's discretion when the court concluded that the evidence of two prior acts was relevant because the 2002 attack showed that the defendant, when affronted by a romantic partner, would call on male friends to help subdue the partner, as well as the 2003 vase-throwing incident with the defendant biting the victim, were both strikingly similar to the assault upon the defendant's boyfriend, which resulted in the boyfriend's death. Morgan v. State, 354 Ga. App. 754, 841 S.E.2d 430 (2020).
Evidence of prior acts admissible although defendant acquitted of bad acts.
- In the defendant's trial for the shooting death of a drug dealer, the trial court properly ruled that a prior similar incident was so similar that evidence showing the defendant's involvement in the prior incident was admissible under O.C.G.A. § 24-4-404(b), despite the defendant's acquittal of charges in that case; however, the trial court erred in excluding evidence of that victim's murder out of "an abundance of caution," which was not a ground for excluding evidence under O.C.G.A. § 24-4-403. State v. Atkins, 304 Ga. 413, 819 S.E.2d 28 (2018).
Admission of old voluntary manslaughter conviction.
- Trial court did not abuse the court's discretion by admitting evidence that defendant had pled guilty to voluntary manslaughter in 1997 because it was relevant to the issue of intent, which the state was required to prove for the malice murder charge. The trial court did not err by finding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice because the state had a high need for the evidence to counter the defense that defendant had been coerced into participating in the crimes, there were significant similarities between the crimes, and the defendant admitted to shooting the prior victim. Frazier v. State, Ga. , 845 S.E.2d 579 (2020).
Admission of prior incident for defendant found guilty but mentally ill of aggravated assault.
- When the defendant was found guilty but mentally ill on three counts of aggravated assault at the trailer park, the trial court did not err in admitting evidence of the 2008 incident at the trailer park, in which the defendant allegedly attempted to stop a domestic abuse situation by firing three shots outside of a neighbor's trailer over the span of several minutes, because the evidence was admissible as the defendant placed the defendant's intent at issue by pleading not guilty by reason of insanity. Bonner v. State, 351 Ga. App. 439, 830 S.E.2d 514 (2019), cert. denied, No. S19C1646, 2020 Ga. LEXIS 145 (Ga. 2020).
Evidence improperly admitted to show intent.
- In a malice murder and aggravated assault case, the trial court abused the court's discretion by admitting the defendant's 2006 convictions for aggravated assault for the purpose of showing intent because, by asserting self-defense, the defendant did not deny the intent to inflict injury, but claimed authority for the act under the legal excuse of reasonable fear of immediate serious harm to oneself or another; and because the prior aggravated assaults were clearly more prejudicial than probative as the fact that the defendant had committed an assault on another person nine years earlier had nothing to do with the defendant's reason for shooting the victim, and really had no purpose other than to show the defendant's propensity toward violence. Brown v. State, 303 Ga. 158, 810 S.E.2d 145 (2018).
Appellant's convictions for felony murder, aggravated assault, and knife-possession offenses were reversed because the Georgia Supreme Court could not say that the trial court's erroneous admission of the voluminous evidence that the appellant had previously committed multiple serious violent acts did not contribute to the guilty verdicts that the jury returned. Strong v. State, Ga. , 845 S.E.2d 653 (2020).
Admission of family fight over insurance.
- Trial court did not abuse the court's discretion in denying the defendant's motion for a mistrial after the prosecutor elicited the defendant's prior admissions that the defendant had the defendant's spouse killed in order to show that the defendant's children were involved in litigation over an insurance policy based on a legitimate desire to insure that the defendant was not rewarded for taking their mother from them because the defendant introduced the family fight over insurance proceeds, which were payable on the death of the defendant's spouse, in an effort to undercut the credibility of the defendant's children, who testified that the defendant admitted killing the victim. Cantera v. State, 304 Ga. App. 289, 696 S.E.2d 354 (2010) (decided under former O.C.G.A. § 24-2-2).
During the defendant's trial for felony murder, malice murder, aggravated assault, and possession of a firearm by a convicted felon, the trial court did not abuse the court's discretion in allowing the state to introduce evidence of the defendant's involvement in a prior shooting as a similar transaction based on the similarities that the defendant used a handgun, committed the offenses with little or no provocation, fled the scene, and attempted to cause serious injury or death in the same immediate location; the crimes need not be exactly alike for the crimes to be sufficiently similar. Evans v. State, 288 Ga. 571, 707 S.E.2d 353 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior domestic violence admissible to prove intent.
- In the defendant's trial for the murder of the defendant's girlfriend's 17-month-old daughter, the trial court did not err in admitting other-acts evidence under O.C.G.A. § 24-4-404(b) that showed the defendant's violent behavior toward the defendant's former spouses and their children because these violent acts proved intent and lack of mistake or accident. Intent was in issue because the defendant denied harming the victim. Naples v. State, 308 Ga. 43, 838 S.E.2d 780 (2020).
Evidence of gang activity and prior murders admitted after defendant opened door.
- In the appellant's murder trial, the state did not introduce two witnesses' police-interview statements regarding the appellant's gang activities and prior murders for any of the purposes listed in O.C.G.A. § 24-4-404(b), but rather to rebut the appellant's defense theory seeking to cast doubt on those witnesses' identification of the appellant as the shooter; therefore, the statements were not required to be excluded under § 24-4-404(b) and no pretrial notice was required. Strother v. State, 305 Ga. 838, 828 S.E.2d 327 (2019).
Similar transaction notice was sufficient.
- Similar transaction evidence was properly admitted because: (1) defendant's claim that the similar transaction notice was insufficient because the notice did not include a copy of the prior indictment was waived; (2) while the notice did not state the county involved and did not include the indictment, the failure of the state to attach copies of the indictment and to fully comply with Ga. Unif. Super. Ct. R. 31.3(B) did not require automatic reversal or exclusion of the similar transaction evidence, but was subject to testing for harm; and (3) the state served the indictment, verdict, and police report from the earlier attack on trial counsel more than a year before the trial took place. Moreover, any error in failing to attach the indictment to the notice was harmless because the indictment was otherwise provided in discovery long before trial. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-2-2).
Because the state provided notice to the defendant prior to trial that the state would use evidence of a prior incident at the trailer park to show intent, identity, absence of mistake or accident, and consciousness of guilt, the defendant's argument that the defendant did not receive proper notice was without merit. Bonner v. State, 351 Ga. App. 439, 830 S.E.2d 514 (2019), cert. denied, No. S19C1646, 2020 Ga. LEXIS 145 (Ga. 2020).
Evidence of prior difficulties between victim and defendant ought to be received carefully, and if there is no probative connection between the two, or the prejudice arising from the evidence far outweighs what probative value the evidence may have, the evidence ought not be admitted; but if there is any relevance, or in cases of doubt, the jury ought to hear the evidence and determine for itself the weight and credibility the evidence will be given. Barnes v. State, 157 Ga. App. 582, 277 S.E.2d 916 (1981) (decided under former Code 1933, § 38-202).
Trial court did not err in admitting the testimony of a long-time friend of the deceased wife about prior difficulties the deceased wife and defendant had, as evidence of defendant's prior acts toward the victim, the deceased wife, was admissible. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119 (2003) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in permitting a witness to testify about the decedent victim's statement concerning defendant's prior acts of abuse as testimony about prior difficulties between the defendant and a victim was admissible at trial to show the nature of their relationship and to demonstrate motive, intent, or bent of mind of the defendant in committing the act. Banegas v. State, 283 Ga. App. 346, 641 S.E.2d 593 (2007) (decided under former O.C.G.A. § 24-2-2).
Evidence plainly was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault with a deadly weapon in violation of O.C.G.A. § 16-5-21(a)(2) and battery in violation of O.C.G.A. § 16-5-23.1(a) because the state presented more than ample evidence that the defendant's use of force was not justified under O.C.G.A. § 16-3-21(a); the prior and subsequent difficulties evidence and the similar transaction evidence the state presented supported the jury's decision to give little credence to the defendant's self-defense claim. Whitley v. State, 307 Ga. App. 553, 707 S.E.2d 375 (2011) (decided under former O.C.G.A. § 24-2-2).
There was no reversible error, much less any "plain error" pursuant to O.C.G.A. § 17-8-58(b), in the trial court's decision to give a prior difficulties charge to the jury because evidence was presented regarding prior difficulties between the defendant and the victim, and thus, the inclusion of a prior difficulties charge did not constitute an impermissible comment on the evidence; the defendant testified that the defendant and the victim "had problems" on more than one occasion, that the victim had called the police because of those problems "a few times," and that the defendant's mother had helped the defendant move out of the victim's house once before, telling the victim not to let the defendant move back in. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence of drug use.
- Trial court did not err in admitting into evidence defendant's unredacted taped statement to police in a case in which defendant was ultimately convicted of malice murder; even though the statement contained evidence that defendant was under the influence of drugs at the time the crime was committed, such evidence was deemed part of the res gestae and was admissible as such even though the statement incidentally placed defendant's character in evidence. Cunningham v. State, 279 Ga. 694, 620 S.E.2d 374 (2005) (decided under former O.C.G.A. § 24-2-2).
Prior use of a firearm.
- Trial court did not err in admitting evidence of defendant's conviction several years earlier for voluntary manslaughter as evidence of the prior conviction was admissible as substantive evidence of defendant's guilt on the current charge against defendant of possession of a firearm by a convicted felon. Laster v. State, 276 Ga. 645, 581 S.E.2d 522 (2003) (decided under former O.C.G.A. § 24-2-2).
Prior threat to kill another.
- Witnesses testimony that defendant had recently come to the witnesses' residences in an intoxicated state and threatened the witnesses by pointing a loaded, cocked shotgun at the witnesses was admissible to show a common course of conduct and state of mind of the defendant in a time frame substantially close to the date on which the murder occurred. Hooks v. State, 253 Ga. 141, 317 S.E.2d 531 (1984) (decided under former O.C.G.A. § 24-2-2).
In a murder case, the trial court did not err when the court limited the defendant's cross-examination of a co-conspirator because evidence that the co-conspirator had told a detective that the co-conspirator was going to kill the man who caused the co-conspirator to be arrested based on a prior criminal act was inadmissible as the desire to seek violent retribution against another person on another occasion was not logically relevant and necessary to establish motive; and there was no evidence that the victim in the current case was killed as retribution for anything. Carpenter v. State, 305 Ga. 725, 827 S.E.2d 250 (2019), cert. denied, 140 S. Ct. 476, 2019 U.S. LEXIS 6640, 205 L. Ed. 2d 282 (U.S. 2019).
Admission of evidence of subsequent shooting involving defendant harmless error.
- Assuming without deciding that the admission of the other acts evidence that the defendant was involved in a second shooting approximately a month after the murders was erroneous, any error was harmless as the evidence of the defendant's guilt was strong because the defendant was identified as the shooter by the surviving victim; the defendant was discovered with the murder weapon while driving a vehicle that had been spotted leaving the murder scene by a second witness; the defendant's mother resembled the description of the woman driving the car on the night in question; and the defendant's mother's cell phone, which the defendant was known to share with the defendant's mother, was in the vicinity of the shooting on the night in question. Douglas v. State, 303 Ga. 178, 811 S.E.2d 337 (2018).
Admission of evidence of defendant's prior involuntary manslaughter conviction was harmless error.
- Assuming (without deciding) that the trial court was correct in concluding that the similar transaction evidence of the 2002 incident in which the defendant pled guilty to involuntary manslaughter after being involved in a drug deal and shooting that resulted in the death of an innocent female bystander should not have been admitted at trial, the admission of that evidence was harmless, in that it was highly probable that the assumed error did not contribute to the verdict as there was overwhelming evidence of the defendant's guilt of the crimes charged in the current case; thus, it was not an abuse of discretion for the trial court to decline to grant a mistrial when the evidence was harmless. Saffold v. State, 298 Ga. 643, 784 S.E.2d 365 (2016).
Admission of other acts evidence in murder trial constituted harmless error.
- When the defendant was convicted of, inter alia, malice murder, although other acts evidence might have been improperly admitted, any error was harmless because, considering the quantity and strength of the evidence against the defendant, it was highly probable that any error did not contribute to the verdict as the defendant was heard by multiple people threatening the lives of the victims the night of the murders; the defendant made numerous incriminating statements after the murders - some of which concerned information only the killer could have known; and the defendant's jailhouse confession was both detailed and consistent with the defendant's statements to other parties before the murders. Fletcher v. State, 303 Ga. 43, 810 S.E.2d 101 (2018).
Any error in the admission of evidence regarding the defendant's violent acts against an ex-girlfriend were harmless because the evidence against the defendant was overwhelming, including the medical examiner's testimony that the victim's injuries were the result of blunt force trauma and strangulation, the victim was found in the apartment the victim shared with the defendant with the door locked and no sign of forced entry, and DNA supported the state's position that the defendant inflicted the victim's injuries. Moore v. State, 307 Ga. 290, 307 Ga. 290, 835 S.E.2d 610 (2019).
Trial court abused the court's discretion admitting 2005 shooting evidence of the appellant's firing a handgun, but that error was harmless in light of the array of other strong evidence demonstrating the appellant's guilt and considering it was an evidentiary error and not of constitutional dimensions; given the overall strength of the other evidence of the appellant's guilt, the Georgia Supreme Court held that it was highly probable that erroneously admitted evidence of the 2005 shooting did not contribute to the jury's verdict. Jackson v. State, 306 Ga. 69, 829 S.E.2d 142 (2019).
Assuming without deciding that the trial court abused the court's discretion in admitting evidence that the defendant abused an ex-wife more than 20 years before the victim's death, such error was harmless and did not require reversal as it was highly improbable the outcome would not have been different given that the forensic evidence indicated that the defendant shot the victim, attempted to cover up the crime, and then fabricated a story to the police that the victim committed suicide. Davenport v. State, Ga. , 846 S.E.2d 83 (2020).
Any error in the admission of prior acts evidence was harmless in light of the overwhelming evidence of guilt. Walker v. State, 306 Ga. 44, 829 S.E.2d 121 (2019).
Trial court properly admitted similar transaction evidence to show a defendant's course of conduct and intent.
- With regard to a defendant's conviction for the malice murder of the defendant's husband, the trial court did not err in admitting evidence of a similar transaction as to the defendant poisoning a boyfriend with antifreeze via being fed green Jell-O because the defendant was intimate with both victims; both men went to the hospital complaining of flu-like symptoms soon before each man died; both men died from the unique cause of antifreeze poisoning; the defendant was the last person to see either man alive; both men died soon after the defendant served them Jell-O; and the defendant, who had financial problems before the deaths of both men, collected substantial money in connection with each man's death. Turner v. State, 281 Ga. 647, 641 S.E.2d 527 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting a prior shooting as similar transaction evidence because the trial court admitted the evidence for the limited, proper purpose of establishing the defendant's bent of mind and course of conduct and instructed the jury on several occasions to consider it for this purpose alone; both the prior shooting and the crime for which the defendant was convicted involved nighttime shootings occurring less than two weeks apart, wherein a man emerged from a gold car in the parking lot of an apartment complex and opened fire with little apparent provocation. Johnson v. State, 289 Ga. 22, 709 S.E.2d 217 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence was sufficient to support defendant's conviction for malice murder because the defendant hit the victim with a baseball bat during the course of an argument over a drug transaction, and an incident that occurred when the defendant was a juvenile was properly admitted to show course of conduct and bent of mind. Jackson v. State, 291 Ga. 54, 727 S.E.2d 454 (2012) (decided under former O.C.G.A. § 24-2-2).
Guilty plea to earlier offense properly admitted.
- In the malice murder and armed robbery case, the trial court did not err under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) in admitting into evidence the defendant's guilty plea to an earlier robbery; the crimes were close in time, two years apart, each involved the morning robbery of a lone male at a convenience store, and in both robberies, the robbery was accomplished with a weapon other than a firearm, a borrowed vehicle was used, money was taken from the register, and the employee was forcibly moved around the store. Daniels v. State, 281 Ga. 226, 637 S.E.2d 403 (2006) (decided under former O.C.G.A. § 24-2-2).
Trial court properly admitted similar transaction evidence: in both incidents, which occurred seven months apart, the defendant had a verbal disagreement with young unarmed males, demanded that they leave the premises, and when they refused to comply, retrieved a particular make of weapon and fired it at or near the victims, then calmly walked inside. Johnson v. State, 289 Ga. App. 435, 657 S.E.2d 333 (2008) (decided under former O.C.G.A. § 24-2-2).
In a prosecution for felony murder, armed robbery, and burglary, it was not error to admit evidence of an armed robbery that the defendant and the codefendant committed two weeks before the charged crimes as the trial court's conclusion that the two crimes were sufficiently similar was not clearly erroneous. Jackson v. State, 284 Ga. 484, 668 S.E.2d 700 (2008) (decided under former O.C.G.A. § 24-2-2).
In a malice murder prosecution when the victim was violently stabbed and severely beaten, evidence that an officer saw the defendant violently attack an acquaintance as the result of a minor disagreement was properly submitted as a similar transaction to show the defendant's bent of mind and course of conduct. Dixon v. State, 285 Ga. 312, 677 S.E.2d 76 (2009), overruled on other grounds, 287 Ga. 242, 695 S.E.2d 255 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court acted within the court's discretion in finding that a sufficient similarity existed between a prior transaction and family violence battery, O.C.G.A. § 16-5-23.1(f), so that proof of the former tended to prove the latter because in both instances the defendant became enraged and reacted impulsively and aggressively in response to a perceived challenge from a woman, and the prior transaction tended to disprove the defendant's claim of self-defense. Jones v. State, 316 Ga. App. 442, 729 S.E.2d 578 (2012) (decided under former O.C.G.A. § 24-2-2).
