Tenant v. State, A97A2281
| Decision Date | 23 October 1997 |
| Docket Number | No. A97A2281,A97A2281 |
| Citation | 492 S.E.2d 909,229 Ga.App. 20 |
| Parties | , 97 FCDR 3975 TENANT v. The STATE. |
| Court | Georgia Court of Appeals |
Garrett & Gilliard, Michael C. Garrett, Augusta, Melissa S. Padgett, for appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
Appellant John Ray Tenant was charged in a five-count indictment, 94-RCCR-71, with false imprisonment, aggravated sodomy, and rape against one female victim ("victim A") on July 10, 1993, and with kidnapping and criminal attempt to commit aggravated sodomy against another female victim ("victim B") on October 22, 1993. The two incidents were severed for trial, and the latter charges were tried first. The jury acquitted appellant of kidnapping but convicted him of criminal attempt to commit aggravated sodomy. This Court affirmed appellant's conviction. Tenant v. State, 218 Ga.App. 620, 462 S.E.2d 783 (1995). Tenant was tried on the remaining counts of the indictment, and a Richmond County jury found him guilty on all three counts: rape, aggravated sodomy, and false imprisonment. Tenant now appeals the results of this second jury trial. Held:
In his sole enumeration of error, appellant does not challenge the sufficiency of the state's similar transaction notice. Instead, appellant contends that "It is beyond dispute from the facts of this record that no notice was given in this case"; appellant alleges error pursuant to Uniform Superior Court Rule 31.3.
While appellant is correct that the record of his second trial under Indictment 94-RCCR-71 is slim, indeed, and contains no notice of the state's intent to introduce similar transactions, we take judicial notice of the prior proceedings before this Court pursuant to Indictment 94-RCCR-71 and affirm appellant's conviction. 1
Prior to the severance of the counts in Indictment 94-RCCR-71 and pursuant to USCR 31.1 and 31.3, the state filed notice of its intent to introduce similar transaction evidence. The sufficiency of this notice was never challenged and is not challenged herein. The state's intent was to introduce evidence of the offenses against the two victims named in the indictment as "similar transaction evidence," as well as substantive evidence; in this way the jury could consider evidence of the offenses against one victim in ascertaining appellant's guilt as to the offenses against the other victim. In addition, the state's intent was to introduce similar transaction evidence of appellant's prior 1977 rape and kidnapping convictions.
A USCR 31.3 hearing was held with regard to the similarity and admissibility of the noticed offenses. Following the hearing and based upon an unrelated matter, the presiding judge severed the counts of the indictment involving each of the victims. The presiding judge left the final ruling regarding the admissibility of the similar transaction evidence to the judge who would try the case. The state then proceeded to trial on the counts relating to victim B.
Immediately prior to this first trial, the similar transaction issue was raised before the trial court, and another hearing was held. The trial judge ruled that the state's similar transaction evidence was admissible. The correctness of this admissibility ruling has never been challenged and is not challenged herein. The offenses against victim A and the 1977 offenses were introduced against appellant during the trial of the crimes against victim B.
Following appellant's conviction in the first trial, the state proceeded to try the remaining counts involving victim A. In voir dire the prosecutor made reference to the similar transaction victims. The appellant objected, stating that he had "no notice" that the state intended to introduce evidence of similar transactions in the trial of the crimes against victim A. Appellant argued that the only notice provided was with regard to the introduction of similar transactions in the prior trial of offenses against victim B. This is the enumeration of error that is before us now.
(a) The similar transaction notice was filed under Indictment 94-RCCR-71 prior to the severance of the counts. It was sufficient as to all counts contained therein, and it notified appellant of the state's intent with regard to the introduction of similar transaction evidence under that indictment. After proper notice is filed pursuant to USCR 31.3 and a hearing is held thereon, the state is not required to re-file such notice simply because the counts of the indictment are subsequently severed, when the case is still proceeding pursuant to the same indictment under which the notice was filed in the first place.
Further, appellant was well aware of the state's intent with regard to the similar transaction evidence, as witnessed by his filing of a motion in limine immediately prior to the second trial with regard to such evidence. (Citations and punctuation omitted.) Tenant, supra at 621(2), 462 S.E.2d 783.
(b) Appellant alleges that the prosecutor failed to...
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