Cridiso v. State, A91A0455

• Decision Date: 08 July 1991
• Docket Number: No. A91A0455,A91A0455
• Citation: 408 S.E.2d 153,200 Ga.App. 342
• Parties: CRIDISO v. The STATE.
• Court: Georgia Court of Appeals

Page 153

408 S.E.2d 153

200 Ga.App. 342

CRIDISO v. The STATE.

No. A91A0455.

Court of Appeals of Georgia.

July 8, 1991.

Steven L. Harris, Fayetteville, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Sylvia A. Martin, Rebecca A. Keel, Asst. Dist. Attys., for appellee.

COOPER, Judge.

Appellant was convicted by a jury of burglary and appeals the denial of his motion for new trial raising five enumerations of error.

1. Appellant first argues that the trial court erred in admitting similar crime evidence without requiring the State to first specify with particularity which of the issues the similar crime evidence was being offered to prove, i.e. identity, motive, modus operandi, course of operation or bent of mind and that the trial court should have instructed the jury to limit its consideration of the similar crime evidence to only those articulated issues. Without such a requirement, appellant argues, an accused is placed in a position of having to defend or rebut any and all permissible purposes for the admission of the similar transaction evidence, which is an impermissible burden to place on an accused.

The law is well-settled in Georgia that testimony concerning similar crimes is admissible for the limited purpose of showing identity, motive, plan, scheme, bent of mind and course of conduct, if the independent crimes are similar or logically connected to the crime for which the accused is on trial. Such evidence is relevant because "[p]roof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged." State v. Johnson, 246 Ga. 654(1), 272 S.E.2d 321 (1980). Appellant has failed to cite any precedent which would restrict the admissibility of similar crime evidence in the manner requested by appellant, nor has he raised any arguments which would persuade this court to establish such a rule at this time. If similar crime evidence is relevant to the issues at hand and probative of identity, motive, plan, scheme, bent of mind or course of conduct, then the State may offer such evidence to prove any or all of said issues. See, e.g. Williams v. State, 251 Ga. 749, 785, 312 S.E.2d 40 (1983).

The trial court properly instructed the jury, without request, to consider the similar crime evidence for the limited purpose of showing identity, plan, motive, scheme, bent of mind or course of conduct. State v. Johnson, supra 246 Ga. at 656, 272 S.E.2d 321. However, for the reasons stated above, the trial court was not required to further limit the jury's consideration of the similar crime evidence in the manner asserted by appellant. Moreover, appellant never requested the trial court to instruct the jury to limit its consideration of the similar crime evidence in the manner now argued on appeal, and this court has repeatedly held that failure to instruct the jury as to the limited purpose for which evidence is offered, is not error in the absence of a request. See, e.g., Fussell v. State, 187 Ga.App. 134(3), 369 S.E.2d 511 (1988).

2. In his second enumeration of error, appellant contends that the trial court erred in admitting evidence that appellant pled guilty to four counts of burglary in 1986. " '(B)efore 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.' [Cit.]" Masters v. State, 186 Ga.App. 795(2), 368 S.E.2d 557 (1988). "Although there must exist 'sufficient similarities' ..., the two occurrences need not be identical. [Cit.]" Brown v. State, 197 Ga.App. 155, 156, 398 S.E.2d 34 (1990). Lapse of time between the commission of prior similar crimes and the commission of the offense currently at trial is only one factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact. Oller v. State, 187 Ga.App. 818(2), 371 S.E.2d 455 (1988). We have carefully reviewed the evidence and find the four previous burglary convictions in 1986 to be sufficiently similar to the circumstances of the present offense and probative of appellant's identity in that all five burglaries involved similar schemes, methods and designs. See, e.g. Martin v. State, 198 Ga.App. 488, 402 S.E.2d 95 (1991); Masters v. State, supra. Accordingly, the trial court did not abuse its discretion in allowing evidence of appellant's prior burglary convictions for the limited purposes for which the jury was properly instructed.

3. Appellant asserts in his third enumeration of error that the trial court erred in admitting into evidence certified copies of his previous burglary convictions which included the sentences received by appellant and an order that appellant be evaluated for drug addiction, submit to random drug testing and complete a drug treatment program. "We share appellant's concern here that the sentence in a prior offense does not show motive, intent, scheme, and bent of mind; however, appellant must show not only error but harm. [Cits.] While the better method would be not to admit the sentence in a prior offense where a similar transaction is involved, in the case sub judice it is 'highly probable' that the admission of the sentence...