Admission of unrelated criminal incidents involving the defendant's former girlfriend was not erroneous because there was unquestionably similarity between the incidents, including that the incidents all involved the defendant reacting violently with a weapon and inflicting physical injury when the defendant believed the defendant's authority was challenged by a female with whom the defendant once had a romantic relationship. Faniel v. State, 291 Ga. 559, 731 S.E.2d 750 (2012) (decided under former O.C.G.A. § 24-4-6).
Evidence improperly admitted to show course of conduct.
- In a home invasion, although course of conduct was no longer a viable exception to the admissibility of other acts, and the trial court erred in admitting the defendant's 1989 convictions for that purpose, the defendant's current convictions did not need to be reversed because the trial court's error in admitting the defendant's prior convictions was harmless, given the overwhelming evidence of the defendant's guilt, including that the defendant and an accomplice planned and committed the home invasion together, and that, when found by a deputy the day after the offense near the woods around the victim's residence, the defendant gave the deputy a false name, and then ran from the deputy to dispose of the gun used in the home invasion. Paschal v. State, 335 Ga. App. 411, 780 S.E.2d 681 (2015).
Evidence improperly admitted to show plan.
- Defendant was granted a new trial because the evidence of a subsequent armed robbery was not admissible to show motive since that later act was not connected to the murders, and the only similarities it shared with the murders were the all-too-common elements of guns and an assortment of co-conspirators. Thompson v. State, 302 Ga. 533, 807 S.E.2d 899 (2017).
In a malice murder and aggravated assault case, the defendant's 2006 convictions for aggravated assault were improperly admitted because the convictions did not tend to establish a larger goal, the convictions were not so connected with the crime charged that the murder could not be fully shown without proving the prior assaults, and the convictions were not relevant to the ultimate issue of whether the defendant acted in self-defense; furthermore, the evidence primarily established the defendant's propensity toward violence. Brown v. State, 303 Ga. 158, 810 S.E.2d 145 (2018).
Incident occurring eight years ago admitted.
- Trial court properly allowed similar transaction evidence in the defendant's trial for malice murder, O.C.G.A. § 16-5-1(b), to show course of conduct; the defendant, who was working as a security officer at a government building was charged with attacking a coworker without provocation. The state was permitted to present evidence of a similar transaction from eight years earlier in which the defendant, wearing the uniform of a security guard, ran down the stairs of a train station to the platform, grabbed a man awaiting the arrival of a train, beat and kicked the victim, threw the victim on the train tracks, and when the victim climbed back on the platform, the defendant resumed beating and kicking the victim until transit police arrived. Hicks v. State, 285 Ga. 386, 677 S.E.2d 111 (2009) (decided under former O.C.G.A. § 24-2-2).
Testimony as to circumstances connected with the accused's arrest admissible.
- Because the police found weapons in defendant's car, after obtaining consent to search, when the police arrested defendant for stalking, the evidence was properly admitted in defendant's subsequent trial for burglary and aggravated assault to show the circumstances connected with the stalking arrest. Blackwell v. State, 274 Ga. App. 579, 618 S.E.2d 190 (2005) (decided under former O.C.G.A. § 24-2-2).
Identity, motive, malice, intent, plan, scheme, bent of mind, and course of conduct.
- Admission of evidence that defendant committed a prior crime was proper pursuant to former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) when the defendant was on trial for having pursued defendant's former girlfriend in defendant's car, threatening to kill her because they broke up, and shooting at her, and there was evidence from a prior crime that the defendant had taken the same type of action against another former girlfriend; the court found that such evidence was properly admitted in order to prove identity, course of conduct, intent, and motive because there was obvious similarity between the crimes and the methods in which the crimes were carried out. Morris v. State, 263 Ga. App. 115, 587 S.E.2d 272 (2003) (decided under former O.C.G.A. § 24-2-2).
When the defendant was accused of the malice murder of the mother of defendant's child, the trial court did not err in admitting testimony about an earlier statement where the defendant said that the defendant would have shot the victim and the victim's male companion had the defendant's gun not jammed; such evidence was proper to show motive, intent, and bent of mind. Lowery v. State, 282 Ga. 68, 646 S.E.2d 67, cert. denied, 552 U.S. 999, 128 S. Ct. 508, 169 L. Ed. 2d 355 (2007) (decided under former O.C.G.A. § 24-2-2).
Evidence admissible to prove intent and absence of accident or mistake.
- Extrinsic acts evidence from two women who dated the defendant, one before and one after the victim's death, was admissible to prove intent and absence of accident or mistake. McWilliams v. State, 304 Ga. 502, 820 S.E.2d 33 (2018).
Similar transaction evidence admissible.
- When the defendant pointed a gun at the victim twice after the victim flicked a cigarette that landed on the defendant's car seat, the trial court properly admitted similar transaction evidence that two days before the incident, the defendant pointed a gun at the chest of a teenager who was wearing a T-shirt with a message that the defendant did not like. Moore v. State, 286 Ga. App. 313, 649 S.E.2d 337 (2007) (decided under former O.C.G.A. § 24-2-2).
In a trial for arson, burglary, and malice murder, the trial court properly admitted similar transaction evidence of a fire at the defendant's former home to show motive and course of conduct; before each incident, the defendant acted in a suspicious manner with regard to the fire, both fires occurred at homes to which the defendant had access, and the defendant had incurred substantial debt before each fire and reaped a financial benefit as a result of each fire. Bryant v. State, 282 Ga. 631, 651 S.E.2d 718 (2007) (decided under former O.C.G.A. § 24-2-2).
In a malice murder case, a voluntary manslaughter conviction was properly admitted as similar transaction evidence since in both cases defendant knew the victim and obtained the weapon from the victim, both incidents arose from arguments with the victim and resulted in the victim being struck or shot in the head, neither victim was able to defend against the attack, and in both cases the defendant attempted to conceal evidence. Harvey v. State, 284 Ga. 8, 660 S.E.2d 528 (2008) (decided under former O.C.G.A. § 24-2-2).
In a murder and aggravated assault prosecution, the trial court properly admitted similar transaction evidence for the limited purposes of showing motive, state of mind, bent of mind, course of conduct, and plan or scheme, as the similar transaction and the crimes for which the defendant was on trial occurred in very close proximity, in time and location, and each involved the defendant using a handgun to shoot an unsuspecting victim without provocation. Abdullah v. State, 284 Ga. 399, 667 S.E.2d 584 (2008) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in admitting similar transaction evidence from the defendant's ex-wife and ex-girlfriends because the evidence was sufficient to establish the required similarity between the charged crime and the assaults the defendant inflicted on the ex-wife and ex-girlfriends; both the prior transactions and the murder at issue involved violent assaults by the defendant against women with whom the defendant was intimately involved, and the evidence established the defendant's pattern of choking the defendant's lovers, beating the lovers, and threatening the lovers with a knife. Wheeler v. State, 290 Ga. 817, 725 S.E.2d 580 (2012) (decided under former O.C.G.A. § 24-2-2).
Evidence relating to a North Carolina traffic stop and seizure of currency was properly admissible as the stop, also involving both defendants, a car registered in Massachusetts, with dark tinted windows, a single key in the ignition, religious insignias throughout, and a hidden compartment with shrink-wrapped items, was sufficiently similar that proof of that incident tended to prove the current incident. Betancourt v. State, 322 Ga. App. 201, 744 S.E.2d 419 (2013).
In the defendant's trial for the murder of the defendant's former girlfriend, the defendant's 15-year-old conviction for an attack on another girlfriend was admissible to show identity under O.C.G.A. § 24-4-404(b): in both cases, the victim was dragged off a walkway into nearby bushes and choked, and both victims had dated the defendant and had recently ended the relationship. McKinney v. State, 307 Ga. 129, 834 S.E.2d 741 (2019).
Evidence of similar or connected sexual offenses against children.
- Trial counsel was not ineffective for failing to object to testimony that the defendant could have molested the victim's brother because the evidence included more than just the allegations made in the initial outcry; thus, the defendant failed to show a reasonable probability that the outcome of the trial would have been more favorable to the defendant had the testimony been excluded. Henry v. State, 316 Ga. App. 132, 729 S.E.2d 429 (2012) (decided under former O.C.G.A. § 24-2-2).
Evidence of six prior incidents of assaulting young African-American sex workers admissible.
- In defendant's prosecution for the strangulation death of the victim at the victim's home, six similar transactions between 1991 and 2005 were admissible: in each case, the victims were young African-American women who either were sex workers or had substance abuse problems, or both, and the victims were sexually or physically abused, often by choking. The sheer number of the incidents did not preclude their admissibility. Dillard v. State, 297 Ga. 756, 778 S.E.2d 184 (2015)(decided under former law).
Evidence of a subsequent successful conspiracy by defendant to murder her husband had a logical connection to the crime for which she was being tried, a separate conspiracy to murder him. Such evidence tends to show intent and state of mind, and certainly tends to establish conspiracy to murder the same victim. Buffington v. State, 171 Ga. App. 919, 321 S.E.2d 418 (1984) (decided under former O.C.G.A. § 24-2-2).
Domestic abuse evidence admitted.
- In the defendant's trial for the murder of a former girlfriend's 13-month-old daughter, evidence that the defendant had abused the child's mother was not introduced for one of the purposes listed in O.C.G.A. § 24-4-404(b), but rather to show the mother's bias under O.C.G.A. § 24-6-622, which allowed evidence of a witness's feelings towards the parties and the witness's relationship to the parties. Virger v. State, 305 Ga. 281, 824 S.E.2d 346 (2019).
Impeachment of defendant's specific testimony by contradictory evidence.
- While the impeachment of a defendant's general credibility by proof of general bad character and of prior convictions is prohibited, impeachment of the specific testimony of a criminal defendant (e.g., "I never hurt nobody") may be accomplished by testimony that defendant did, in fact, hurt another, or by a certified copy of a conviction for a crime of physical violence. Williams v. State, 257 Ga. 761, 363 S.E.2d 535 (1988) (decided under former O.C.G.A. § 24-2-2).
Defense counsel's failure to object to evidence that a burglar alarm went off at the house where defendant was arrested shortly before the defendant was arrested was not ineffective assistance of counsel because even if this evidence improperly placed defendant's character into evidence, contrary to former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), there was no reasonable probability that defendant would have been acquitted, given the strength of other evidence against the defendant. Patterson v. State, 274 Ga. App. 341, 618 S.E.2d 81 (2005) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior obstruction of police officers admissible.
- After defendant struck and pushed an officer, and fought with another officer who attempted to arrest defendant the trial court did not abuse the court's discretion in admitting evidence of a similar transaction because, in both incidents, defendant refused to comply with law enforcement officers' instructions, cursed at the officers, and physically resisted by struggling with the officers; the similar transaction evidence showed a course of conduct in resisting law enforcement officers in the performance of their duties and was relevant to rebut defendant's claim of justification. Harris v. State, 276 Ga. App. 234, 622 S.E.2d 905 (2005) (decided under former O.C.G.A. § 24-2-2).
Victim's prior convictions not admissible.
- Counsel was not ineffective for failing to present evidence that the first victim had a criminal history and was a gang member as the defendant did not come forward with any evidence that the first victim was ever in a gang; the defendant did not show that any of the first victim's prior convictions would have been admissible; and the first victim's prior convictions would not have been admissible to show the defendant's state of mind or the reasonableness of the defendant's conduct as the defendant was not aware of those convictions at the time of the shootings. Wofford v. State, 305 Ga. 694, 827 S.E.2d 652 (2019).
Evidence admissible on assault and battery claim.
- With regard to a former employee's assault and battery claim, a trial court erred in excluding evidence of a dentist's prior threats to kill the dentist's spouse and children and of the dentist pushing a 13-year-old patient after the patient had allegedly been rude to the dentist; the evidence was admissible given that the dentist was alleged to have assaulted the employee and threatened to kill the employee. Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (2008) (decided under former O.C.G.A. § 24-2-2).
Evidence of defendant's prior assault on victim.
- In a prosecution against a defendant for aggravated assault upon defendant's spouse, evidence that defendant had earlier committed an assault upon the spouse was admissible to demonstrate defendant's intent or bent of mind. Roberson v. State, 180 Ga. App. 406, 349 S.E.2d 39 (1986) (decided under former O.C.G.A. § 24-2-2).
In a prosecution against a defendant for aggravated assault on defendant's girlfriend, evidence that the defendant had previously attacked her with a machete was admissible. Smith v. State, 232 Ga. App. 290, 501 S.E.2d 523 (1998) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying defendant's motion to suppress certain testimony about prior difficulties that had occurred between defendant and the murder victim as such evidence was relevant to the relationship between the victim and defendant, and was admissible to show defendant's motive, intent, and bent of mind in murdering the victim. Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (2004) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion by admitting a witness's testimony about the defendant's beating of the murder victim at a store and the surveillance video of the incident because the video shed light on the nature of the parties' relationship and on the defendant's potential motive in shooting the victim eight days later. Flowers v. State, 307 Ga. 618, 837 S.E.2d 824 (2020).
Evidence of victim's gang membership properly excluded.
- Trial court did not commit plain error by excluding evidence that the first victim was a member of a street gang because any such affiliation was irrelevant and had no connection to the shooting; and the defendant provided nothing to indicate that the motivation for the shooting, or anything related to the shooting for that matter, was related to street gang activity. Walton v. State, 303 Ga. 11, 810 S.E.2d 134 (2018).
Evidence not related to issues excluded.
- In a voluntary manslaughter case, a photograph portraying the victim's use of obscene hand gestures, a photograph portraying the victim's display of what appeared to be two partially consumed bottles of beer, and photographs portraying the victim's obscene consumption of a cake baked in the likeness of a nude woman were properly excluded because the photographs were not relevant to the issues being tried and not relevant to defendant's claim of self-defense. Guy v. State, 204 Ga. App. 228, 418 S.E.2d 778, cert. denied, 204 Ga. App. 921, 418 S.E.2d 778 (1992) (decided under former O.C.G.A. § 24-2-2).
Evidence not relevant.
- In a malice murder and aggravated assault case, because the defendant never claimed, nor was there any evidence to suggest, that the shooting was the result of an accident or mistake, whether the defendant's actions were the result of an accident or mistake was irrelevant, and it was error for the trial court to admit the 2006 guilty pleas to aggravated assault. Brown v. State, 303 Ga. 158, 810 S.E.2d 145 (2018).
Evidence of a prior violent act.
- Trial court did not err in admitting evidence of defendant's conviction for manslaughter since the plaintiff contended that the defendant made a violent, malicious, and unwarranted attack on the plaintiff, as it went to the issue of defendant's bent of mind, habit, and course of conduct. Dimarco's, Inc. v. Neidlinger, 207 Ga. App. 526, 428 S.E.2d 431 (1993) (decided under former O.C.G.A. § 24-2-2).
In a prosecution for battery, evidence of the victim's prior acts of violence and convictions for battery was properly excluded as the defendant failed to make a prima facie showing of justification. There was no evidence that the victim attacked the defendant, and the testimony of the victim's former romantic companion indicated that the defendant could not have seen the victim's alleged attack on the companion. Frasier v. State, 295 Ga. App. 596, 672 S.E.2d 668 (2009) (decided under former O.C.G.A. § 24-2-2).
Trial court's determination that the state met the requirements for admission of similar transaction evidence was not an abuse of discretion because evidence that the defendant used violence against an adult with whom the defendant had a close, loving relationship was admissible to show the defendant's bent of mind in using violence against a member of the defendant's family, even though the family member was a mere infant, and even though the family member suffered internal, rather than external, injuries. Brinson v. State, 289 Ga. 150, 709 S.E.2d 789 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err by admitting evidence of the defendant's prior difficulty in which the defendant squeezed and threw the defendant's baby because the prior difficulty evidence was properly admitted to show the defendant's bent of mind towards and course of conduct with the baby; even if similarity were an issue, both the prior difficulty and the crimes for which the defendant was being tried involved inappropriate squeezing of the baby. Stokes v. State, 289 Ga. 702, 715 S.E.2d 81 (2011) (decided under former O.C.G.A. § 24-2-2).
Admission of photographs posted on Facebook.
- Even if the trial court erred in admitting the three photographs posted to Facebook showing the defendant with handguns in the defendant's felony murder trial, the error was harmless because the State presented strong independent evidence of the defendant's guilt as a party to the felony murder, including a photo depicting the defendant holding the handgun used in the murder and that the defendant's phone was used to order the pizza the victim attempted to deliver. Lofton v. State, Ga. , 846 S.E.2d 57 (2020).
Admission of previous murder improperly admitted.
- In a murder case, under the new evidence code, the trial court erred in admitting the other acts evidence that the defendant and an accomplice murdered a Mississippi state trooper in 1983 because evidence of the Mississippi murder was not admissible to prove identity or motive as the crimes were not so similar as to mark the murders as the handiwork of the defendant; the dissimilarities were stark and militated against the supposition that the murders were committed by the same person; the evidence of the Mississippi murder during a prison escape was unrelated and unnecessary to prove why the defendant murdered a security guard in the course of a theft seven years earlier; and admission of the evidence was not harmless. Brooks v. State, 298 Ga. 722, 783 S.E.2d 895 (2016).
Admission of prior aggravated assault conviction error.
- In a malice murder and aggravated assault case, the admission of the defendant's 2006 convictions for aggravated assault did not constitute harmless error as the evidence underlying the defendant's guilt was not overwhelming, and there was ample conflicting evidence concerning whether the defendant acted in self-defense. Brown v. State, 303 Ga. 158, 810 S.E.2d 145 (2018).
