Cole v. State

• Decision Date: 03 December 1993
• Docket Number: No. A93A0987,A93A0987
• Parties: COLE v. The STATE.
• Court: Georgia Court of Appeals

Page 694

438 S.E.2d 694

211 Ga.App. 236

COLE v. The STATE.

No. A93A0987.

Court of Appeals of Georgia.

Dec. 3, 1993.

Richard L. Hodge, Albany, Mark G. Pitts, Americus, for appellant.

John R. Parks, Dist. Atty., Barbara A. Becraft, Asst. Dist. Atty., for appellee.

POPE, Chief Judge.

The defendant, David Cole, was convicted of rape, aggravated assault, and false imprisonment. His sole contention on appeal is that the trial court erred in admitting evidence of a similar transaction.

Cole and the victim were married in February 1987, separated in September 1990, and divorced in May 1991. The victim testified that on January 16, 1991, after taking one of their children to a doctor, Cole confronted her outside the doctor's office and forced her into his car, wielding a .44 Magnum pistol. Cole also had a shotgun on the floorboard of his car. He then drove to a fast food restaurant, bought some food, and took the victim and their child to his mother's residence.

The victim further testified that Cole demanded that his mother take the child somewhere else, and then forced the victim into the back bedroom, where he removed her clothing at gunpoint. Cole instructed the victim to kill herself by taking an overdose of pills, or else he would shoot her, but she refused. Cole then forced the victim to have sexual intercourse with him, while he held the gun in his hand. Afterwards, he instructed her to take a shower in an attempt to remove any evidence of the sexual attack.

The victim eventually persuaded Cole that a reconciliation was possible, and when his mother returned with the child, Cole drove the victim and their child back to her car in the doctor's parking lot. The victim subsequently reported the incident to the Lee County Sheriff's Department.

Cole testified to a different version of events at trial. According to Cole he met his estranged wife in the parking lot of the doctor's office, and requested her to have lunch and talk with him. After picking up some food, he drove his wife and child to his mother's residence, where they ate and talked. When his mother eventually arrived, Cole requested that she take the child somewhere else so that he and his wife could converse privately. Cole and his wife then continued to discuss matters, and subsequently retreated to the bedroom where they engaged in consensual sexual intercourse. Afterwards, his wife took a shower and redressed. When his mother returned with the child, Cole drove them back to the parking lot at the doctor's office.

After a hearing to determine its admissibility, the State also presented evidence of a prior similar offense. According to the testimony presented at trial, in 1986 or 1987 Cole forced his girl friend, with whom he was then living, into the bedroom of their residence and then forced her to have sex with him against her will. The witness testified she never reported the matter, and explained that she did not go to the police because she did not think she would be believed because Cole was also a police officer. She also acknowledged that she continued to live with Cole for approximately one-and-one-half months after the incident.

In his brief to this court Cole argues that the trial court erred in admitting evidence of a prior similar offense because the witness' testimony concerning the incident was so incredible and unbelievable that the State failed to prove that a prior crime in fact occurred and because the State failed to show the offenses were sufficiently similar. As to Cole's first contention, as the trial court noted, the credibility of the witnesses is for the jury to determine and the record reveals that the trial court instructed the jury accordingly. We also find no merit to Cole's contention concerning the dissimilarity of the offenses. " ' "The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses." (Cit.)' Stine v. State, 199 Ga.App. 898, 899(2) (406 SE2d 292) (1991). We agree with the trial court that a sufficient similarity [and/or logical connection] existed between the crime charged and the other rape[ ], such that proof of the latter tended to prove[ ] the former. Thus, the trial court did not err in allowing the similar transaction evidence." McCann v. State, 203 Ga.App. 880, 883(3), 418 S.E.2d 144 (1992). See also Wells v. State, 208 Ga.App. 298(2)(b), 430 S.E.2d 611 (1993).

