Brown v. State, A90A1658

• Decision Date: 03 October 1990
• Docket Number: No. A90A1658,A90A1658
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

Page 34

398 S.E.2d 34

197 Ga.App. 155

BROWN v. The STATE.

No. A90A1658.

Court of Appeals of Georgia.

Oct. 3, 1990.

Kenneth D. Kondritzer, Grovetown, for appellant.

Lewis R. Slaton, Dist. Atty., Rebecca A. Keel, Kenneth D. Feldman and Joseph J. Drolet, Asst. Dist. Attys., for appellee.

BIRDSONG, Judge.

Dallas Leo Brown appeals his sentence and conviction of two counts of robbery. His sole enumeration is the trial court erred in admitting into evidence appellant's prior armed robbery conviction.

Evidence of other criminal acts of the defendant may be admitted if it is substantially relevant for some other purpose than to show a probability that the defendant committed the crimes on trial merely because he is a man of bad character. Rich v. State, 254 Ga. 11, 13(1), 325 S.E.2d 761, accord Robinson v. State, 192 Ga.App. 32, 33, 383 S.E.2d 593. Thus, such evidence is not admissible if its only effect is to place the defendant's bad character before the jury. Moore v. State, 254 Ga. 674, 676, 333 S.E.2d 605. "Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. However, before it 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. Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact." (Citations and punctuation omitted.) Oller v. State, 187 Ga.App. 818(2), 371 S.E.2d 455; see Robinson, supra 192 Ga.App. at 34, 383 S.E.2d 593; see Rich, supra 254 Ga. at 14, 325 S.E.2d 761 (eleven-year lapse of time did not preclude admissibility). Although there must exist "sufficient similarities" within the meaning of the above rule, the two occurrences need not be identical. See Brown v. State, 250 Ga. 66, 73(5), 295 S.E.2d 727.

In determining whether evidence of similar transactions meets the above admissibility requirements, an appellate court may look to all the competent evidence contained in the record. Compare Bethay v. State, 235 Ga. 371, 374-375, 219 S.E.2d 743 (overruled motion for directed verdict); Robinson v. State, 194 Ga.App. 432, 433(2), 390 S.E.2d 652, citing Stapleton v. State, 235 Ga. 513, 515(1), 220 S.E.2d 269 (voluntariness of confession); Newsome v. State, 192 Ga.App. 846(1), 386 S.E.2d 887, citing Jones v. State, 187 Ga.App. 421, 422-423, 370 S.E.2d 784 (legality of search); Walton v. State, 194 Ga.App. 490, 491(1), 390 S.E.2d 896 (disclosure of informant's identity); see also Goins v. State, 245 Ga. 62(2), 262 S.E.2d 818. Among the relevant evidence which may be considered are the admissions of fact, and the reasonable inferences which may be drawn therefrom, made by appellant during his in-court testimony (see generally Cape v. State, 165 Ga.App. 825, 303 S.E.2d 77), and the certified copy of defendant's plea of guilty to the four counts in the indictment and the four-count indictment, with the averments to each count, in State's Exhibit 1 of the trial record (see Masters v. State, 186 Ga.App. 795(2), 368 S.E.2d 557). As a general rule, Georgia law favors admission of any relevant evidence however slight its probative value. Whisnant v. State, 178 Ga.App. 742(1), 344 S.E.2d 536.

Competent evidence of record reveals the following similarities between the robberies committed in the case sub judice in September 1989, and the previous four armed robberies committed during the months of October and November 1979. Defendant was identified on the record as having pled guilty to the 1979 offenses, and as being one of the men who committed the two alleged 1989 robberies. The...