Evidence of other conduct or crimes was admissible.
- Defendant's aggravated assault conviction was upheld on appeal, as the victim's identification of the defendant as the perpetrator was sufficient evidence to uphold the conviction, and evidence of a subsequent altercation between the two, like evidence of a prior difficulty, was probative evidence that the victim immediately identified the defendant to police on the day of the incident. Bond v. State, 283 Ga. App. 620, 642 S.E.2d 223 (2007) (decided under former O.C.G.A. § 24-2-2).
In an aggravated assault case, since there was evidence that the victim's injuries were consistent with the use of a sharp instrument, similar transaction evidence of attacks with a box cutter and with a knife during altercations was not admitted for an improper purpose. The evidence was admissible to show the defendant's bent of mind and course of conduct. Miller v. State, 292 Ga. App. 641, 666 S.E.2d 35 (2008), cert. denied, 2008 Ga. LEXIS 903 (Ga. 2008) (decided under former O.C.G.A. § 24-2-2).
In a malice murder prosecution, the trial court did not abuse the court's discretion in admitting testimony concerning the violent relationship between the defendant and the victim (the defendant's paramour), and the marks and scratches witnesses saw on the victim's body as the testimony qualified as prior difficulties or similar transaction evidence. Smith v. State, 284 Ga. 304, 667 S.E.2d 65 (2008) (decided under former O.C.G.A. § 24-2-2).
Defendant was convicted of voluntary manslaughter for fatally stabbing the defendant's spouse. A witness's testimony at a Ga. Unif. Super. Ct. R. 31.3(B) hearing that the defendant had threatened the witness with a knife was sufficient to establish the commission of the prior act, and as the prior act was sufficiently connected to the charged crime, the testimony was properly admitted at trial. McKenzie v. State, 294 Ga. App. 376, 670 S.E.2d 158 (2008) (decided under former O.C.G.A. § 24-2-2).
Evidence of the defendant's prior participation in crimes in which the co-defendant shot a man in order to steal the man's car was admissible to show that the defendant had knowledge of, and shared, the co-defendant's criminal intent in the instant case. Brannon v. State, 298 Ga. 601, 783 S.E.2d 642 (2016).
Evidence of an earlier altercation between the defendant and a former girlfriend was admissible in the aggravated assault of the victim, the former girlfriend's brother, because the state of mind required for the charged offense of aggravated assault against the victim was the same as the state of mind required for the uncharged act against the former girlfriend, which could have constituted an aggravated assault; the other act was probative of the issue of the defendant's intent, which defense counsel argued to the jury was the biggest issue in the case; and the evidence was sufficient to show that the prior bad act occurred and that the defendant was the person who accosted and threatened the former girlfriend with the knife. Wilson v. State, 336 Ga. App. 60, 783 S.E.2d 662 (2016).
Contention that the trial court abused the court's discretion when the court admitted evidence concerning the defendant's prior assaults on other women required further consideration in light of the supreme court's clarification of the law, including that the defendant's not guilty plea put the prosecution's burden of proving every element of the crime, including intent, evidence of other acts that tends to make the requisite intent more or less probable to any extent is relevant. Olds v. State, 299 Ga. 65, 786 S.E.2d 633 (2016).
Testimony regarding similar transactions that occurred years earlier was properly admitted as it was relevant to show the defendant's lustful disposition with respect to preteen or teenaged girls and the defendant's pattern of molesting young girls with whom the defendant was living. Harris v. State, 340 Ga. App. 865, 798 S.E.2d 498 (2017).
Trial court did not err by allowing the state to introduce evidence the defendant previously pointed a gun at a former girlfriend because that evidence was relevant to intent and identity. Vass v. State, 347 Ga. App. 535, 820 S.E.2d 181 (2018).
Trial court did not err in admitting other-acts testimony of the defendant's stepchildren and daughter because the defendant's intent to commit aggravated assault against the victim, the predicate felony for felony murder, was an issue after the defendant told police that the defendant had never harmed the victim but suggested the victim's injuries resulted from accidental falls, and the defendant pled not guilty, and the testimony showed the defendant's same intent to commit aggravated assault against the wife and other family members. Thompson v. State, Ga. , 843 S.E.2d 794 (2020).
Evidence of other conduct or crimes of a witness was inadmissable.
- Trial court did not err in excluding evidence that a witness and a friend had been involved in a separate crime because absent any competent evidence showing that a witness and a friend had actually committed a prior crime, the defendant failed to meet the burden of showing that evidence of the prior crime was admissible. Redinburg v. State, 315 Ga. App. 413, 727 S.E.2d 201 (2012) (decided under former O.C.G.A. § 24-2-2).
Error in admitting similar transaction evidence required reversal.
- While state presented sufficient evidence of the victim's age to support assault charge under O.C.G.A. § 16-5-21(a)(1), because the trial court clearly erred in admitting evidence of two burglaries defendant committed in 1998 as similar transactions to help prove the issue of identity, defendant's aggravated assault, burglary, robbery, theft, and battery convictions were reversed. Usher v. State, 290 Ga. App. 710, 659 S.E.2d 920 (2008) (decided under former O.C.G.A. § 24-2-2).
Other sexual offense relevant for sentencing.
- Trial court properly refused to deviate from the mandatory minimum sentence for child molestation under O.C.G.A. § 17-10-6.2(c)(1)(C) because the court found the defendant's conviction for sexual exploitation of children was a relevant similar transaction and the phrase relevant similar transaction under § 17-10-6.2(c)(1)(C) included a conviction for a sexual offense charged within the same indictment as the offense for which a deviation from the mandatory minimum sentence was considered. Evans v. State, 334 Ga. App. 104, 778 S.E.2d 360 (2015), aff'd, 300 Ga. 271, 794 S.E.2d 40 (Ga. 2016).
Admission of similar transaction evidence proper in kidnapping case.
- Defendant's convictions for kidnapping, attempted kidnapping, and criminal trespass were erroneously reversed as the fact that the state did not file criminal charges against the defendant based directly on three prior pool incidents with young children did not mean that those incidents were non-criminal or not indicative of the defendant's state of mind. State v. Ashley, 299 Ga. 450, 788 S.E.2d 796 (2016).
Linking in time and circumstances with charged crime.
- Any evidence regarding the taking of the victim's purse was linked in time and circumstances with the charged crime and was properly admitted with respect to non-time-barred charges against the defendant. Tyner v. State, 305 Ga. 326, 825 S.E.2d 129 (2019).
Notice not required for uncharged wrong.
- When the defendant was convicted of felony murder, aggravated assault, and possession of a firearm during the commission of a felony, the testimony of two witnesses who stated that the defendant threatened to kill the victim's brother if the victim's brother disciplined the defendant's granddaughter was admissible as intrinsic evidence, bearing directly on the charged conduct, and was not subject to the notice requirements for an uncharged wrong. Wimberly v. State, 302 Ga. 321, 806 S.E.2d 599 (2017).
Highly probable that error in admitting evidence did not contribute to verdict.
- In a malice murder case, even assuming that the trial court abused the court's discretion in permitting the defendant's ex-wife to testify regarding the defendant's alleged prior bad acts of restraining the ex-wife, punching or breaking things in the ex-wife's vicinity to scare the ex-wife, engaging in surveillance and tracking, and manipulating the ex-wife, it was highly probable that the error did not contribute to the verdict because there was already extensive evidence concerning similar behavior with respect to the victim, as well as the volatility of the defendant's marriage to the victim. Leili v. State, 307 Ga. 339, 834 S.E.2d 847 (2019).
b. Robbery, Burglary, and Theft Crimes
Admission of similar transaction evidence proper.
- In a prosecution involving a murder and robbery at a convenience store, the trial court properly admitted similar transaction evidence of an attempted robbery of a fast-food restaurant. In each case, the defendant recruited another person from the same house for assistance, wore a mask, carried a .9mm pistol, and committed the crimes early in the morning. Judkins v. State, 282 Ga. 580, 652 S.E.2d 537 (2007) (decided under former O.C.G.A. § 24-2-2).
In an armed robbery case, the trial court properly admitted evidence of a prior armed robbery. The similar transaction was offered to prove course of conduct, state of mind, and the defendant's intent; a certified copy of the defendant's conviction was offered; and the prior robbery took place the day before the robbery at issue and like the present robbery involved a victim being robbed of money at gunpoint while at work. Deloatch v. State, 296 Ga. App. 65, 673 S.E.2d 576 (2009) (decided under former O.C.G.A. § 24-2-2).
Defendant was charged of robbing a store clerk at knife-point. Evidence presented at a Ga. Unif. Super. Ct. R. 31.3(B) hearing that, on the day after this robbery, the defendant robbed a second clerk at knife-point, was properly admitted as similar transaction evidence; the fact that the trial on the second robbery was pending afforded no basis to exclude the evidence. Hill v. State, 298 Ga. App. 677, 680 S.E.2d 702 (2009) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting similar transaction evidence because the prior armed robbery victim's identification of the defendant as one of the robbers was based on an investigating officer's personal knowledge; a second police officer's testimony that the officer had arrested a man with the same name as the defendant with a date of birth of February 23, 1984, was sufficient circumstantial evidence that the defendant committed a motor vehicle theft in 1998. Smith v. State, 304 Ga. App. 708, 699 S.E.2d 742 (2010), overruled on other grounds, Reed v. State, 291 Ga. 10, 727 S.E.2d 112 (2012) (decided under former O.C.G.A. § 24-2-2).
Given the similarities between the theft of a car and the theft of a second vehicle only hours after the car was stolen, evidence of either theft would be admissible as a similar transaction of the other to show bent of mind, intent, and course of conduct; both crimes occurred in the same city and on the same date, both involved the theft of foreign-made, mid-size sedans, and the state presented evidence from which the jury could infer that, like the car, the keys had been left in the second vehicle at the time the car was stolen, and the keys from both cars were missing when the cars were recovered. Ferguson v. State, 307 Ga. App. 232, 704 S.E.2d 470 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in permitting testimony and argument about a prior robbery at a video store because evidence relating to the first crime was not wholly unrelated to the charged crimes, nor was the evidence so remote in time as to make the evidence inadmissible; an officer's business card containing information relating to the earlier robbery of the video store was admissible because the evidence was relevant to the identity of the accused and was an article connected with the charged offense and recovered during the search of the codefendant's apartment, and although it was improper to permit testimony and argument that went beyond identifying the business card as an article taken in the prior robbery, the error did not require reversal since there was overwhelming evidence of the codefendant's guilt. Rainly v. State, 307 Ga. App. 467, 705 S.E.2d 246 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion by permitting witnesses to mention in their testimony, and the prosecutor to mention during the prosecutor's opening statement and closing argument, a prior robbery of a video store because the evidence and statements did not constitute evidence of or statements concerning similar transactions which the state sought to use against the defendant; the state did not suggest, nor could it be reasonably inferred from the evidence, that the defendant was implicated in any way in the prior robbery, and adherence to Ga. Unif. Super. Ct. R. 31.1 and 31.3 was not required because that evidence and those statements did not place the defendant's character in issue. Rainly v. State, 307 Ga. App. 467, 705 S.E.2d 246 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence of two prior burglaries as similar transactions under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) during the defendant's trial for burglary, O.C.G.A. § 16-7-1, because the trial court's finding that the offenses satisfied the similarity requirement was not clearly erroneous; there was evidence that the defendant was in a house on the day before the burglary was discovered and was found wearing stolen sunglasses two days later, in each instance the defendant became acquainted with male college students by asking for money or odd jobs and later, when the victims' house appeared to be vacant, entered without authority to appropriate the victims' goods, and the burgled houses were within one mile of each other. Long v. State, 307 Ga. App. 669, 705 S.E.2d 889 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial court's decision to admit evidence of the defendant's prior handgun theft was not an abuse of the court's discretion because in both the earlier theft and the murder for which the defendant was convicted, the defendant stole 9 millimeter handguns from individuals with whom the defendant had a close relationship and access, and then the defendant lied to police in order to avoid arrest and prosecution. Hunt v. State, 288 Ga. 794, 708 S.E.2d 357 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence of two prior burglaries as similar transactions under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) during the defendant's trial for burglary, O.C.G.A. § 16-7-1, because the trial court's finding that the offenses satisfied the similarity requirement was not clearly erroneous; there was evidence that the defendant was in a house on the day before the burglary was discovered and was found wearing stolen sunglasses two days later, in each instance the defendant became acquainted with male college students by asking for money or odd jobs and later, when the victims' house appeared to be vacant, entered without authority to appropriate the victims' goods, and the burgled houses were within one mile of each other. Long v. State, 307 Ga. App. 669, 705 S.E.2d 889 (2011) (decided under former O.C.G.A. § 24-2-2).
Testimony of 12 former child victims was properly admitted because the similar past transactions were sufficiently similar and showed the defendant's unique bent of mind; the similar transaction evidence included testimony about the defendant's sexual experiences with other underage victims, which were the same as those involved in the charged offenses. Ewell v. State, 318 Ga. App. 812, 734 S.E.2d 792 (2012)(decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion by allowing the state to introduce the evidence of a similar robbery to show the defendant's intent and modus operandi or course of conduct, which were legitimate purposes at the time of trial, because the state presented sufficient evidence that the defendant committed the other robbery, which involved robbing a restaurant night manager at closing time while concealing the face with clothing. Martin v. State, 324 Ga. App. 252, 749 S.E.2d 815 (2013).
In an armed robbery case, the trial court did not err in admitting a prior armed robbery conviction because the defense's theory that the defendant was present during the current armed robbery but had not participated in robbing the victim squarely challenged the element of intent; there was sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the 2008 armed robbery; the 2008 armed robbery was factually similar to the current armed robbery; and the probative value outweighed any undue prejudice as intent was contested in that the defendant had admitted to being present but denied participating in the armed robbery. Logan-Goodlaw v. State, 331 Ga. App. 671, 770 S.E.2d 899 (2015).
Trial court did not err in admitting other acts evidence as the other burglaries were factually similar to the charged offense as all three targeted convenience stores and entry was made by breaking the glass front door, the other acts occurred one day after the charged offense, and evidence recovered from the other burglaries connected those acts to the charged offense. York v. State, 334 Ga. App. 581, 780 S.E.2d 352 (2015).
Trial court did not err in finding that the similar transaction, in which the defendant jumped into a car, robbed a victim and drove off in their vehicle, was admissible to show the defendant's intent in robbing the victim in the instant case. McCoy v. State, 332 Ga. App. 626, 774 S.E.2d 179 (2015).
Trial court did not abuse the court's discretion in admitting prior act evidence in the form of testimony from two witnesses that the witnesses each purchased prescription pain pills from the defendant on numerous occasions as the testimony was relevant to the issue of the defendant's intent and the state was entitled to reject the defendant's offer to stipulate to the commission of the crime of possession of a controlled substance with intent to distribute. Hood v. State, 299 Ga. 95, 786 S.E.2d 648 (2016).
Trial court did not err in admitting evidence of the defendant's identity as a participant in a prior robbery as the incidents occurred within one month of each other, both involved the armed robbery of a purse of a Hispanic woman walking alone, the perpetrators wore dark clothing, used a small handgun, and used a white SUV, and the stolen purses were later found discarded on a roadway, allowing the trial court to find that the modus operandi for each robbery was sufficiently similar. Martin v. State, 340 Ga. App. 773, 798 S.E.2d 326 (2017).
Defendant's convictions for burglary and smash and grab burglary under O.C.G.A. §§ 16-7-1(c) and16-7-2(b) were supported by circumstantial evidence, including cell phone evidence that the defendant was near the scenes of the two burglaries and DNA evidence from a cigarette butt found in a very similar burglary days after the charged crimes; the defendant's prior conviction for a similar burglary was also properly admitted and supported the conviction. Nations v. State, 345 Ga. App. 92, 812 S.E.2d 346 (2018).
Evidence of the defendant's prior guilty plea to six separate residential burglaries was admissible to show intent, absence of mistake, and motive, in a case that was sufficiently similar and any danger of unfair prejudice was mitigated by the trial court's limiting instruction. Harvey v. State, 344 Ga. App. 761, 811 S.E.2d 479 (2018), cert. denied, No. S18C0930, 2018 Ga. LEXIS 628 (Ga. 2018).
Trial court did not err in admitting other acts evidence of the defendant's involvement in two armed robberies that led to the entry of guilty pleas to reduced charges of two counts of theft by taking because the evidence of the defendant's guilt aside from the other acts evidence was strong. Edwards v. State, 308 Ga. 176, 839 S.E.2d 599 (2020).
Similar transaction evidence was properly admitted under former O.C.G.A. § 24-2-2 to show that the defendant had committed a prior armed robbery of a retail establishment when the defendant was unable to support oneself and needed money. Johnson v. State, 277 Ga. App. 41, 625 S.E.2d 411 (2005) (decided under former O.C.G.A. § 24-2-2).
When defendant was accused of robbing an auto parts store, similar transaction evidence was properly admitted; the evidence showed defendant's participation in nine other armed robberies of retail establishments in the same metropolitan area over a seven-month period, including six robberies at five other auto parts stores. Wyche v. State, 291 Ga. App. 165, 661 S.E.2d 226 (2008), cert. denied, No. S08C1413, 2008 Ga. LEXIS 914 (Ga. 2008) (decided under former O.C.G.A. § 24-2-2).
Evidence of later crime inadmissible.
