Brown v. State, 74498

• Decision Date: 30 June 1987
• Docket Number: No. 74498,74498
• Citation: 183 Ga.App. 476,359 S.E.2d 233
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

Page 233

359 S.E.2d 233

183 Ga.App. 476

BROWN v. The STATE.

No. 74498.

Court of Appeals of Georgia.

June 30, 1987.

Berry B. Earle III, Thomasville, for appellant.

H. Lamar Cole, Dist. Atty., James E. Hardy, Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Ira L. Brown, the defendant, appeals his conviction of two counts of sale of marijuana. On August 17, 1985, Mark Stewart, a special agent of the GBI, while conducting an undercover investigation in Thomasville, Georgia, purchased a package of marijuana from defendant Brown, while in the company of Special Agent Al Evans, GBI. Evans was passing through the same area on August 22, 1985, and met Brown. He made another purchase of marijuana. Both bags of marijuana tested positive in tests conducted at the Georgia Crime Lab. The State also introduced evidence of a similar transaction. On October 11, 1985, David Hufstetler, Commander of the Thomasville-Thomas County Drug Squad, saw Brown and a companion run across the road to a pickup truck in the same area where the two GBI agents said they had made their purchases from Brown. When Brown saw Officer Hufstetler, he threw a package across the pickup truck into the ditch. The package was retrieved by Hufstetler and it was a $10 package of marijuana. When the officer turned around, Brown was gone. The officer told a friend of Brown's to have Brown call him. Brown called and agreed to meet with the officer. At that meeting, Brown told him: "if I promise you that I'll quit selling reefer and get a job, will you not arrest me?" Officer Hufstetler declined the offer and arrested the defendant. On cross-examination, defendant's counsel introduced the fact that in regard to the similar transaction Brown was convicted on the lesser charge of possession of marijuana rather than the one for which indicted--possession with intent to distribute. The jury returned a verdict of guilty and Brown brings this appeal. Held:

1. Defendant assigns error to the ruling of the trial court in permitting introduction of the subsequent similar transaction on the basis that the prosecution "did not comply with the Uniform Superior Court Rule 31.3 by attaching copies of accusations or indictments, if any, and guilty pleas or verdicts." Rule 31.3 of the Uniform Superior Court Rules provides, inter alia, that the prosecution may request the court for leave to present evidence of similar transaction or occurrences, by filing notice with the court and served upon defendant's counsel, which "shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice." The notice in the instant case referred to a violation of the Georgia Controlled Substances Act on October 11, 1985, and referred to defendant's possession of marijuana with intent to distribute and his asking Hufstetler, when told he was arrested, if Hufstetler would let him go if he promised to get a job and quit selling dope.

Evidence of other "criminal acts" may be admissible to show motive, intent, absence of mistake or accident, plan or scheme, and identity. Walraven v. State, 250 Ga. 401, 408, 297 S.E.2d 278. It is not necessary that the other offenses must have resulted in trial or conviction. See Natson v. State, 242 Ga. 618(1), 250 S.E.2d 420, cert den. 441, U.S. 925, 99 S.Ct. 2036, 60 L.Ed.2d 399. Evidence of subsequent sales of drugs would be admissible in a trial for sale of marijuana. State v. Johnson, 246 Ga. 654(1), 272 S.E.2d 321. This is...