The dissent, however, would reverse the conviction in this case because of the failure of the State and the trial court to comply, during the hearing on the admissibility of similar transaction evidence, with the procedure set out in Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991), noting particularly the failure of the State to show the purpose for which it sought to introduce the evidence. However, a review of defendant's brief on appeal shows that defendant has not made this argument to this court. Indeed defendant makes no reference in his brief on appeal to the Williams case, nor does defendant refer to any of the many appellate court cases which discuss and apply the holding enunciated in Williams. ¹ "As [defendant] has not cited Williams, supra, or its progeny, and has not advanced any argument in its appellate brief that the new affirmative findings requirements of Williams, supra, were not adequately complied with, any determination of the Williams requirements is not appropriate on appeal." Wells, 208 Ga.App. at 300(2)(a), 430 S.E.2d 611. See also Moore v. State, 207 Ga.App. 897, 898-899(1), 429 S.E.2d 340 (1993) and Hansen v. State, 205 Ga.App. 604, 607(1), 423 S.E.2d 273 (1992). As an intermediate appellate court, we are a court for the correction of errors which are properly preserved below and which are properly raised in this court. It is not the function of this court to raise and decide issues not complained of by the parties. See, e.g., Patterson v. State, 192 Ga.App. 449, 451(2), 385 S.E.2d 311 (1989). It follows that our review of this case is limited to those issues properly raised by defendant on appeal to this court. Id.

Moreover, we are also precluded from reaching the issue discussed by the dissent because defendant did not object at trial on this basis. "[T]he failure of a defendant to object to the introduction of similar transaction evidence on the basis that the State has not made a sufficient showing and/or the trial court has not made the requisite findings as required by Uniform Superior Court Rule 31.3(B) and our Supreme Court's decision in Williams precludes appellate consideration of those issues. See, e.g., Hunter v. State, 202 Ga.App. 195, 198(3), 413 S.E.2d 526 (1991) (holding 'nothing in ... Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court....')." Riddle v. State, 208 Ga.App. 8, 10(1)(b), 430 S.E.2d 153 (1993).

Although the dissent also asserts that defendant preserved his right to raise on appeal the alleged non-compliance with Williams because, apparently, defendant brought this issue to the attention of the trial court on his motion for new trial, this is not the type of alleged error which can be properly raised for the first time in a motion for new trial. " ' "Where appellant asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal." (Cit.) Appellate courts review enumerations for correction of errors of law committed by the trial court--where motions or objections are properly presented for a ruling by the trial court. (Cit.) Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review. (Cit.)' [Cits.]" Holland v. State, 197 Ga.App. 496, 497(1), 398 S.E.2d 810 (1990). Moreover, although it is true, as the dissent notes, that Williams had not been decided at the time of trial and thus defendant could not have been expected to have invoked that decision by name, the rules governing when similar transaction evidence is properly admissible at trial were extant long before the procedure outlined in Williams was established. If the defendant believed the other crimes evidence in this case was inadmissible not only because it was not sufficiently similar but also because it was not offered for a proper purpose or that the relevancy did not outweigh its prejudicial value, he should have so stated during the hearing. Furthermore, even if we assume that the issue addressed by the dissent was preserved for appellate review because the trial court ruled on it in the order denying the motion for new trial, such does not change the fact that defendant has not raised this issue on appeal. While it is true that error must be preserved below to be raised before this court, it is likewise true that we do not address all issues to which proper objection was taken below. It is the duty of the parties, not this court, to delineate the errors for consideration on appeal.

In sum, "any procedural defects in proof or presentation of the other-crimes evidence have been waived not only by defendant's failure to object at trial ... but by his failure to raise any such issue on appeal." Hansen v. State, 205 Ga.App. at 607, 423 S.E.2d 273. As the trial court's findings on those issues which were properly raised below and which are properly before this court for consideration were not clearly erroneous, see Stephens v. State, 261 Ga. 467, 469, n. 2, 405 S.E.2d 483 (1991), the judgment must be affirmed.

Judgment affirmed.

McMURRAY and BIRDSONG, P.JJ., and ANDREWS, JOHNSON and SMITH, JJ., concur.

BEASLEY, P.J., concurs in judgment only.

COOPER and BLACKBURN, JJ., dissent.

BLACKBURN, Judge, dissenting.

I disagree with the majority...