- Because the state did not establish that the features of the charged crimes and the later crimes marked those crimes as the unique "signature" of the same perpetrator, the trial court abused the court's discretion by admitting evidence of those other acts to show a distinctive plan and identity. There was no reason to believe that the person who alone directly stole a sedan from a woman, assaulted a child, and kidnapped another child was the same person who by entirely unknown means, and possibly working with other persons, stole an SUV miles away more than two months earlier. Heard v. State, Ga. , 844 S.E.2d 791 (2020).
Reversible error occurred by admitting character evidence.
- Trial court committed reversible error by admitting character evidence and holding that the evidence was intrinsic to the alleged crimes of robbery as the defendant did not testify as to character and the character trait was not an essential element of a charge, claim, or defense; the text introduced a specific bad act, possible fraud, which was not allowed and the fact that the defendant may have attempted to defraud an apartment complex a week earlier did not arise out of the same transaction. Holt v. State, 352 Ga. App. 504, 835 S.E.2d 336 (2019).
Error in admitting evidence of the defendant's prior arrest for armed robbery was not harmless as the evidence against the defendant was not overwhelming because none of the people in the bank during the robbery identified the defendant as one of the robbers; and the only witness connecting the defendant to the robbery was an accomplice, whose testimony, standing alone, would not support the defendant's conviction as corroboration of the accomplice's testimony was required. Blackwell v. State, 351 Ga. App. 302, 830 S.E.2d 782 (2019).
Prior arrest for armed robbery improperly admitted.
- When the defendant was convicted of, inter alia, armed robbery, the trial court erred in allowing the state to present character evidence in the form of the defendant's prior arrest for armed robbery as the defendant's references to mentoring children did not open the door to rebuttal evidence from the state because neither the defendant's counsel nor the state questioned the defendant about the references or attempted to tie the defendant's mentoring to any character trait; and even if the references to being a mentor did open the door to rebuttal testimony, the evidence of the defendant's prior arrest for armed robbery was not tailored to rebut evidence of any pertinent character trait offered by the defendant's testimony. Blackwell v. State, 351 Ga. App. 302, 830 S.E.2d 782 (2019).
When the defendant was convicted of, inter alia, armed robbery, the trial court erred in allowing the state to present character evidence in the form of the defendant's prior arrest for armed robbery because defense counsel's cross-examination of an accomplice did not amount to an offer of evidence of a pertinent character trait as it was an attempt to establish that the accomplice was afraid of someone other than the defendant. Blackwell v. State, 351 Ga. App. 302, 830 S.E.2d 782 (2019).
Evidence of plan to commit separate robbery the same day was intrinsic to charged robbery.
- In the defendant's robbery trial, evidence that the group had planned to execute another robbery the same day was intrinsic under O.C.G.A. § 24-4-404; it established the members of the group, confirmed the group's goal, and explained how the conspiracy had transformed into the robbery of the victims when they showed up flashing cash around. Because the evidence was intrinsic, it was not subject to the notice requirements of Rule 404(b). The evidence was not unduly prejudicial. Brown v. State, 350 Ga. App. 104, 828 S.E.2d 110 (2019).
Appeal by state permitted from pretrial exclusions.
- In a robbery case, the state's direct appeal under O.C.G.A. § 5-7-1(a)(5) from an order excluding evidence of a similar robbery under O.C.G.A. § 24-4-404(b) was accepted because, although the trial court was not required to treat the state's pretrial notice of other crimes evidence as a motion under § 5-7-1(a)(5), the state complied with the provisions of the statute. An order excluding intrinsic evidence was not appealable because the pretrial notice did not cover intrinsic evidence. State v. Battle, 344 Ga. App. 565, 812 S.E.2d 1 (2018).
Incident occurring eight years ago admitted.
- Similar transaction evidence of an eight-year-old incident in which the defendant robbed two victims at gunpoint was not too remote in time or dissimilar to the armed robbery and aggravated assault charges the defendant was on trial for, and was thus properly admitted to show course of conduct, bent of mind, motive, and identity. Wallace v. State, 295 Ga. App. 452, 671 S.E.2d 911 (2009) (decided under former O.C.G.A. § 24-2-2).
Prior crimes properly admitted.
- Prior crimes committed by defendant, including the murder of a store owner and an armed robbery, were properly admitted, not as similar transactions, but as evidence to show the motive, course of conduct, and bent of mind; moreover, evidence of the robbery was sufficiently similar to the current armed robbery charges. Grimes v. State, 280 Ga. 363, 628 S.E.2d 580 (2006) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion by admitting evidence from another burglary because the defendant pled not guilty to the burglary charges, thus making intent a material issue, and the defendant's actions in committing the other burglary and pawning the class ring involved the same mental state as burglarizing a house to obtain gold jewelry to sell for cash; thus, the evidence from the other burglary was relevant to establish intent. Silvey v. State, 335 Ga. App. 383, 780 S.E.2d 708 (2015).
In an action for, inter alia, armed robbery, the trial court did not abuse the court's discretion by admitting evidence that the defendant previously pled guilty to an armed robbery because the state met the state's burden to show a permissible purpose for admitting the prior conviction, motive and intent, other than the defendant's character. Westbrook v. State, 355 Ga. App. 334, 844 S.E.2d 208 (2020).
Evidence of prior robberies improperly admitted to show identity.
- Evidence of the defendant's prior robberies were improperly admitted for purposes of showing identity as the prior robberies were not so similar to the charged robbery offenses that the charged offenses had to have been the defendant's handiwork. Sloan v. State, 351 Ga. App. 199, 830 S.E.2d 571 (2019).
Prior crimes evidence should have been admitted.
- After the defendant was charged with second-degree burglary, second-degree criminal damage to property, possession of tools for the commission of crime, and smash-and-grab burglary, the trial court erred in denying the state's motion to introduce the other-act evidence of a different second-degree burglary in the same county to which the defendant had pled guilty because the two burglaries at issue both occurred within three weeks of each other and used virtually identical tools, including crowbars and an orange concrete saw, as well as methods, including prying doors and breaking windows, to accomplish the objective of obtaining cash from an ATM after business hours. State v. Plaines, 345 Ga. App. 205, 812 S.E.2d 571 (2018), cert. denied, No. S18C0980, 2018 Ga. LEXIS 645 (Ga. 2018).
Trial court did not err in granting the state's motion to present evidence of the armed robbery of a residence two days before the victim's murder because the evidence of the armed robbery was admissible to show the motive to commit the victim's murder as the defendant and the co-defendant were concerned that the victim would turn them into the police; evidence of motive was relevant even if the evidence incidentally placed the defendant's character in issue; there was sufficient proof that the defendant committed the prior armed robbery; and the trial court did not err in finding that the probative value of the evidence outweighed any prejudice from admission. Pike v. State, 302 Ga. 795, 809 S.E.2d 756 (2018).
Prior aborted attempt at robbery admissible.
- Trial court did not err by allowing a witness to testify regarding the group's prior aborted attempt to rob the victim because the testimony was intrinsic evidence to the charged crimes. The earlier attempted robbery involved the same group of people, the same phone number, and the plot to rob the same deliveryman from the same Chinese food restaurant in the same neighborhood. Smith v. State, 350 Ga. App. 336, 829 S.E.2d 408 (2019).
Admission of prior guilty pleas proper.
- Trial court did not abuse the court's discretion in admitting evidence of the defendant's two prior guilty pleas to armed robbery because the defendant's testimony that the victim pulled out the gun made intent a challenged element and, thus, the evidence was relevant. Jones v. State, 299 Ga. 377, 788 S.E.2d 477 (2016).
Evidence of gang membership improperly admitted.
- Because there was no evidence whatsoever that the robberies were gang-related, and the defendant's prior gang affiliation had minimal probative value with regard to identity, the trial court abused the court's discretion in admitting the evidence of the defendant's gang membership; however, the error was harmless and did not require reversal as the victim identified the defendant in court; a police officer saw the defendant in the same apartment complex where the crimes occurred on the day of the crimes' commission; and the defendant was apprehended two days after the robbery in the same apartment complex wearing a red hat and red jacket matching that described by the victim. Lingo v. State, 329 Ga. App. 528, 765 S.E.2d 696 (2014).
Evidence improperly admitted to show opportunity.
- Evidence of the defendant's prior robberies was improperly admitted for purposes of proving the defendant's opportunity to commit the charged robbery offenses because no special skills or abilities were used during the commission of the crimes; and the state presented no evidence showing where the defendant lived at the time of the prior armed robberies. Sloan v. State, 351 Ga. App. 199, 830 S.E.2d 571 (2019).
Act of armed robbery and "selfie" videos not similar.
- State failed to show that the defendant's making of "selfie" videos in which the defendant talked about making money by various means, including armed robbery, amounted to any criminal act, let alone that it required the same or similar intent as the charged offense of armed robbery and, thus, the acts of making the videos and committing the armed robbery were not "similar acts" because they did not share the same intent. State v. Spriggs, 338 Ga. App. 655, 791 S.E.2d 440 (2016).
When extreme prejudice results.
- Statement volunteered by police officer, witness for the state, on cross-examination, that the defendant was apprehended after being shot while attempting to break into another house, was so prejudicial that the mere statement by the court that the jury was not to consider it did not cure the error, and a reversal was demanded on this ground. Felton v. State, 93 Ga. App. 48, 90 S.E.2d 607 (1955) (decided under former Code 1933, § 38-202).
Res gestae.
- Three robberies of drive-through restaurants located within a short distance of each other occurred in less than a 24-hour period and the suspect walked up to the drive-through window wearing a green army jacket and using a blue car, were sufficiently similar and constituted part of the res gestae; therefore, the trial court did not err in admitting the evidence. Houston v. State, 270 Ga. App. 456, 606 S.E.2d 883 (2004) (decided under former O.C.G.A. § 24-2-2).
Logical connection between crimes.
- When there is no question that the modus operandi of a past burglary for which defendant had been convicted is similar to that of the burglary for which the defendant is on trial, a logical connection exists between the two offenses sufficient to render the prior offense relevant and admissible for the purpose of establishing the defendant's criminal intent in the case for which defendant is on trial. Scott v. State, 162 Ga. App. 541, 292 S.E.2d 125 (1982) (decided under former O.C.G.A. § 24-2-2).
Admission of evidence of a defendant's theft of another vehicle as similar transaction evidence to show course of conduct, intent, and identity was not an abuse of discretion since, as in the present case, the defendant stole the other car from a salesperson during a test drive with the use of a weapon and then forced the salesperson from the car next to a freeway exit ramp. Mullins v. State, 280 Ga. App. 689, 634 S.E.2d 850 (2006) (decided under former O.C.G.A. § 24-2-2).
Identity, motive, malice, intent, plan, scheme, bent of mind, and course of conduct.
- Trial court did not err in admitting evidence of other crimes defendant committed on the same day defendant robbed a convenience store as both of the similar crimes involved robberies of a female victim working alone at a convenience store on the same day, just as occurred with the indicted offense, and the clerks' descriptions of defendant's clothing and physical appearance in the similar crimes resembled those of defendant in the indicted offense; accordingly, sufficient circumstantial evidence connected defendant to the offenses and allowed for admission of the evidence of similar crimes. Ferguson v. State, 262 Ga. App. 28, 584 S.E.2d 618 (2003) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in admitting similar transaction evidence of a first car-jacking to show bent of mind, course of conduct, and identity since: (1) both incidents constituted car-jackings committed with a gun pointed at the victim; (2) the incidents occurred within six days of each other; (3) the first car-jacking involved a car of the same make and color as one used in the car-jacking that was being tried; (4) the victim of the first car-jacking positively identified defendant as the perpetrator of the first car-jacking; and (5) the testimony of the victim of the first car-jacking was sufficient to meet the elements of O.C.G.A. § 16-5-44.1(b). Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence of three similar transaction offenses in defendant's trial for robbery, hijacking a motor vehicle, and possession of a firearm by a convicted felon since the earlier incidents were sufficiently similar to show that defendant had a course of conduct and bent of mind to steal cars, particularly in a certain area, because: (1) on two prior occasions defendant was discovered driving stolen cars and was convicted of theft by receiving; and (2) as to the third similar transaction, a witness testified that a man showed the witness a gun and demanded that the witness give him the keys to a car, defendant was subsequently arrested and identified by the witness, and defendant was indicted for armed robbery and entered a guilty plea to the offense of robbery. Cain v. State, 268 Ga. App. 39, 601 S.E.2d 415 (2004) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence of independent crimes to show identity, bent of mind, and course of conduct because the independent crimes and the charged crimes showed that defendant committed the burglaries with accomplices, that the defendant committed the burglaries during daylight hours, that defendant and the accomplices would choose a home to burglarize by driving around semi-rural areas until they found a home that looked empty and that "sat back" some distance from the street on which it was located, and that defendant used the brother's white van to commit the charged crimes and one of the independent crimes. Denny v. State, 280 Ga. 81, 623 S.E.2d 483 (2005) (decided under former O.C.G.A. § 24-2-2).
Similar transaction evidence admissible.
- Evidence of defendant's three prior convictions was properly admitted in defendant's entering an automobile trial as: (1) certified copies of the convictions were introduced and defendant was placed at the scene of the prior crimes; (2) the prior offenses and the charged offenses all involved acts of entering an automobile during the early morning hours in downtown Savannah; (3) the crimes could be admitted to show bent of mind and course of conduct; and (4) the prejudicial impact of the similar transaction evidence did not outweigh the probative value. Williams v. State, 273 Ga. App. 213, 614 S.E.2d 834 (2005) (decided under former O.C.G.A. § 24-2-2).
Because the evidence of the four independent offenses that included car jackings and robberies were sufficiently similar to the charged crimes in the defendant's current case in that the offenses involved the use of a handgun to subdue the victims, cooperation between the defendant and the first co-defendant, the common motive of robbery, and luring the victims to the crime scenes where the victims were assaulted and robbed, the trial court did not err in admitting evidence of the four independent offenses at trial. Geiger v. State, 295 Ga. 648, 763 S.E.2d 453 (2014).
Evidence of conduct as corroboration may be circumstantial or direct in home invasion case.
- Modus operandi evidence in the case was sufficient to corroborate a witness's testimony identifying the appellant as a participant in two additional home invasion crimes because the perpetrators were all Spanish speaking and conducted themselves the same way as to all four home invasions that occurred and each happened over the course of only three weeks and were committed within the same county. Cisneros v. State, 299 Ga. 841, 792 S.E.2d 326 (2016).
Evidence that defendant was on parole at the time of the crime was not inadmissible since the evidence showed defendant's motive for committing robbery and was material. Cook v. State, 221 Ga. App. 831, 472 S.E.2d 686 (1996) (decided under former O.C.G.A. § 24-2-2).
Crime spree evidence.
- In the defendant's trial for murder and armed robbery, the trial court did not err in admitting evidence concerning two uncharged offenses against other victims because the evidence suggested that the defendant and the defendant's girlfriend engaged in a week-long crime spree and was part of the same series of transactions as the charged crimes. Mosley v. State, 307 Ga. 711, 838 S.E.2d 289 (2020).
Defendant's denial of alleged admission of other acts.
- Testimony in rebuttal to testimony by defendant that defendant had never told anyone that defendant had robbed and raped some people and thrown guns out of a car window is admissible to impeach defendant's testimony in defendant's own behalf. Baker v. State, 161 Ga. App. 670, 288 S.E.2d 280 (1982) (decided under former O.C.G.A. § 24-2-2).
Defendant's prior burglary conviction was properly admitted in defendant's burglary trial as: (1) defendant waived any claim that a prior conviction was insufficiently similar to the burglary as defendant did not raise the claim at the pretrial hearing and at trial; (2) defendant failed to preserve any objection to the introduction of the Alabama "Case Action Summary" based on a best evidence theory; and (3) defendant failed to show that the prior conviction was more prejudicial than probative. Brooks v. State, 273 Ga. App. 691, 615 S.E.2d 829 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in finding that similar transaction evidence was relevant and admissible because the evidence showed that the defendant was involved in the planning and/or execution of each of the similar transactions pursuant to O.C.G.A. § 16-2-20, even if the defendant was not the actual perpetrator of the crime; given that the defendant was identified as an active participant in individual crimes that were part of this continuing criminal enterprise, and that the defendant's possession of a ring stolen from a car salesperson further demonstrated the involvement in the crime spree, the jury was authorized to find that the defendant committed the independent offenses or acts as either an actual perpetrator or as a party to the crimes. Walker v. State, 310 Ga. App. 223, 713 S.E.2d 413 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence of previous arrest for burglary admissible.
- In a trial for burglary, the trial court properly admitted evidence of a prior burglary as evidence of intent and state of mind, even though the trial court failed to expressly balance the probative value of the evidence against the prejudicial impact; the evidence was not overly prejudicial as detailed limiting instructions were given when the evidence was admitted and at the close of the case. Clark v. State, 272 Ga. App. 89, 611 S.E.2d 741 (2005) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err when the court declined to exclude a witness's testimony that the defendant told the witness that the defendant wanted to go to a "shot house" so that the defendant could rob the house based on the defendant's objection that the statement was rendered inadmissible by the state's failure to follow the procedural rules appropriate to similar transaction evidence, Ga. Unif. Super. Ct. R. 31.3, because the defendant's statement was neither a crime in and of itself nor a relevant expression of prior difficulties between the defendant and any of the victims of the crimes; an accused's statements were not independent offenses or acts unless those statements in and of themselves constituted a crime, but rather, statements such as the challenged words the witness repeated fell within the definition of character evidence, former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), which was irrelevant and had to be excluded unless admissible for some other legal purpose. Newsome v. State, 288 Ga. 647, 706 S.E.2d 436 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence of uncharged burglaries.
