Harris v. State
| Decision Date | 28 June 1996 |
| Docket Number | No. A96A1112,A96A1112 |
| Citation | 222 Ga.App. 52,473 S.E.2d 232 |
| Parties | HARRIS v. The STATE. |
| Court | Georgia Court of Appeals |
Stanley C. House, Augusta, for appellant.
Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.
Donald Harris was convicted of armed robbery, possession of a firearm during commission of a felony crime, and possession of a firearm by a convicted felon. He appeals from the denial of his amended new trial motion and his armed robbery conviction. Held:
1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
2. Appellant has combined his argument and citation of authority as to the first and second enumerations of error, asserting the trial court erred in admitting in evidence testimony about his prior armed robbery conviction in 1984. Appellant contends that the three affirmative showings required by Williams v. State, 261 Ga. 640, 409 S.E.2d 649, and progeny, were not made; in particular, he claims that there was no showing of sufficient connection or similarity of the prior crime to support its admission as similar transaction evidence.
The facts of this case are substantially as follows: In February 1994, three employees of a Hardee's fast-food restaurant, located in Richmond County, started to leave the store after closing when they were confronted by a masked black male who was armed with a pistol. His mask was made from a woman's stocking. He ordered the employees back into the store and made them lie down with their faces pressed against the surface of the floor while he ransacked the premises. The robber then ordered one employee who was lying on the floor to open the store safe. He departed the premises after taking money from both the safe and a change fund cabinet. Two employees testified that they immediately knew the robber's identity, because he had worked at the store until one week to a month before the robbery. One of the employees had worked with appellant in the store approximately three or four times a week for about six months prior to the robbery; both men were cooks. The employees recognized appellant's voice, some of the clothing appellant was wearing, and also identified appellant's general features (e.g., his broken nose) through the stocking mask. Appellant previously had worn the identified articles of clothing to work and on one occasion had worn the woman's stocking (rolled up on top of his head) to work. When the police arrived, the two employees identified appellant by name as the robber. The employees made an in-court identification of appellant. Appellant pled not guilty and presented an alibi defense; thus, identity was an issue for jury resolution.
The facts of appellant's armed robbery offense in August 1984 are as follows: Store witnesses gave the police a general physical description of the perpetrator, and appellant was arrested shortly thereafter approximately a block and a half from the crime scene. The perpetrator was described by witnesses as a black male who was armed with a handgun and wearing a woman's stocking or pantyhose mask. The perpetrator told the persons in the store to lie on the floor and then demanded money; he placed the money into a bag. Witnesses from the store subsequently came to the location where appellant was detained and identified him as the perpetrator of the crime. Appellant thereafter admitted that he was the perpetrator of the grocery store robbery.
(a) There are two conditions for admissibility of similar transaction evidence: (1) there must be some evidence establishing that the independent crime was committed by the defendant, and (2) there must be sufficient similarity or connection between the independent crime and the offense charged so that proof of the former tends to prove the latter. Chastain v. State, 260 Ga. 789, 790-791(3), 400 S.E.2d 329. 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. Depending on the purpose for which the extrinsic evidence is offered, the State may be required to prove a high degree of similarity between the relevant characteristics of the extrinsic crime and the crime charged, or it may have only the burden of showing a logical connection between the crimes which are essentially dissimilar. Ward v. State, 262 Ga. 293, 295(2), 417 S.E.2d 130. Further, mere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility. Oller v. State, 187 Ga.App. 818, 820(2), 371 S.E.2d 455.
The foundation for admission of similar transaction conduct can be established, as in this case, through the testimony of a witness. See generally Rash v. State, 207 Ga.App. 585, 586(2), 428 S.E.2d 799. The State need not prove that the conduct resulted in a conviction or criminal charge; Brown v. State, 201 Ga.App. 473, 474(2), 411 S.E.2d 360.
The record affirmatively reflects that the similar transaction evidence was admitted by the trial judge for its relevance in proving identity. Unlike the admission of similar transaction evidence to prove lascivious motivation or bent of mind (see, e.g., Oller, supra at 821(2), 371 S.E.2d 455), admission of such evidence to prove identity appears to require a showing of a greater degree of similarity to meet the test for admissibility, see Maggard v. State, 259 Ga. 291, 293(2), 380 S.E.2d 259 (dicta)....
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