Stephan v. State, A92A0651

• Decision Date: 15 July 1992
• Docket Number: No. A92A0651,A92A0651
• Citation: 205 Ga.App. 241,422 S.E.2d 25
• Parties: STEPHAN v. The STATE.
• Court: Georgia Court of Appeals

Page 25

422 S.E.2d 25

205 Ga.App. 241

STEPHAN v. The STATE.

No. A92A0651.

Court of Appeals of Georgia.

July 15, 1992.

Reconsideration Denied July 30, 1992.

H. Clay Collins, Fairburn, for appellant.

Lewis R. Slaton, Dist. Atty., Rebecca A. Keel, Leonora Grant, Penny A. Penn, Asst. Dist. Attys., for appellee.

COOPER, Judge.

Appellant was convicted by a jury of aggravated assault. She appeals from the judgment and sentence entered on the conviction and the denial of her motion for new trial.

The evidence viewed in a light most favorable to the jury verdict reveals that the victim attended a party given by a couple at a warehouse near downtown Atlanta and that as the victim stood talking to friends, a woman, later identified as appellant, sat on a bench directly behind her. The victim felt a pain around her legs and reached back to discover that she had been cut across the back of her legs. The victim did not see who cut her, but after she screamed for help, the victim looked behind her and saw appellant sitting on the bench smiling at her. Appellant immediately left the party with a very worried look on her face, and on her way out, she said to one of the hosts of the party: "You're going to hear about someone getting cut, and I had nothing to do with it." The host testified that he believed that appellant was lying because appellant was extremely nervous and in a hurry to leave. Appellant was the only person behind the victim immediately before and after the victim screamed. The victim was taken to the hospital where she received a total of 31 stitches from razor blade cuts. Appellant was subsequently arrested and charged with aggravated assault. At trial, the victim positively identified appellant as the woman she saw behind her smiling.

1. Appellant complains that the trial court erred in allowing the State to introduce testimony concerning her alleged participation in satanic worship in violation of an order on appellant's motion in limine prohibiting any reference to witchcraft, black magic, devil worship, satanism, or anything that could be so construed, in connection with the case. During a hearing on the motion in limine, the State disavowed any intent to pursue such a line of questioning unless and until the issue of the appellant's character was opened by the defense, and under these conditions the motion was granted. However, the State's first witness testified that appellant assaulted her because appellant was angry that the witness persuaded a former follower of appellant's devil worship cult into leaving the cult. In response to appellant's objections and motion for mistrial, the court ruled that the witchcraft evidence was going to have to come in as a collateral matter, as she had determined that it was material to the case, and even though it might incidentally put appellant's character in issue, it was too material to an understanding of what had occurred not to allow it. Moreover, the most detailed testimony in regard to appellant's religious beliefs was elicited by defense counsel upon examination of the appellant herself. The State's witness only briefly referred to appellant's professed interest in the occult and her pride in being a princess or priestess of her cult.

Where the trial court rules on the admissibility of evidence in a pretrial motion in limine, "the court's determination of admissibility is similar 'to a preliminary ruling on evidence at a pretrial conference' and it ' "controls the subsequent course of action, unless modified at trial to prevent manifest injustice." ' [Cit.]" State v. Johnston, 249 Ga. 413, 415(3), 291 S.E.2d 543 (1982). Furthermore, " '(t)he state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence ... even though it may have incidentally placed [appellant's] character in evidence.' [Cits.]" Houston v. State, 187 Ga.App. 335, 340(5), 370 S.E.2d 178 (1988). The court had the discretion to modify its pretrial ruling when it became apparent the evidence was relevant and material to appellant's motivation for assaulting the witness. " 'Material evidence is not rendered inadmissible merely because it incidentally places a defendant's character in issue. (Cit.)' [Cit.]" Rhodes v. State, 200 Ga.App. 193, 197(5), 407 S.E.2d 442 (1991).

2. Appellant also contends that the trial court committed error by allowing the State to introduce a similar act. Appellant first argues that the notice was untimely under Uniform Superior Court Rule ("USCR") 31.1 and second, that a pretrial hearing was not held in compliance with Williams v. State, 261 Ga. 640, 641(2), 409 S.E.2d 649 (1991).

Williams holds that "[a]s a threshold requirement for admissibility [of a similar act], the State must affirmatively show that it seeks to introduce the independent offense or act for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility rather than to raise an improper inference as to the accused's character. It must be relevant to an issue in the case. After a USCR 31.3(B) hearing and before any introduction of the independent transaction evidence, the trial court must make the determination that the State has satisfactorily made each of the three showings as to each independent act or offense, i.e., permissible purpose and relevancy, perpetrator identity, and similarity of act. [Cit.]" Moore v. State, 202 Ga.App. 476, 481(3), 414 S.E.2d 705 (1992). The record reflects that on the morning the trial began, the State served defense counsel a notice of intent to present similar transaction evidence. The prosecutor stated in her place, at the request of the trial judge, that the similar act occurred while Ingrid...