- In the defendant's burglary trial, evidence of five uncharged burglaries was admissible because the uncharged and six charged burglaries were part of a two-week crime spree committed by a burglary crew of which the defendant was a part, even if the defendant did not directly participate in some; the uncharged crimes did not fall within O.C.G.A. § 24-4-404(b). Baughns v. State, 335 Ga. App. 600, 782 S.E.2d 494 (2016).
Prosecutor's statement "in her place" that defendant committed the other crimes.
- In a robbery case, the trial court erred by finding that the prosecutor's "in her place" proffer in support of a pretrial notice under O.C.G.A. § 24-4-404(b) seeking to admit evidence of another robbery committed by the defendant provided insufficient proof that the defendant committed the other acts, in the absence of objection by the defendant. State v. Battle, 344 Ga. App. 565, 812 S.E.2d 1 (2018).
Evidence of arrest following high speed chase properly admitted.
- Trial court did not abuse the court's discretion in allowing the evidence of the defendant's arrest following the high-speed chase because it was intrinsic as both necessary to complete the story of the crimes and inextricably intertwined with the evidence regarding the charged offenses since it established a connection between the defendant and the stolen gun used in the bank robbery and the probative value was not substantially outweighed by the danger of unfair prejudice under the circumstances. Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162 (2019).
c. Controlled Substances
Proper admission of similar transaction evidence.
- When, as part of trial strategy, the first defendant elected to introduce evidence of the first defendant's non-involvement in a prior drug sale and attempted to elicit testimony from a codefendant that the first defendant did not participate in the prior drug deal, but when the codefendant testified that the first defendant and the second defendant were the suppliers of the ounce of cocaine sold in that prior transaction, the trial court did not err in admitting evidence of the prior drug deal as a similar transaction because the first defendant could not complain on appeal about the deleterious results stemming from that defendant's own trial strategy. Lopez v. State, 267 Ga. App. 532, 601 S.E.2d 116 (2004) (decided under former O.C.G.A. § 24-2-2).
Admission of similar transaction evidence proper. See Ryan v. State, 277 Ga. App. 490, 627 S.E.2d 128 (2006) (drugs) (decided under former O.C.G.A. § 24-2-2).
When the defendant was charged with possessing methamphetamine, the trial court properly admitted as a similar transaction a prior conviction for possessing methamphetamine because both involved the defendant's possession of methamphetamine while involved in disorderly conduct. The defendant claimed that the scales on which the drug was found were in a car when the defendant bought it, and evidence of the similar transaction, when officers responding to a disorderly person call found methamphetamine in the defendant's pocket, was relevant to the defendant's intent and bent of mind to possess methamphetamine. Martin v. State, 291 Ga. App. 363, 662 S.E.2d 185 (2008) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in admitting similar transaction evidence during the defendant's trial for possession of methamphetamine and possession of drug related objects because the subsequent incident involved possession of methamphetamine and possession of a glass pipe used to smoke methamphetamine. McGhee v. State, 303 Ga. App. 297, 692 S.E.2d 864 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in admitting evidence of the defendant's prior drug sales as similar transactions for the purpose of showing the defendant's bent of mind and course of conduct because at trial the defendant denied having any knowledge of the cocaine found in the defendant's vehicle or about the sale of cocaine to an informant; therefore, based on the similarity of the prior crimes with the offense at issue, including the similar hand-to-hand nature of the sale of the same drug, for the same price, at a similar time of day, in the same general area, there was no abuse of the trial court's discretion in admitting the evidence of prior drug sales as similar transactions for the purpose of showing the defendant's bent of mind and course of conduct. Robertson v. State, 306 Ga. App. 721, 703 S.E.2d 343 (2010) (decided under former O.C.G.A. § 24-2-2).
During defendant's trial for possession of methamphetamine and possession of marijuana, the trial court did not abuse the court's discretion in admitting evidence of the defendant's prior conviction on an obstruction charge because the trial court admitted the evidence for the purpose of showing the defendant's course of conduct only after conducting a hearing pursuant to Ga. Unif. Super. Ct. R. 31.3(B), which it was required to do, and the state satisfied the criteria delineated in Rule 31.3 for the admission of similar-transaction evidence; even assuming that the similar-transaction evidence should have been excluded, any error in the evidence's admission was harmless because there was videotaped evidence that the defendant was driving an obviously stolen vehicle, that the defendant fled from officers who attempted to conduct a traffic stop, that the defendant continued to lead the officers on a chase even after the defendant's tires had been flattened, that the defendant ultimately exited the vehicle and ran on foot, and that methamphetamine and marijuana not belonging to the owner were found inside the vehicle in which the defendant was the sole occupant. Mangum v. State, 308 Ga. App. 84, 706 S.E.2d 612 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in admitting similar transaction evidence because both the prior incident and the incident for which the defendant was convicted involved the possession of cocaine since the prior possession was for the purpose of distribution, inasmuch as the evidence showed that the defendant did, in fact, distribute cocaine on that occasion, and the possession for which the defendant was convicted was for an unknown purpose and not clearly for personal use; one incident involved possession and sale of less than one gram of cocaine, the other involved possession of less than two grams of cocaine, and both incidents occurred in the county within a span of two weeks. Gaudlock v. State, 310 Ga. App. 149, 713 S.E.2d 399 (2011) (decided under former O.C.G.A. § 24-2-2).
Defendant failed to establish that the trial court abused the court's discretion by admitting evidence of the defendant's 2001 conviction for possessing cocaine with the intent to distribute because the defendant placed the defendant's intent in issue by pleading not guilty to the charges of trafficking in cocaine and possessing cocaine with the intent to distribute; the defendant did nothing to remove intent as an issue as the defendant told law enforcement that the defendant did not live in the house throughout which the drugs and drug-distribution paraphernalia were found; and the prior conviction was relevant as the defendant's participation in the earlier crime required the same intent as the charged crimes. Gunn v. State, 342 Ga. App. 615, 804 S.E.2d 118 (2017), cert. denied, No. S18C0166, 2018 Ga. LEXIS 217 (Ga. 2018).
Since the jury was required to consider whether the defendant had the ability to introduce a substance into a victim's drink that was capable of incapacitating the victim without being detected, the other acts evidence, testimony of witnesses who described incidents where the witnesses drank alcohol provided by the defendant and then felt disoriented and fuzzy and one woke up on the defendant's bed partially unclothed and the other with the defendant performing oral sex, was relevant to show that the defendant possessed such a distinctive ability. Jones v. State, 354 Ga. App. 568, 841 S.E.2d 112 (2020).
Similar transaction notice was sufficient.
- Trial court committed no error in allowing the introduction of similar transaction evidence because the trial court was authorized to conclude that the defendant received adequate notice of the similar transactions prior to trial and was not prejudiced by the state's failure to attach the accusation and guilty plea to the state's notice pursuant to Ga. Unif. Super. Ct. R. 31.3; the prosecutor informed the trial court that since the defendant's counsel entered the case, the prosecutor had a number of discussions with counsel about the defendant's prior drug conviction as part of plea negotiations, and the similar transaction notice the state filed included information identifying the similar transaction, including the date of occurrence, the county in which the crime occurred, the case number, and the date of the guilty plea, as well as a list of potential witnesses who had been involved in the case and their contact information. Taylor v. State, 305 Ga. App. 748, 700 S.E.2d 841 (2010) (decided under former O.C.G.A. § 24-2-2).
Victim's alleged involvement in the drug trade, without more, was insufficient to permit admission of that evidence to show that the victim was likely to be armed. Wilson v. State, 302 Ga. 106, 805 S.E.2d 98 (2017).
Evidence of defendant's drug use.
- Evidence that defendant's urine sample taken after killing had tested positive for marijuana was relevant and admissible as part of res gestae to show the influence of drugs on defendant's state of mind at the time of the killing. Giddens v. State, 206 Ga. App. 409, 425 S.E.2d 299 (1992) (decided under former O.C.G.A. § 24-2-2).
Witnesses' brief testimony that the defendant would sell cocaine to the witnesses because of a prior relationship, was necessary to explain why the witnesses were approached to make the purchase, and why neither an undercover officer nor a confidential informant could accompany one of the witnesses to the defendant's residence, and the trial court did not abuse the court's discretion in admitting the testimony. Smith v. State, 278 Ga. App. 315, 628 S.E.2d 722 (2006) (decided under former O.C.G.A. § 24-2-2).
In a drug case when cocaine, marijuana, and a scale were found in the car the defendant was driving, and the defendant gave police a false name, the trial court did not err in admitting evidence of similar transactions; in all of the transactions, the defendant either possessed cocaine or was in direct proximity to cocaine, the defendant possessed scales in two of the other offenses, and in all but one of the offenses the defendant gave the police a false name. Jackson v. State, 284 Ga. App. 619, 644 S.E.2d 491 (2007), cert. denied, No. S07C1169, 2007 Ga. LEXIS 521 (Ga. 2007) (decided under former O.C.G.A. § 24-2-2).
In a prosecution for two counts of possession of less than one ounce of marijuana, evidence of the defendant's three prior convictions for the same offense was properly admitted. Given that the defendant denied possessing marijuana in two of the prior cases and in the case at bar, the prior transactions were probative of the defendant's bent of mind and course of conduct. Neal v. State, 297 Ga. App. 223, 676 S.E.2d 864 (2009) (decided under former O.C.G.A. § 24-2-2).
Admission of similar transaction evidence in a case charging the defendant with possession of cocaine with intent to distribute, O.C.G.A. § 16-13-30(b), and obstructing or hindering law enforcement officers, O.C.G.A. § 16-10-24, was proper because, in both the similar transaction and the incident leading to the charges being tried, the defendant was arrested in possession of cocaine and "sale-sized" baggies after seeking to avoid police; the trial court also gave an instruction that the similar transaction evidence was limited to the purpose of showing the defendant's bent of mind in committing the charged offenses. Cotton v. State, 297 Ga. App. 664, 678 S.E.2d 128 (2009) (decided under former O.C.G.A. § 24-2-2).
Although the evidence was sufficient to support the defendant's convictions for vehicular homicide under O.C.G.A. § 40-6-391(b), the court's admission of similar-transaction evidence, consisting of a prior methamphetamine conviction, was erroneous as irrelevant character evidence under former O.C.G.A. § 24-2-2 (see now O.C.G.A. § 24-4-404), and the conviction was reversed. McMullen v. State, 316 Ga. App. 684, 730 S.E.2d 151 (2012) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion by denying the appellant's pretrial motion to exclude evidence of the purchase and use of marijuana because the evidence was intrinsic since the evidence explained who an individual was and why the appellant believed that the victim would have cash to steal; thus, the drug evidence was necessary to complete the story of the crime for the jury. McCammon v. State, 306 Ga. 516, 832 S.E.2d 396 (2019).
Trial court properly admitted similar transaction evidence to show a defendant's course of conduct and intent.
- In a marijuana possession case involving a stop of a car in which the defendant was a passenger, the trial court did not err under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) in permitting evidence that the defendant was previously stopped for speeding and a significant amount of marijuana was found in the car; since the defendant's constructive possession was at issue, the state was permitted to use the prior offense to show the defendant's intent, bent of mind, and course of conduct, the incidents occurred approximately a year apart and involved similar conduct, and the probative value of the evidence was not outweighed by any unfair prejudice that resulted. Curtis v. State, 282 Ga. App. 322, 638 S.E.2d 773 (2006), cert. denied, No. S07C0427, 2007 Ga. LEXIS 203 (Ga. 2007) (decided under former O.C.G.A. § 24-2-2).
Testimony as to circumstances connected with the accused's arrest is admissible.
- Testimony that an officer had gone to defendant's home to execute an arrest warrant for a probation violation explained the officer's presence at defendant's home and the officer's observation of defendant's use of marijuana; the testimony did not put defendant's character in issue and was, therefore, admissible. Jones v. State, 268 Ga. App. 246, 601 S.E.2d 763 (2004) (decided under former O.C.G.A. § 24-2-2).
Trial counsel was not ineffective for failing to object to a witnesses reference to marijuana because any challenge to the testimony would have failed; even if the testimony incidentally placed the defendant's character in issue, all circumstances with an accused's arrest were admissible if the circumstances were shown to be relevant, and that was so even if the evidence incidentally put the accused's character in issue. Odom v. State, 304 Ga. App. 615, 697 S.E.2d 289, cert. denied, No. S10C1801, 2010 Ga. LEXIS 927 (Ga. 2010) (decided under former O.C.G.A. § 24-2-2).
Mere accusation or indictment insufficient.
- Mere introduction of an accusation with pleas of guilty thereon, embracing the same crime for which defendant is on trial, without proof of details as to the manner in which previous acts were committed, does not constitute similarity of transactions so connected as to reveal knowledge, plan, or system, and therefore the court erred in admitting, over objections, the former accusation and plea of guilty of defendant, charged with possession of non-taxpaid whiskey, to a previous charge of the same offense. Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947) (decided under former Code 1933, § 38-202); Waters v. State, 82 Ga. App. 608, 61 S.E.2d 794 (1950);(decided under former Code 1933, § 38-202).
Identity, motive, malice, intent, plan, scheme, bent of mind, and course of conduct.
- Trial court did not err when the court admitted evidence of defendant's prior conviction for possession of cocaine with intent to distribute in defendant's current case in which defendant was charged with, inter alia, trafficking in cocaine as the evidence was admitted for the permissible purpose of showing defendant's bent of mind and course of conduct. Kates v. State, 271 Ga. App. 326, 609 S.E.2d 710 (2005) (decided under former O.C.G.A. § 24-2-2).
Similar transaction evidence admissible.
- There was a sufficient connection between an earlier drug crime and the one at issue to support the admission of similar transaction evidence. In both instances defendant's vehicle was stopped on or near a certain interstate highway for driving in an unlawful manner, and upon each stop defendant consented to a search of defendant's vehicle and the search yielded cocaine; there was no doubt that defendant committed the prior act, as defendant confessed to it. Buckholts v. State, 283 Ga. App. 254, 641 S.E.2d 246 (2007) (decided under former O.C.G.A. § 24-2-2).
When the defendant was convicted of armed robbery and possession of a firearm during the commission of a felony, the trial court did not err in admitting evidence of the 2005 robbery charge as similar transaction evidence under the former evidence code because the evidence was admissible for the state's requested purposes of showing course of conduct and bent of mind; and because the evidence was sufficient to show that the defendant was one of the perpetrators in the 2005 offense as the defendant was arrested shortly thereafter in possession of a gun and the victim's belongings after initially fleeing from police. Demps v. State, 337 Ga. App. 657, 788 S.E.2d 525 (2016).
Evidence that defendant had previously transported marijuana.
- Evidence that marijuana was found in the trunk of defendant's automobile supported the inference that the defendant had previously transported marijuana and was relevant to prove that defendant was predisposed to commit the crime for which the defendant was indicted and to which the defendant raised the defense of entrapment, so that the evidence was sufficient to withstand a relevancy objection. Fancher v. State, 190 Ga. App. 438, 378 S.E.2d 923 (1989) (decided under former O.C.G.A. § 24-2-2).
Conduct by family members.
- Trial court erred in allowing the state's attorney to cross-examine the defendant, who was accused of possession of marijuana, as to whether other members of defendant's family had "been in trouble for marijuana." Hill v. State, 176 Ga. App. 509, 336 S.E.2d 276 (1985) (decided under former O.C.G.A. § 24-2-2).
Nonconvicted prior drug transactions admissible.
- Evidence of prior drug transactions for which defendant was not arrested but in which defendant used a beeper to contact the arrestee and defendant's car to transport the arrestee was relevant to show defendant's participation for distribution of cocaine. Howard v. State, 206 Ga. App. 610, 426 S.E.2d 181 (1992) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in admitting the evidence as the state offered the evidence to show defendant's bent of mind or course of conduct, specifically, to show defendant's conduct in possessing small amounts of cocaine and when caught, denying that the cocaine belonged to defendant; the facts in the two instances were sufficiently similar to allow the introduction of the prior conviction into evidence and that the probative value of the evidence outweighed any prejudicial value. Kidd v. State, 277 Ga. App. 29, 625 S.E.2d 440 (2005) (decided under former O.C.G.A. § 24-2-2).
Presence of marijuana and gun not sufficient enough to be admissible.
- Trial court erred in admitting evidence surrounding the defendant's prior arrest and subsequent guilty plea to possession of marijuana and carrying a concealed weapon because the only similarity in each transaction was that the defendant was in a vehicle in which marijuana and a gun were present. In addition, there was insufficient similarity between the independent offense and the crime charged so that proof of the former tended to prove the latter. Talifero v. State, 319 Ga. App. 65, 734 S.E.2d 61 (2012) (decided under former O.C.G.A. § 24-2-2).
Evidence too attenuated to be intrinsic.
- Defendant's conviction on one count of trafficking in cocaine was reversed because the trial court abused the court's discretion in admitting the evidence of the United States Drug Enforcement Administration (DEA) investigation as intrinsic evidence of the charged trafficking offense since the state failed to sufficiently link the DEA evidence to the events immediately surrounding the defendant's arrest as it was too attenuated in time and space from the events leading up to the charged offense. Sanchez-Villa v. State, 341 Ga. App. 264, 799 S.E.2d 364 (2017).
Intrinsic evidence admissible.
