Riddle v. State, A92A2067

• Decision Date: 18 March 1993
• Docket Number: No. A92A2067,A92A2067
• Parties: RIDDLE v. The STATE.
• Court: Georgia Court of Appeals

Page 153

430 S.E.2d 153

208 Ga.App. 8

RIDDLE v. The STATE.

No. A92A2067.

Court of Appeals of Georgia.

March 18, 1993.

Hill & Henry, W. Ralph Hill, Jr., Lafayette, for appellant.

Ralph L. Van Pelt, Jr., Dist. Atty., Mary J. Palumbo, Asst. Dist. Atty., for appellee.

POPE, Chief Judge.

Defendant Johnny T. Riddle appeals his conviction for two counts of sexual battery, two counts of child molestation, and two counts of contributing to the delinquency of a minor.

1. Defendant argues the trial court erred in allowing the introduction of evidence of similar transactions without notice to the defendant or a pretrial hearing and by denying defendant's motion for mistrial based upon this evidence.

(a) In this enumeration defendant initially contends the trial court committed reversible error by allowing the State's first witness, the grandmother of two of defendant's alleged victims, to give certain testimony. The witness was asked if, prior to her grandson's telling her about what the defendant had allegedly done to him, she had any reason to suspect anything "was going on" between her grandson and defendant. She replied: "Yes, I did. About six months prior to that [my grandson] was telling me that [defendant] had taken him to the store, and they were on their way home from the store and that Johnny had him rub him."

At that point, defendant objected and the jury was sent to the jury room. Defendant objected on the basis that he had not been served with notice of similar transactions concerning that alleged victim and moved for a mistrial on the basis that his character had been placed in issue. The trial court denied the defendant's motion for a mistrial, called back the jury and instructed the jury not to consider the witness' last statement.

We hold that this issue is controlled by our decision in Garrett v. State, 188 Ga.App. 176(1, 2), 372 S.E.2d 506 (1988). In this case, as in Garrett, "the date alleged in the indictment was not an essential averment, [and] evidence of similar acts occurring within the statute of limitation was evidence of the crime charged and did not fall within the ambit of the rule relating to notice of the State's intention to present evidence of similar transactions." Id. at 177(2), 372 S.E.2d 506. The indictment charging defendant with a count of child molestation of this particular victim stated that on or about October 25, 1990, defendant "[forced D.R.] to perform masturbation on him, said child being under 14 years of age, with intent to arouse and satisfy the sexual desires of said accused." The similar offense about which defendant complains allegedly occurred in the same manner as the offense giving rise to defendant's indictment for child molestation of this same child at a later time. The cases relied upon by defendant are inapplicable to this case because in those cases this court refused to allow testimony of an allegedly similar offense against the same victim when the allegedly similar offense was committed in a different manner than the offense giving rise to the indictment. See Dempsey v. State, 197 Ga.App. 674(1), 399 S.E.2d 239 (1990); Story v. State, 196 Ga.App. 590, 591, 396 S.E.2d 547 (1990). Thus, the trial court did not err in denying defendant's motion for mistrial.

(b) In this same enumeration of error, defendant argues the trial court erred by allowing the State to present evidence of a similar transaction of which the State had given the defendant notice, because a hearing was not held pursuant to Uniform Superior Court Rule 31.3(B) before that evidence was admitted. Uniform Superior Court Rule 31.3(B) and our Supreme Court's decision in Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991) mandate that a hearing be held before evidence of a similar transaction is admissible at trial. At that hearing the State must make three affirmative showings: (1) it seeks to introduce evidence of an independent offense or act for an appropriate purpose; (2) there is sufficient evidence to establish the accused committed the independent offense or act; and (3) there is a sufficient similarity between the independent offense or act and the crime charged so that the proof of the former tends to prove the latter. Williams, 261 Ga. at 642, 409 S.E.2d 649. "After the 31.3(B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act." Id.

This court has held, however, in cases in which a Rule 31.3(B) hearing was held, that the 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 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. If the argument[s] that appellant advances in his brief had been raised in the form of an objection in the trial court, it is possible that ... Williams might warrant a reversal of appellant's conviction. In the absence of such an objection, however, any discussion of ... Williams in the instant case is inappropriate."). See also McGaha v. State, 204 Ga.App. 248, 418 S.E.2d 802 (1992); Shields v. State, 202 Ga.App. 659(2), 415 S.E.2d 478 (1992).

We must now consider whether the same rule applies if the error alleged on appeal is that no hearing was held prior to the introduction of the similar transaction evidence, and defendant fails to object to the introduction of the evidence on that basis. Rule 31.3 contemplates that the State will bring to the trial court's attention its intent to present evidence of a similar transaction, the trial court will conduct the requisite hearing at an appropriate time, and the State will have "[t]he burden of proving that the evidence of similar transactions or occurrences should be...