Jackson v. State, A92A1019

• Decision Date: 21 September 1992
• Docket Number: No. A92A1019,A92A1019
• Citation: 205 Ga.App. 513,422 S.E.2d 673
• Parties: JACKSON v. The STATE.
• Court: Georgia Court of Appeals

Page 673

422 S.E.2d 673

205 Ga.App. 513

JACKSON v. The STATE.

No. A92A1019.

Court of Appeals of Georgia.

Sept. 21, 1992.

Toni M. Rodgers, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Nancy A. Grace, Asst. Dist. Atty., for appellee.

SOGNIER, Chief Judge.

Lynn Derek Jackson, Jr. was convicted of possession of cocaine with intent to distribute and sentenced to life in prison. He appeals.

1. In two enumerations of error appellant contends the State, in proffering evidence of a prior similar transaction, failed to comply with the requirements of Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991) and Stephens v. State, 261 Ga. 467, 405 S.E.2d 483 (1991). Specifically, appellant maintains the State failed to establish either before the court during the pretrial hearing or before the jury during trial the purpose for which the evidence was offered. Since appellant raised no objection below on that ground, under the decision of this court in Hunter v. State, 202 Ga.App. 195, 196-198(3), 413 S.E.2d 526 (1991), appellant is deemed to have waived these arguments and we are precluded from considering these enumerations on appeal. The only objection appellant interposed at trial was that the proffered evidence was unduly prejudicial, which cannot be construed to encompass the issues presented on appeal. "If the argument that appellant advances in his brief had been raised in the form of an objection in the trial court, it is possible that Stephens and Williams might warrant a reversal of appellant's conviction. In the absence of such an objection, however, any discussion of Stephens and Williams in the instant case is inappropriate." Hunter, supra, 202 Ga.App. at 198(3), 413 S.E.2d 526.

2. Appellant also contends that under Gilstrap v. State, 261 Ga. 798, 799(2), 410 S.E.2d 423 (1991), the trial court abused its discretion by allowing the State to present evidence of the prior similar transaction before presenting its case in chief. Again, however, appellant did not raise this objection at trial. We conclude that the same rationale advanced in Hunter, supra, 202 Ga.App. at 196-198(3), 413 S.E.2d 526, applies here, especially given that the Supreme Court noted in Gilstrap that objection was made at trial, and accordingly we must hold that this objection has been waived.

3. Appellant enumerates as error the trial court's instruction to the jury on the essential element of intent. Although he neither objected to this charge nor reserved objections at trial, appellant urges us to review this instruction pursuant to OCGA § 5-5-24(c) on the ground that it was substantially erroneous and harmful as a matter of law. " 'To constitute harmful error within the meaning of (OCGA § 5-5-24(c)), an erroneous charge ... must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.' [Cit.]" Greenhill v. State, 199 Ga.App. 218, 222, 404 S.E.2d 577 (1991). Upon review of the transcript, we agree with appellant that the challenged instruction falls within this standard. Phelps v. State, 192 Ga.App. 193, 195, 384 S.E.2d 260 (1989) (substantial errors in charge on essential elements "are usually harmful as a matter of law so as to invoke OCGA § 5-5-24(c)").

In the jury instruction at issue, the trial court stated that "there is no requirement under the law that the State either allege or prove that the defendant had an intent to distribute cocaine." This statement of the law was incorrect, for the State must prove the essential element of specific intent to distribute in order to establish a charge of possession of a controlled substance with intent to distribute. Talley v. State, 200 Ga.App. 442, 446, 408 S.E.2d 463 (1991). Although the court did give the jury a general instruction as to how criminal intent may be shown, we find the charge as a whole did not clearly remove the confusion created by the challenged charge so as to indicate to the jury that the State was required to prove the essential element of intent, and accordingly the court's failure to instruct correctly on this essential element was reversible error. See Phelps, supra.

Moreover, we do not agree with the State that the court's instruction was a mere verbal inaccuracy, resulting from a palpable slip of the tongue, that clearly could not have misled or confused the jury, see Gober v. State, 247 Ga. 652, 655(3), 278 S.E.2d 386 (1981), but instead find it was a clear misstatement of the applicable law, especially given that in the preceding sentence the court instructed that "[i]t is unlawful for any person...