- Although the defendant's character might have been incidentally placed into evidence, the trial court did not abuse the court's discretion in admitting portions of the defendant's statement at issue as intrinsic evidence because the defendant used the defendant's consumption of drugs to explain the defendant's condition on the night of the murder to excuse the defendant's partial lack of recollection, and to deny the defendant's involvement in the shooting; and the portions of the defendant's initial statement to police that admitted the defendant's illicit drug use were inextricably intertwined with the evidence regarding the charged offenses, and were relevant to the defendant's justification defense. Smith v. State, 302 Ga. 717, 808 S.E.2d 661 (2017).
Admission of babysitter's testimony, who was also the defendant's live in girlfriend, was inextricably intertwined with the charged offenses of child molestation and was admissible as intrinsic evidence. Espinosa v. State, 352 Ga. App. 698, 834 S.E.2d 558 (2019).
Defendant's counsel was not ineffective for failing to object to evidence of other criminal acts as the statements that the defendant made to the narcotics investigator were admissible as intrinsic evidence because the statements explained why the first defendant was transporting drugs and what led the defendant to be passing through the county with a trunk full of methamphetamine and were no doubt intended to convince the police that the defendant did not normally transport drugs and to minimize the defendant's involvement in the drug trade. Hill v. State, 351 Ga. App. 58, 830 S.E.2d 478 (2019).
Trial court failed to make findings of proper purpose and similarity.
- Defendant's conviction for possession of cocaine, O.C.G.A. § 16-13-30(a), was reversed because the trial court did determine under former Ga. Unif. Super. Ct. R. 31.3(B) (now O.C.G.A. § 24-4-404(b)) whether the state possessed a proper purpose for admission of similar transaction evidence, or whether the two offenses were sufficiently connected or similar; the error was not harmless because the state could not establish that the defendant had actual possession of the cocaine found in the defendant's girlfriend's vehicle. McCrory v. State, 341 Ga. App. 174, 798 S.E.2d 385 (2017).
d. Miscellaneous Crimes
Admission of similar transaction evidence proper.
- In a forgery case, the trial court properly admitted similar transaction evidence of a prior forgery conviction. The trial court admitted the similar transaction evidence to show the defendant's identity and course of conduct, which were proper purposes; furthermore, in both cases, the defendant cashed or tried to cash bogus checks issued to the defendant and endorsed by the defendant at a check-cashing location other than at the bank where the checks were purportedly drawn. Beck v. State, 291 Ga. App. 702, 662 S.E.2d 798 (2008) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err by allowing evidence that the defendant actually infected a similar transaction witness with HIV as the similar transaction witness's testimony about the witness's HIV status before and after having sexual relations with the defendant, as well as medical testimony verifying the witness's negative status, allowed the jury to find that the defendant transmitted HIV to the witness. Davis v. State, 342 Ga. App. 889, 806 S.E.2d 3 (2017).
Admission of evidence harmless.
- Even if the trial court erred in permitting the state to introduce evidence that child pornography had been found on the defendant's computer in an action for child molestation, the error was harmless given the strength of the evidence of the defendant's guilt, including the victim's identification of the defendant and semen stains on the victim's bedding matching the defendant's DNA. Hahn v. State, Ga. App. , 846 S.E.2d 258 (2020).
Incident involving same victim was not a similar transaction.
- During defendant's trial for aggravated stalking, the state was permitted to introduce evidence showing that the defendant violated a bond condition by accosting the victim at a department store. The encounter at the store was not a similar transaction just because the encounter involved the same victim; the state gave the defendant notice of the state's intent to submit the evidence, and gave a limiting instruction before the evidence was introduced. Reed v. State, 309 Ga. App. 183, 709 S.E.2d 847 (2011) (decided under former O.C.G.A. § 24-2-2).
State of feeling between defendant and victim.
- On a trial of an indictment for arson, it is not error to admit evidence showing that feelings of anger or dislike existed on the part of the defendant toward the owner of the property. Wright v. State, 113 Ga. App. 436, 148 S.E.2d 333 (1966) (decided under former Code 1933, § 38-202).
Prior use of a firearm.
- Defendant's prior offense of the unprovoked use of a firearm to threaten a driver who disagreed with defendant's taking of a parking space was admissible because the offense showed defendant's propensity to settle disagreements with a gun, to act violently and impulsively to disappointment or misunderstanding, and to resort to the use of a gun with little provocation. Davis v. State, 244 Ga. App. 708, 536 S.E.2d 596 (2000) (decided under former O.C.G.A. § 24-2-2).
Trial court properly admitted similar transaction evidence to show a defendant's course of conduct and intent.
- When a defendant was charged with violating O.C.G.A. § 16-8-60(b), the admission of similar crimes evidence did not violate due process; evidence that following the defendant's arrest on the Georgia charge, the defendant had been arrested in Florida for possession of illegally reproduced recordings was appropriate for showing scheme and course of conduct, and the Florida act was sufficiently similar to the Georgia charges. Hayward-El v. State, 284 Ga. App. 125, 643 S.E.2d 242 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial for escape.
- General rule which prohibits reference to other crimes by the accused is not fully applicable to a trial for escape, which by its nature alludes to a prior act resulting in incarceration or conviction; evidence of the escapee's original crime is often an unavoidable aspect of the state's proof with regard to the lawfulness of confinement. Johnson v. State, 188 Ga. 771, 4 S.E.2d 639 (1939) (decided under former Code 1933, § 38-202); Carter v. State, 155 Ga. App. 840, 273 S.E.2d 417 (1980);(decided under former Code 1933, § 38-202).
In trial for escape and other offenses, it was not error to introduce record of prior conviction to show lawfulness of confinement without a limiting instruction. Greene v. State, 155 Ga. App. 222, 270 S.E.2d 386 (1980) (decided under former Code 1933, § 38-202).
Conviction relied upon must have occurred prior to the escape.
- When a conviction does not occur prior to the escape and thus is not relied upon to establish the felony grade of offense, reference to the conviction is unnecessary and is error. Carter v. State, 155 Ga. App. 840, 273 S.E.2d 417 (1980) (decided under former Code 1933, § 38-202).
Logical connection between crimes.
- In defendant's trial for forgery and racketeering for selling fake badges for a golf tournament to a ticket agency, the trial court did not abuse the court's discretion in admitting similar transaction evidence because all of the similar transactions were used, not to show identity, but to show bent of mind and course of conduct as: (1) four of the five transactions involved forgeries through which defendant appropriated the checks of other people and attempted to profit from those checks and at issue was whether defendant attempted to profit from badges that were constructed to resemble those created by a golf course; and (2) the final transaction even involved a scheme wherein defendant represented to potential buyers that defendant had golf tournament badges to sell to them, which defendant never delivered. With respect to the similarity requirement for admitting evidence of prior crimes, there can be substantial variation of circumstances when there exists a logical connection between crimes which are essentially dissimilar, and the issue is whether the extrinsic transactions are relevant to the issues in the trial of the case. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity. Davis v. State, 264 Ga. App. 128, 589 S.E.2d 700 (2003) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in ruling that similar transaction evidence was admissible because the ex-wife's testimony closely paralleled that of the victim, defendant's ex-girlfriend; in both cases defendant violated a restraining order, called the victim names, picked on bodily faults, and threatened both the victim and the victim's children. Maskivish v. State, 276 Ga. App. 701, 624 S.E.2d 160 (2005) (decided under former O.C.G.A. § 24-2-2).
Identity, motive, malice, intent, plan, scheme, bent of mind, and course of conduct.
- Prejudicial impact of prior crimes evidence did not outweigh the probative value in defendant's fleeing or attempting to elude a police officer trial as the prior crimes evidence showed a pattern of running from police and of resisting arrest and was properly admitted to show course of conduct, bent of mind, and intent. Mills v. State, 273 Ga. App. 699, 615 S.E.2d 824 (2005) (decided under former O.C.G.A. § 24-2-2).
Similar transaction evidence admissible.
- In a trial for driving with a suspended license, the trial court did not improperly admit evidence of seven similar transactions; the similar transactions occurred in the same area and most at about the same time of day as the charged crime, two involved the same car, and all showed the defendant's bent of mind to drive with a suspended license. Williams v. State, 285 Ga. App. 190, 645 S.E.2d 676 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in admitting evidence of prior bad acts because, as to both the victim and the other act students, the defendant used the defendant's position of authority as a band director to prey on the girls under the defendant's supervision through suggestive acts and sexual banter, and inappropriate touching, which the defendant intended to entice the girls into indecent or sexual acts arousing their sexual desires or the defendant's sexual desires. Blevins v. State, 343 Ga. App. 539, 808 S.E.2d 740 (2017), cert. denied, No. S18C0502, 2018 Ga. LEXIS 371 (Ga. 2018), overruled on other grounds by McElrath v. State, 308 Ga. 104, 839 S.E.2d 573 (2020).
Testimony of victim describing the telephone calls the victim received from defendant over a period of time and defendant's aborted visit the same month as the crime on trial was evidence of defendant's bent of mind and tended to show that as well as motive, intent, plan, identity, and/or course of conduct. Watson v. State, 180 Ga. App. 82, 348 S.E.2d 557 (1986) (decided under former O.C.G.A. § 24-2-2).
Perverted behavior evidence inadmissible.
- Trial court did not abuse the court's discretion by excluding other acts evidence involving the defendant having exposed oneself to a female customer inside the same store from which the defendant had offered the victim a ride home because undue prejudice might have resulted from the admission of the other acts evidence and created a likelihood that the jury might convict the defendant because of the other perverted behavior. State v. Isham, 348 Ga. App. 356, 823 S.E.2d 47 (2019).
Uncharged anal sodomy not admissible.
- Trial court erred in admitting evidence of uncharged anal sodomy as evidence of a continuing course of conduct and the appellate court erred in finding that it was otherwise admissible under O.C.G.A. § 24-4-404(b). State v. Parks, 350 Ga. App. 799, 830 S.E.2d 284 (2019).
No mistrial when defendant declines cautionary instructions.
- Acts of cruelty to children by the defendant have no relevance whatsoever to the issues in a trial for arson. However, when the defendant expressly declined the trial court's offer to give cautionary instructions to the jury and stated that defendant would stand on defendant's motion for mistrial, it cannot be said that, as a matter of law, the giving of cautionary instructions would have been inadequate so that a mistrial was demanded. Kuchenmeister v. State, 199 Ga. App. 64, 403 S.E.2d 847, cert. denied, 199 Ga. App. 906, 403 S.E.2d 847 (1991) (decided under former O.C.G.A. § 24-2-2).
Evidence of other conduct or crimes was admissible.
- Evidence of other transactions was admissible when, as in the charged crime, in the other transactions defendant misrepresented to homeowners how quickly defendant could begin work and how many laborers defendant would commit to the project, in each transaction, defendant barely started work before abandoning the project, and in each case, defendant avoided customers' inquiries and failed to refund the unearned down payments. Smith v. State, 265 Ga. App. 57, 592 S.E.2d 871 (2004) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in sentencing the defendant to a $1,000 fine for speeding in violation of O.C.G.A. § 40-6-181(b)(2) because the defendant did not object to the state's failure to admit certified copies of the defendant's prior convictions, nor did the defendant dispute that the defendant had multiple convictions for traffic violations; when the trial court asked the defendant whether any of the defendant's previous violations occurred while the defendant was operating a motorcycle, the defendant implicitly admitted at least one prior conviction for speeding. Jones v. State, 308 Ga. App. 99, 706 S.E.2d 593 (2011) (decided under former O.C.G.A. § 24-2-2).
Evidence admissible in sexual crime.
- Even if the trial court erred in admitting evidence of the defendant's other acts, the error was not prejudicial under O.C.G.A. § 24-4-403 as it was harmless given the overwhelming evidence of the defendant's guilt, including the victim's testimony, the testimony of the defendant's roommate that the roommate saw the victim performing oral sex on the defendant and that the victim looked scared, and the recording of a call between the defendant and the defendant's roommate in which they were attempting to cover up the incident. Edmonson v. State, 336 Ga. App. 621, 785 S.E.2d 563 (2016).
Trial court did not err by denying the defendant's request for a continuance after allowing the state to present evidence of prior bad acts, specifically the defendant's relationship with the victim's mother that began when the victim was 14 years old, because the state moved to allow such evidence prior to trial and, thus, there was no surprise to the defendant. Aguilar v. State, 340 Ga. App. 522, 798 S.E.2d 60 (2017).
During the defendant's trial for cruelty to a child, the trial court abused the court's discretion by admitting the defendant's wife's testimony that the wife observed the defendant molesting their two-year-old daughter a day or two after the incident giving rise to the instant charge because the acts were not similar and involved different children, the wife's testimony was not probative of whether the defendant committed the charged crime, and the evidence was extremely prejudicial. The error was not harmless because the defendant denied the charge at trial and the jury acquitted the defendant of family violence battery against the wife despite the wife's testimony. Maqrouf v. State, 349 Ga. App. 174, 825 S.E.2d 569 (2019), overruled on other grounds by Flowers v. State, 307 Ga. 618, 837 S.E.2d 824 (2020).
Because the defendant was on trial for rape, the defendant's prior instances of rape, sexual battery, and aggravated assault with intent to rape were properly before the jury under O.C.G.A. § 24-4-413 and, as the evidence was admissible under Rule 413, the challenge to the evidence under O.C.G.A. § 24-4-404 (b) failed. Riley v. State, Ga. App. , S.E.2d (Sept. 9, 2020).
Evidence of prior conviction of bribery.
- Admission of an owner's conviction for bribery was harmless error because, although the conviction was irrelevant to claims against a contractor, there was no prejudice demonstrated. Greene v. Bryant, 277 Ga. App. 201, 626 S.E.2d 185 (2006) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior conviction for DUI.
- Trial court did not abuse the court's discretion in admitting evidence of the defendant's prior DUI conviction as it was relevant for the limited purpose of establishing the defendant's intent and knowledge in the charged crimes of DUI per se and DUI less safe in that a jury could have inferred from the defendant's intent to drive while under the influence on a prior occasion that the defendant possessed the requisite intent on the subject occasion. State v. Jones, 297 Ga. 156, 773 S.E.2d 170 (2015).
Trial court did not abuse the court's discretion by allowing the state to introduce evidence of the defendant's prior driving under the influence (DUI) conviction because it was not unduly prejudicial as the relevance of the prior DUI was heightened since the defendant's defense was that the defendant did not drive the vehicle while intoxicated but drank after stopping; thus, the prior DUI was relevant to the intent to drive while intoxicated since the defendant did so before. King v. State, 338 Ga. App. 783, 792 S.E.2d 414 (2016).
Trial court did not err in admitting the defendant's prior driving under the influence (DUI) conviction to show intent because the same state of mind was required for committing the prior DUI and the charged crime of driving under the influence of alcohol to the extent that the defendant was a less safe driver, which was the general intent to drive while under the influence of alcohol. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017).
In a driving under the influence (DUI) per se case, the defendant's prior DUI conviction was improperly admitted to show intent as the probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the jury could infer intent from the defendant's act of driving after admittedly consuming alcohol without considering the prior DUI, and there was a danger of interjecting unfair prejudice at trial; however, admission of that evidence was harmless as the direct evidence of the defendant's guilt for the DUI-per se charge was overwhelming as the defendant admitted to consuming alcohol, and the breath tests showed the defendant's blood alcohol content was substantially in excess of 0.08 grams. Jones v. State, 301 Ga. 544, 802 S.E.2d 234 (2017).
Trial court was authorized to conclude that admission of the defendant's federal convictions for possession and distribution of child pornography was not unfairly prejudicial because the state had a need for the evidence based on the victim's delayed outcry and the defendant's attack on the victim's credibility, including testimony from the defendant's mother that the victim never complained about anything hurting when the mother babysat and admitting telling detectives that the victim was a liar because the doors in the mother's home locked. Wrice v. State, 354 Ga. App. 895, 842 S.E.2d 301 (2020).
Trial court abused the court's discretion by denying the state's motion to offer evidence of a prior DUI arrest under O.C.G.A. § 24-4-404 because the court did so solely based on the incorrect basis that admission was unconstitutional without considering the applicability of O.C.G.A. § 24-4-404 or conducting the applicable test. State v. Johnson, 354 Ga. App. 447, 841 S.E.2d 91 (2020).
Evidence of methadone use.
- Evidence that the defendant had previously hit a parked car with the defendant's truck after taking a dose of methadone earlier in the day was properly admitted into evidence as the evidence was relevant to whether the defendant intentionally drove while under the influence of methadone. Diaz v. State, 344 Ga. App. 291, 810 S.E.2d 566 (2018), cert. denied, No. S18C0793, 2018 Ga. LEXIS 504 (Ga. 2018).
Evidence of prior obstruction of police officers admissible.
- Other acts evidence regarding two earlier instances of obstructing a law enforcement officer was relevant and admissible because, by expressly challenging whether the officer was lawfully discharging the officer's official duties, the defendant implicitly challenged the defendant's own knowledge that the officer's commands to the defendant were lawful; and it established that, on past occasions, the defendant had encountered officers under similar circumstances and been apprehended or accused of obstructing the officers when the defendant fled, such that the defendant knew that the officer's command that the defendant talk with the officer was made in the lawful discharge of the officer's official duties and that the defendant was not free to flee. Green v. State, 339 Ga. App. 263, 793 S.E.2d 156 (2016).
Prior action of burning sibling.
- Evidence that the victim's parent had burned the victim's sibling on another occasion by spilled hot chocolate while in the parent's care could not be used by the jury to show that the parent burned the victim without relying on the impermissible inference that the parent's bad parenting of the sibling made it more likely the parent burned the victim. Pittmon v. State, 342 Ga. App. 874, 805 S.E.2d 628 (2017).
Other transactions admissible to disprove defense of mistake of fact in RICO action.
- In a trial on RICO charges arising out of attempts to live in abandoned homes and acquire the homes through adverse possession, the defendant's counsel failed to raise a valid objection to the alleged lateness of the state's O.C.G.A. § 24-4-404(b) notice, waiving any objection; the prior acts of the defendant were relevant to disprove the defendant's defense of mistake of fact and to prove the defendant's intent to fraudulently use the court system in an effort to obtain property and gain financially. Lowery v. State, 347 Ga. App. 26, 815 S.E.2d 625 (2018).
4. Victim's Character
Long-standing requirement for admission of victim's character evidence not changed.
- There is no reason to construe the rules regarding the admission of character evidence as a modification of Georgia's long-standing requirement that a defendant must first make a prima facie showing of self-defense before requiring a trial court to determine whether evidence pertaining to the victim's character is admissible. Oliver v. State, 329 Ga. App. 377, 765 S.E.2d 606 (2014).
In a trial for homicide, general bad character of the deceased for violence cannot be established by proof of specific acts. Ivey v. State, 42 Ga. App. 357, 156 S.E. 290 (1930) (decided under former Penal Code 1910, § 1019); Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945); Wilcher v. State, 87 Ga. App. 93, 73 S.E.2d 57 (1952) (decided under former Code 1933, § 38-202); Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975); Barrett v. State, 140 Ga. App. 309, 231 S.E.2d 116 (1976) (decided under former Code 1933, § 38-202); Guevara v. State, 151 Ga. App. 444, 260 S.E.2d 491 (1979); P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979) (decided under former Code 1933, § 38-202); Wilson v. State, 153 Ga. App. 215, 265 S.E.2d 79 (1980); Horne v. State, 155 Ga. App. 851, 273 S.E.2d 193 (1980) (decided under former Code 1933, § 38-202); Smith v. State, 247 Ga. 453, 276 S.E.2d 633 (1981);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).
Evidence of victim's violent character may be admitted when defendant acted in self-defense.
- Charge that proof of the violent and turbulent character of the deceased is admissible only when it is shown prima facie that the deceased was the assailant, and that the accused had been assaulted and was honestly seeking to defend oneself, was not error. Tatum v. State, 57 Ga. App. 849, 197 S.E. 51 (1938) (decided under former Code 1933, § 38-202); Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945); Beam v. State, 208 Ga. 497, 67 S.E.2d 573 (1951) (decided under former Code 1933, § 38-202); Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975); Maynor v. State, 241 Ga. 315, 245 S.E.2d 268 (1978) (decided under former Code 1933, § 38-202); Smith v. State, 247 Ga. 453, 276 S.E.2d 633 (1981); Hanlon v. State, 162 Ga. App. 46, 290 S.E.2d 285 (1982) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former O.C.G.A. § 24-2-2).
Proof of a victim's violent character becomes admissible when it is shown prima facie that the deceased was the assailant, that the accused had been assailed, and that the accused was honestly seeking to defend oneself. Williams v. State, 249 Ga. 6, 287 S.E.2d 31 (1982) (decided under former O.C.G.A. § 24-2-2); Cooper v. State, 249 Ga. 58, 287 S.E.2d 212 (1982);(decided under former O.C.G.A. § 24-2-2).
Victim's violent character and general reputation for violence were admissible when the codefendant arguably made a showing that defendant was honestly seeking to defend oneself rather than to act as the aggressor. Smith v. State, 267 Ga. 372, 477 S.E.2d 827 (1996), overruled on other grounds, 287 Ga. 646, 697 S.E.2d 757 (2010) (decided under former O.C.G.A. § 24-2-2).
Because a murder defendant did not assert a justification defense, there was no basis for defendant to seek to introduce evidence of victims' characters. Lance v. State, 275 Ga. 11, 560 S.E.2d 663, cert. denied, 537 U.S. 1050, 123 S. Ct. 620, 154 L. Ed. 2d 525 (2002), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018) (decided under former O.C.G.A. § 24-2-2).
Because the defendant failed to make a prima facie showing that the defendant acted in self-defense and evidence of the victim's propensity for violence could not be introduced, the defendant could not satisfy the requirement of demonstrating a pertinent trait of character of the alleged victim of the crime, and there was no need to address the defendant's contention that the court incorrectly applied the rule regarding the methods of proving character. Oliver v. State, 329 Ga. App. 377, 765 S.E.2d 606 (2014).
Since the defendant failed to make a prima facie showing that the defendant acted in self-defense when the defendant shot the victim because the defendant was the aggressor and the victim would have been justified in using force to subdue the defendant, the trial court did not abuse the court's discretion in excluding evidence of the victim's propensity for violence. Oliver v. State, 329 Ga. App. 377, 765 S.E.2d 606 (2014).
Evidence of victim's character when defendant claims self defense.- Assuming without deciding that the defendant's inquiry into the victim's character would have been permitted, it was not an abuse of discretion to disallow the inquiry since the trial court had already afforded the defendant, who was claiming self defense, wide latitude to cross-examine a witness by asking the witness about the details of the two armed robbery charges that had been brought against the victim. Griffin v. State, Ga. , S.E.2d (Sept. 28, 2020).
Victim's general character for violence cannot be established by proof of prior specific acts of violence, but a defendant should be allowed to offer evidence that the victim had a reputation for a particular type of violence. Williams v. State, 249 Ga. 6, 287 S.E.2d 31 (1982) (decided under former O.C.G.A. § 24-2-2).
Court of appeals erred in reversing the trial court's order refusing to allow the defendant to testify about a previous incident of violence the victim allegedly committed against third parties in support of a justification defense under O.C.G.A. § 16-3-21(a) because the defendant sought to introduce alleged evidence in the form of unsupported assertions by the defendant as to what was in the defendant's mind at the time the defendant killed the victim. State v. Hodges, 291 Ga. 413, 728 S.E.2d 582 (2012) (decided under former O.C.G.A. § 24-2-2).
Evidence of prior incident involving victim irrelevant and inadmissible.
- Trial court did not err by barring evidence that the victim was involved in an altercation with a third party on the evening before the killing because there was no evidence to support a claim of self-defense and, thus, the alleged earlier incident involving the victim and a third person was irrelevant to any issue presented at trial. White v. State, 307 Ga. 882, 838 S.E.2d 828 (2020).
Evidence of victim's good character.
- Trial counsel performed deficiently as counsel should have objected to the inadmissible statements of three witnesses that improperly placed the victim's good character in issue, but counsel's deficient performance was not prejudicial because, considering the totality of the evidence, there was no reasonable probability that, had trial counsel objected to that testimony, the outcome in the defendant's case would have been different. Revere v. State, 302 Ga. 44, 805 S.E.2d 69 (2017).
In the defendant's murder trial, when the defendant's sole defense was that the victims were the first aggressors, justifying the shooting, error in the state's premature introduction of evidence of the deceased victim's character for not fighting, O.C.G.A. § 24-4-404(a)(2), before the defendant's evidence that the victims were the aggressors was harmless. Mondragon v. State, 304 Ga. 843, 823 S.E.2d 276 (2019).
Evidence of victim's drug use.
- Trial court did not err by refusing to allow the defendant to show that crack cocaine was found inside the ambulance that transported the victim to the hospital as a police officer testified that crack cocaine was found in the ambulance; moreover, defendant was permitted to impeach the victim with certified copies of the victim's prior felony convictions, including two for drug possession. Haggins v. State, 277 Ga. App. 742, 627 S.E.2d 448 (2006) (decided under former O.C.G.A. § 24-2-2).
Trial court did not abuse the court's discretion in granting the state's motion in limine to exclude evidence of the victim's cocaine use under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) because the evidence as to effects of the cocaine in the victim's body was merely speculative since there was no evidence about the quantity of cocaine in the victim's system or when the cocaine was ingested; evidence of drug use is inadmissible when the evidence is intended only to impugn a victim's character and has no relevance to any disputed issues in the case. Askew v. State, 310 Ga. App. 746, 713 S.E.2d 925 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial court did not plainly err in granting the state's motion to exclude evidence of the victim's drug dealing and drug use as the jury heard testimony from multiple witnesses and the defendant that the victim tended toward violence and frequently directed that violence at the defendant; and, whether the victim's drug use exacerbated such violence would be of marginal value to a jury that was aware of the victim's violence toward the defendant. Thus, the trial court did not violate the defendant's right to present a full and fair defense by excluding evidence of the victim's drug use and related criminal history. Martin v. State, 306 Ga. 747, 833 S.E.2d 122 (2019).
Evidence of victim's relationships.
- In a murder prosecution in which the victim's body was never found, evidence of the victim's relationships at the time of the victim's disappearance was relevant because it rendered the inference that the victim did not run away but was killed more probable than it would be without the evidence. Hinton v. State, 280 Ga. 811, 631 S.E.2d 365 (2006) (decided under former O.C.G.A. § 24-2-2).
Whether or not the victim was a prostitute was not relevant to the determination of who killed the victim. Bryant v. State, 249 Ga. 242, 290 S.E.2d 75 (1982) (decided under former O.C.G.A. § 24-2-2).
School disciplinary record of victim inadmissible.
- Trial court did not err in granting the state's motion in limine, which sought to prevent the defendant from introducing the victim's school records in an attempt to show that the victim had disciplinary problems, since such evidence was absolutely irrelevant to any issue in the prosecution for child molestation. Lively v. State, 157 Ga. App. 419, 278 S.E.2d 67 (1981) (decided under former Code 1933, § 38-202).
Victim's bomb threat irrelevant.
- Because making a bomb threat did not unambiguously reflect on a child victim's credibility, honesty, or imagination, was not related to the victim's testimony, and was not material to the issues on trial, the trial court did not abuse the court's discretion in refusing to allow the defense to introduce the evidence under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405). Bentley v. State, 277 Ga. App. 483, 627 S.E.2d 61 (2006) (decided under former O.C.G.A. § 24-2-2).
Evidence of assault victim's character not relevant.
- In a prosecution for aggravated assault, to the extent that the defendant sought to attack the victim's character through testimony about the victim's use of alcohol during pregnancy, whether the victim hid the defendant from the police, and the victim's alleged jealousy over the defendant's new relationship, the trial court did not abuse the court's discretion in limiting the scope of cross-examination to the issues directly related to the incidents. Massey v. State, 278 Ga. App. 303, 628 S.E.2d 706 (2006) (decided under former O.C.G.A. § 24-2-2).
Testimony as to the general reputation of the deceased, when admissible in a murder case, may come from two sources: the accused or a witness. Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975) (decided under former Code 1933, § 38-202).
Evidence of victim's violent acts.
- Defendant was not improperly prohibited from introducing evidence of a victim's violent acts against third persons during the state's case, despite evidence that: (1) the victim pinned defendant against a wall; (2) defendant ran into defendant's house screaming that the defendant had been robbed and reported the robbery to the police; (3) defendant had fresh cuts or bruises on defendant's neck; and (4) defendant reported to police that defendant had shot at someone as defendant tried to fend off a robber; it did not necessarily follow that defendant honestly sought to defend oneself when defendant fired a gun at the victim, given evidence that the victim turned away or ran from defendant before the shooting and that the victim was shot in the back from at least two and one-half feet away. Nelloms v. State, 273 Ga. App. 448, 615 S.E.2d 153 (2005) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err when the court denied the defendant's ineffective assistance of counsel claim because counsel testified that counsel attempted to produce evidence of specific acts of violence by the victim against third persons but because of lack of time was not able to do so; counsel further testified that counsel did not strenuously pursue a continuance for more time to gather such evidence because of the age of the case and because counsel believed such motion for continuance would be unsuccessful. Rafi v. State, 289 Ga. 716, 715 S.E.2d 113 (2011) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in refusing to let the defendants call the co-indictee as a witness to testify about the prior acts of violence the co-indictee committed in 1994 for choking the co-indictee's mother and in 2004 for choking another person because the co-indictee's counsel announced that the co-indictee would invoke the co-indictee's privilege against self-incrimination as to any questions about those prior acts and the trial court reasonably concluded that any questions as to the co-indictee's past violent acts could incriminate the co-indictee and affect the co-indictee's pending trial. Brown v. State, 295 Ga. 804, 764 S.E.2d 376 (2014).
Even if the first defendant's counsel performed deficiently by failing to obtain the victim's criminal history, which the first defendant alleged would have shown the existence of a prior incident of domestic violence in Alabama and the victim's propensity for violence, the first defendant failed to show prejudice because it was not clear that any such specific incident of violence would have been admissible at the first defendant's trial as the first defendant's case was tried after the enactment of Georgia's new Evidence Code; and because, at the motion for new trial hearing, the first defendant did not present any witnesses to authenticate the Alabama domestic violence police report. Ballard v. State, 297 Ga. 248, 773 S.E.2d 254 (2015).
Even if any of the victim's alleged prior crimes involved specific acts of violence, because the defendant never introduced into evidence at the motion for new trial hearing any of the victim's alleged prior convictions, the defendant could not support the defendant's claim that the defendant's counsel could have been ineffective for failing to attempt to introduce such evidence at trial. Revere v. State, 302 Ga. 44, 805 S.E.2d 69 (2017).
Trial court did not abuse the court's discretion in excluding evidence that the victim pulled a gun on a third person at a dice game the week prior to the murder because the defendant failed to show how that evidence met basic admissibility requirements as to relevancy and offered nothing more than speculation and conjecture that the third person could have been involved in the victim's murder, regardless of the applicability of O.C.G.A. § 24-4-404(b). Roberts v. State, 305 Ga. 257, 824 S.E.2d 326 (2019).
Trial counsel was not ineffective in failing to obtain and use at trial the services of an expert in the field of domestic violence because counsel did not believe it advisable to employ an expert witness to evaluate the defendant and to testify concerning battered person syndrome or other psychiatric disorders as the defendant's history was replete with violent tendencies that predated the defendant's relationship with the victim, and made the defendant look bad; and an expert's testimony attributing the defendant's violent response to the defendant's history with the victim could have opened the door to the state's adducing rebuttal evidence of the defendant's violent tendencies that trial counsel sought to have excluded. Martin v. State, 306 Ga. 747, 833 S.E.2d 122 (2019).
Evidence of victim's prior child molestation against defendant not admitted.
- In a defendant's trial for aggravated battery against a victim more than 65 years of age in violation of O.C.G.A. § 16-5-24(a) and (d), evidence that the victim had fondled the defendant's genitals when the defendant was 15 was not admissible under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) to support the defendant's claim of justification under O.C.G.A. § 16-3-21. Strozier v. State, 300 Ga. App. 199, 685 S.E.2d 743 (2009) (decided under former O.C.G.A. § 24-2-2).
Evidence that victim used cocaine.
- Whether the victim of an aggravated assault and false imprisonment was addicted to cocaine was irrelevant to the issue of whether defendant assaulted the victim and held the victim against the victim's will, and the trial court did not err in ruling that defendant could not present evidence of the victim's prior cocaine use other than certified copies of convictions. Harris v. State, 196 Ga. App. 304, 396 S.E.2d 288 (1990) (decided under former O.C.G.A. § 24-2-2).
In a prosecution for murder, the victim's prior conviction for possession of cocaine did not tend to prove a reputation for violence nor the reasonableness of defendant's belief that deadly force was necessary, and the court properly refused to admit such evidence. Russell v. State, 264 Ga. 121, 441 S.E.2d 750 (1994) (decided under former O.C.G.A. § 24-2-2).
Toxicology report showing the presence of cocaine metabolites in a homicide victim's blood was properly excluded because the evidence was too attenuated to warrant speculation about the effects of cocaine on the victim at the time of the shooting. Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006) (decided under former O.C.G.A. § 24-2-2).
Exchanging sex for drugs.
- Although the victim's past cocaine use was irrelevant, the defendant was allowed to discuss any arrangement that the victim had made with the defendant in exchange for sex and question the victim as to the victim's use of drugs on the night in question. Goodwin v. State, 208 Ga. App. 707, 431 S.E.2d 473 (1993) (decided under former O.C.G.A. § 24-2-2).
In a prosecution of defendant for possession of methamphetamine in defendant's body, evidence of prior convictions for the sale of that drug were not admissible. King v. State, 230 Ga. App. 301, 496 S.E.2d 312 (1998) (decided under former O.C.G.A. § 24-2-2).
Reckless behavior of victim.
- In a prosecution for involuntary manslaughter, the trial court did not abuse the court's discretion in disallowing evidence of the victim's past reckless conduct, which consisted of the testimony of a police officer that the victim had, on several occasions in the past, been found in the early morning hours intoxicated and sitting in the victim's wheelchair in the road, creating a dangerous condition. Casillas v. State, 233 Ga. App. 752, 505 S.E.2d 251 (1998) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying defendant's motion for mistrial after a witness testified to other drug transactions defendant was involved in even though defendant's general character and especially defendant's conduct in other drug transactions were irrelevant matter as such statements were unsolicited, the trial court immediately instructed the jury to disregard the testimony, and the witness did not tell the jury anything the jury did not already know about defendant. McCollum v. State, 258 Ga. App. 574, 574 S.E.2d 561 (2002) (decided under former O.C.G.A. § 24-2-2).
Trial court's refusal to allow defendant to introduce a certified copy of the victim's prior conviction for simple assault, even though the testimony of the investigating officer was also offered, was harmless error in light of the fact that the trial court permitted the defense to present testimony from five witnesses concerning other incidents. Jones v. State, 265 Ga. App. 97, 592 S.E.2d 888 (2004) (decided under former O.C.G.A. § 24-2-2).
In the defendant's trial for homicide by vehicle in the first degree, serious injury by vehicle, driving under the influence of alcohol, and reckless driving, the trial court did not abuse its discretion in excluding as irrelevant evidence of a victim's two prior traffic citations because a trooper testified unequivocally that the impact occurred in the lane in which the victim and the victim's family were traveling, and there was no evidence introduced to the contrary; moreover, there was no evidence that the victim was speeding at the time of the fatal collision. Potter v. State, 301 Ga. App. 411, 687 S.E.2d 653 (2009) (decided under former O.C.G.A. § 24-2-2).
Evidence of victim's criminal activity.
- Evidence that the victim was driving an allegedly stolen vehicle at the time the victim was shot by defendant was not relevant to the defense of justification. Wilson v. State, 262 Ga. 588, 422 S.E.2d 536 (1992), overruled on other grounds by Sanders v. State, 281 Ga. 36, 635 S.E.2d 772 (2006) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in denying the defendant's motion to admit evidence of the victim's robbery conviction because the defendant failed to meet the requirements for admission of evidence of violent acts by the victim against third parties by relying on the language of the indictment associated with the victim's conviction and offering no witnesses or other evidence to establish the facts underlying the crime; the trial transcript did include defense counsel's unchallenged recitation of the allegation set forth in the indictment, and although that language set forth certain elements of the crime of robbery, O.C.G.A. § 16-8-40(a)(1) and (2), it did not provide a factual basis for determining whether an act of violence was involved in the robbery at issue. Arnold v. State, 286 Ga. 418, 687 S.E.2d 836 (2010) (decided under former O.C.G.A. § 24-2-2).
Evidence of violent acts committed by the victim against either the defendant or against third parties may be introduced by a criminal defendant claiming justification and that is so because the key showing must be that the victim was the aggressor in the fatal encounter. State v. Hodges, 291 Ga. 413, 728 S.E.2d 582 (2012) (decided under former O.C.G.A. § 24-2-2).
5. Jury Instructions
Jury charge as to good character.
- Good character affords no license for committing a crime, and it is entirely proper to charge the jury that the jury would be authorized to convict, notwithstanding proof of good character, if upon consideration of all the evidence the jury believes the defendant guilty beyond a reasonable doubt. Mote v. State, 184 Ga. App. 333, 361 S.E.2d 523 (1987) (decided under former O.C.G.A. § 24-2-2).
Jury charge on similar transaction evidence admissibility correct.
- Trial court did not commit plain error by charging the jury concerning the limited use of sexual assault extrinsic evidence admitted pursuant to O.C.G.A. § 24-4-413 because the charge was not erroneous as such evidence was admissible as relevant. Marlow v. State, 337 Ga. App. 1, 785 S.E.2d 583 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206, 789 S.E.2d 391 (2016).
Instruction on defense of good character must generally be requested.
- Except in "exceptional cases," such as one in which the good character defense is the sole defense against the uncorroborated allegations of the prosecuting witness and the state's case, apart from those allegations, is based solely on highly tenuous circumstances and is extremely weak, the court's failure to give an instruction on good character, absent a timely request, does not warrant a new trial. Riceman v. State, 166 Ga. App. 825, 305 S.E.2d 595 (1983) (decided under former O.C.G.A. § 24-2-2).
Mistrial not warranted when curative instruction given.
- After a witness stated in an answer not responsive to the question asked of the witness that the defendant and the victim had smoked crack cocaine together, the trial court properly denied the defendant's motion for a mistrial on the ground that the defendant's character had been improperly put in issue; a curative instruction was sufficiently prompt and clear. Rhines v. State, 288 Ga. App. 128, 653 S.E.2d 500 (2007) (decided under former O.C.G.A. § 24-2-2).
Trial court properly denied a mistrial based on allegedly improper character evidence after an officer did not specifically indicate that defendant had a criminal record when asked if the officer knew defendant, and after the trial court gave an adequate curative instruction, the officer clarified that the officer knew defendant to be a nice person and outstanding football player; moreover, even if there was error, it was harmless in light of the overwhelming evidence of guilt. Gartrell v. State, 291 Ga. App. 21, 660 S.E.2d 886 (2008) (decided under former O.C.G.A. § 24-2-2).
As the trial court instructed the jury to disregard the information contained in a witness's non-responsive answer to a question from the prosecutor, which impugned the defendant's character, the defendant was not entitled to a mistrial. Patterson v. State, 285 Ga. 597, 679 S.E.2d 716 (2009), cert. denied, 558 U.S. 1117, 130 S. Ct. 1051, 175 L. Ed. 2d 892 (2010) (decided under former O.C.G.A. § 24-2-2).
Trial court did not err in failing to grant a mistrial based on the prosecutor's allegedly impermissible argument because the trial court immediately reminded the jury of the limited purpose for which the jury could consider the other acts evidence regarding two earlier instances in which the defendant obstructed a law enforcement officer; and that reminder supplemented the other points in the trial when the trial court instructed the jury as to the limited purpose of the other acts evidence. Green v. State, 339 Ga. App. 263, 793 S.E.2d 156 (2016).
New trial denied when defendant failed to object to curative instruction given.
- Defendant's motion for a new trial was properly denied because the state presented sufficient identification and circumstantial evidence linking the defendant to a burglary, including similar transaction evidence of a prior burglary, and in response to trial counsel's objection to the state's comment that the defendant was under the influence of drugs or alcohol at the time of the offense, the defendant did not object to the curative instruction given. Bryant v. State, 285 Ga. App. 508, 646 S.E.2d 717 (2007) (decided under former O.C.G.A. § 24-2-2).
Limiting instruction on consideration of prior conviction proper.
- Trial court's charge on the jury's consideration of the defendant's prior 1989 convictions did not likely affect the outcome of the proceedings because the trial court gave the jurors a limiting instruction prohibiting the jurors from considering the 1989 convictions for any purpose other than course of conduct and modus operandi; and the jury charge as given and when considered as a whole properly set forth the elements of the charged crimes, instructed the jury on the state's burden of proof and burden to show intent, and instructed the jury that only slight evidence from another source was necessary to support the accomplice's testimony. Paschal v. State, 335 Ga. App. 411, 780 S.E.2d 681 (2015).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29 Am. Jur. 2d, Evidence, § 368 et seq.
C.J.S.- 32 C.J.S., Evidence, §§ 568 et seq., 776 et seq.
ALR.
- Propriety of instructions as to the significance of evidence concerning the defendant's good character as an element bearing upon the question of reasonable doubt, 10 A.L.R. 8; 68 A.L.R. 1068.
Habit, custom, or reputation of one injured or killed as evidence of his own negligence or freedom from negligence, 15 A.L.R. 125; 18 A.L.R. 1109.
Admissibility of evidence of good reputation for truth and veracity of witness who has not been impeached, 15 A.L.R. 1065; 33 A.L.R. 1220.
Admissibility of evidence of other offenses in criminal prosecution to prove identity of defendant, 22 A.L.R. 1016; 27 A.L.R. 357; 63 A.L.R. 602.
Evidence of other forgeries or alterations on issue as to forgery or alteration in civil cases, 33 A.L.R. 427.
Admissibility of evidence as to other's character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 64 A.L.R. 1029; 1 A.L.R.3d 571.
Admissibility on question of justification for dismissal or discharge of officer or employee for incompetency, of evidence as to his experience in other similar office or employment, 65 A.L.R. 1096.
Admissibility on question as to quality, condition, or capacity of articles, machines, or apparatus, of evidence in regard to similar things manufactured or sold by the same person, 66 A.L.R. 81.
Admissibility of parol evidence as to proceedings at meetings of stockholders or directors of private corporations or associations, 66 A.L.R. 1328; 48 A.L.R.2d 1259.
Negative proof of good character or reputation of defendant in criminal case, 67 A.L.R. 1210.
Admissions of partner as to past transactions or events as evidence against firm or other partner, 73 A.L.R. 447.
Admissibility of evidence of good character of party for truth and honesty on issue of fraud in civil action, 78 A.L.R. 643.
Admissibility to establish fraudulent purpose or intent, in prosecution for obtaining or attempting to obtain money or property by false pretenses, of evidence of similar attempts on other occasions, 80 A.L.R. 1306; 78 A.L.R.2d 1359.
Admissibility of evidence of other accidents on issue of negligence in respect of maintenance of electric wires, rails, etc., 81 A.L.R. 685.
Admissibility, in prosecution for violation of intoxicating liquor law, of general reputation of person with whom defendant had dealings, as tending to show such violation, 83 A.L.R. 1401.
Admissibility, in prosecution for receiving stolen property, of evidence of transactions other than, but similar to, that upon which the prosecution is based, for purpose of showing guilty knowledge or intent, 105 A.L.R. 1288.
Admissibility of evidence of reputation on issue of mental condition, or testamentary or contractual incapacity or capacity, 105 A.L.R. 1443.
Admissibility of evidence in a bastardy proceeding of defendant's reputation or character as to chastity and morality, 110 A.L.R. 335.
Admissibility on issue of self-defense (or defense of another), on prosecution for homicide or assault, of evidence of specific acts of violence by deceased, or person assaulted, against others than defendant, 121 A.L.R. 380.
Admissibility in criminal prosecution of evidence of notice of one other than defendant to commit the crime, 121 A.L.R. 1362.
Admissibility against defendant in criminal case of evidence, otherwise competent, as to other offense as affected by fact that a charge for such offense is pending against him, 125 A.L.R. 1036.
Admissibility, in action against manufacturer, packer, or bottler for personal injury due to defective or injurious condition of article, of evidence that like products were free from, or were subject to, defective or injurious conditions, 127 A.L.R. 1194.
Admissibility, on cross-examination or otherwise, of evidence that witness in a civil action had been under arrest, indictment, or other criminal accusation on a charge growing out of the accident, transaction, or occurrence involved in the civil action, 149 A.L.R. 935.
Admissibility of evidence of character or reputation of party in civil action for assault (other than for purpose of impeaching him as a witness), 154 A.L.R. 121.
Motive in bringing action or choosing the forum or venue as proper matter for cross-examination, 157 A.L.R. 604.
Admissibility, in prosecution for sexual offense, of evidence of other similar offenses, 167 A.L.R. 565; 77 A.L.R.2d 841; 2 A.L.R.4th 330.
Admissibility and probative force, on issue of competency to execute an instrument, of evidence of incompetency at other times, 168 A.L.R. 969.
Admissibility in criminal case of evidence relevant to the crime charged, as affected by incidental disclosure of another crime by defendant, 170 A.L.R. 306.
Admissibility, in negligence action against bank by depositor, of evidence as to custom of banks in locality in handling and dealing with checks and other items involved, 8 A.L.R.2d 446.
Admissibility of evidence as to financial condition of debtor on issue as to payment of debt, 9 A.L.R.2d 205.
Admissibility and effect of evidence or comment on party's military service or lack thereof, 9 A.L.R.2d 606; 24 A.L.R.6th 747.
Admissibility, in prosecution based on abortion, of evidence of commission of similar crimes by accused, 15 A.L.R.2d 1080.
Admissibility of evidence that defendant in negligence action has paid third persons on claims arising from the same transaction or incident as plaintiff's claim, 20 A.L.R.2d 304.
Admissibility, in civil motor vehicle accident case, of evidence that driver was or was not involved in previous accidents, 20 A.L.R.2d 1210.
Cross-examination of automobile driver in civil action with respect to arrest or conviction for previous traffic offenses, 20 A.L.R.2d 1217; 88 A.L.R.3d 74.
Impeachment of witness by evidence or inquiry as to arrest, accusation, or prosecution, 20 A.L.R.2d 1421.
Admissibility of evidence of unperformed compromise agreement, 26 A.L.R.2d 858.
Admissibility in homicide prosecution for purpose of showing motive of evidence as to insurance policies on life of deceased naming accused as beneficiary, 28 A.L.R.2d 857.
Prejudicial effect of admission of evidence as to Communist or other subversive affiliation or association of accused, 30 A.L.R.2d 589.
Pardon as affecting impeachment by proof of conviction of crime, 30 A.L.R.2d 893.
Admissibility, in forgery prosecution, of other acts of forgery, 34 A.L.R.2d 777.
Admissibility, in prosecution for illegal sale of intoxicating liquor, of other sales, 40 A.L.R.2d 817.
Admissibility, in robbery prosecution, of evidence of other robberies, 42 A.L.R.2d 854.
Admissibility of evidence of absence of other accidents or injuries from a customary practice or method asserted to be negligent, 42 A.L.R.2d 1055.
Admissibility, in action involving motor vehicle accident, of evidence as to manner in which participant was driving before reaching scene of accident, 46 A.L.R.2d 9.
Admissibility of evidence showing plaintiff's antecedent intemperate habits, in personal injury motor vehicle accident action, 46 A.L.R.2d 103.
Admissibility of evidence of precautions taken, or safety measures used, on earlier occasions at place of accident or injury, 59 A.L.R.2d 1379.
Admissibility, in prosecution for gambling or gaming offense, of evidence of other acts of gambling, 64 A.L.R.2d 823.
Admissibility, in civil assault and battery action, of similar acts or assaults against other persons, 66 A.L.R.2d 806.
Admissibility, in prosecution for maintaining liquor nuisance, or evidence of general reputation of premises, 68 A.L.R.2d 1300.
Admissibility, in prosecution for criminal burning of property, or for maintaining fire hazard, of evidence of other fires, 87 A.L.R.2d 891.
Admissibility, in prosecution for assault or similar offense involving physical violence, of extent or effect of victim's injuries, 87 A.L.R.2d 926.
Admissibility of evidence of accused's good reputation as affected by remoteness of time to which it relates, 87 A.L.R.2d 968.
Admissibility on behalf of accused of evidence of similar acts or transactions tending to rebut fraudulent intent, 90 A.L.R.2d 903.
Admissibility, in prosecution for illegal sale of narcotics, of evidence of other sales, 93 A.L.R.2d 1097.
Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for homicide, 98 A.L.R.2d 6.
Effect of prosecuting attorney asking defense witness other than accused as to prior convictions where he is not prepared to offer documentary proof in event of denial, 3 A.L.R.3d 965.
Impeachment of witness with respect to intoxication, 8 A.L.R.3d 749.
Propriety and prejudicial effect of trial court's limiting number of character or reputation witnesses, 17 A.L.R.3d 327.
Propriety of cross-examining witness as to illicit relations with defendant in criminal case, 25 A.L.R.3d 537.
Admissibility of evidence of habit, customary behavior, or reputation as to care of motor vehicle driver or occupant, on question of his care at time of occurrence giving rise to his injury or death, 29 A.L.R.3d 791.
Malpractice: admissibility of evidence that defendant physician has previously performed unnecessary operations, 33 A.L.R.3d 1056.
Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8.
Prejudicial effect of prosecutor's reference in argument to homosexual acts or tendencies of accused which are not material to his commission of offense charged, 54 A.L.R.3d 897.
Admissibility, in disputed paternity proceedings, of evidence to rebut mother's claim of prior chastity, 59 A.L.R.3d 659.
Admissibility, in action against notary public, of evidence as to usual business practice of notary public of identifying person seeking certificate of acknowledgment, 59 A.L.R.3d 1327.
Admissibility of evidence of other offenses in rebuttal of defense of entrapment, 61 A.L.R.3d 293.
Admissibility of evidence of subsequent repairs or other remedial measures in products liability cases, 74 A.L.R.3d 1001; 38 A.L.R.4th 583.
Admissibility in criminal case, on issue of defendant's guilt, of evidence that third person has attempted to influence a witness not to testify or to testify falsely, 79 A.L.R.3d 1156.
Admissibility of testimony as to general reputation at place of employment, 82 A.L.R.3d 525.
Accused's right to discovery or inspection of records of prior complaints against, or similar personnel records of, peace officer involved in the case, 86 A.L.R.3d 1170.
Admissibility of evidence of, or propriety of comment as to, plaintiff spouse's remarriage, or possibility thereof, in action for damages for death of other spouse, 88 A.L.R.3d 926.
Admissibility of evidence of character or reputation of party in civil action for assault on issues other than impeachment, 91 A.L.R.3d 718.
Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.
Use of unrelated misdemeanor conviction (other than for traffic offense) to impeach general credibility of witness in state civil case, 97 A.L.R.3d 1150.
Admissibility of evidence of character or reputation of party in civil action for sexual assault on issues other than impeachment, 100 A.L.R.3d 569.
Admissibility of evidence of accused's drug addiction or use to show motive for theft of property other than drugs, 2 A.L.R.4th 1298.
Admissibility and effect, on issue of party's credibility or merits of his case, of evidence of attempts to intimidate or influence witness in civil action, 4 A.L.R.4th 829.
Admissibility of evidence of accused's membership in gang, 39 A.L.R.4th 775.
Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203.
Products liability: admissibility of evidence of absence of other accidents, 51 A.L.R.4th 1186.
Habit or routine practice evidence under Uniform Evidence Rule 406, 64 A.L.R.4th 567.
Admissibility of evidence in homicide case that victim was threatened by other than defendant, 11 A.L.R.5th 831.
Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.
Admissibility and prejudicial effect of evidence, in criminal prosecution, of defendant's involvement with witchcraft, satanism, or the like, 18 A.L.R.5th 804.
Admissibility of evidence of commission of similar crime by one other than accused, 22 A.L.R.5th 1.
Admissibility of evidence relating to accused's attempt to commit suicide, 73 A.L.R.5th 615.
Application of "doctrine of chances" in homicide, sexual crimes, and other offenses against the person, 11 A.L.R.7th 1.
Application of "doctrine of chances" in criminal offenses against property, 11 A.L.R.7th 2.