Todd v. State

• Decision Date: 05 December 1988
• Docket Number: No. 76969,76969
• Citation: 376 S.E.2d 917,189 Ga.App. 538
• Parties: TODD v. The STATE.
• Court: Georgia Court of Appeals

Page 917

376 S.E.2d 917

189 Ga.App. 538

TODD v. The STATE.

No. 76969.

Court of Appeals of Georgia.

Dec. 5, 1988.

Crecelius & Crecelius, B.W. Crecelius, Sr., Stone Mountain, for appellant.

Lindsay A. Tise, Jr., Dist. Atty. and John H. Bailey, Jr., Asst. Dist. Atty., for appellee.

POPE, Judge.

Appellant was convicted of burglary and now appeals asserting fifteen enumerations of error.

1. Appellant contends that the trial court erred in allowing the State to present, through the testimony of several witnesses, evidence of similar transactions in which appellant was allegedly involved. The basis for appellant's position is the fact that the State did not comply fully with Uniform Superior Court Rule 31.3, 253 Ga. 854 (1985), in notifying appellant of its intent to present the evidence in question. The rule requires that the notice be in writing, served upon defendant's counsel, and state the "transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice." Id., Section (B). The notice that the State provided merely stated that the State "intends to call witnesses ... to give testimony concerning incidents involving the defendant ... on the dates of January 1, 1986, June 20, 1986, June 25, 1986, June 30, 1986, July 5, 1986, July 8, 1986, August 11, 1986, and August 18, 1986...." No copies of accusations, indictments, guilty pleas, or verdicts were attached. At the hearing on the issue, the State argued that its notice referenced by implication the indictments against appellant in Madison County, and since appellant was represented by the same counsel in Madison County and they previously had received copies of the indictments, they should have known that those were the transactions the State intended to introduce in the case being tried in Oglethorpe County.

The record also shows that the State gave notice to appellant's counsel of its intent to use similar transactions at a hearing at least six months before trial. The notice provided by the State was served on appellant's counsel 54 days before trial. In argument to the trial court, appellant's counsel cited only the technical violation of the rule, but never indicated any difficulty or harm to his client's defense because of the State's omission. In Sweatman v. State, 181 Ga.App. 474(1), 352 S.E.2d 796 (1987), we stated that the purpose of the rule was to provide a criminal defendant adequate notice of the State's intent to use similar transactions to enable the defendant to resolve questions regarding admissibility of such evidence before trial. Moreover, we stated that a violation of the rule must result in prejudice to the defendant. The rule clearly presupposes that the State's failure to comply with the rule will result in harm to the defendant by failing to give him adequate notice of the similar transactions sought to be used by the State. Consequently, non-compliance with the rule puts the burden on the State to prove that its violation of the rule's requirements did not harm the defendant. However, the State can avoid the consequences of its failure to adhere to the rule by showing that the defendant had the requisite notice in spite of the State's failure.

The record here shows that the State carried its burden in this regard. Appellant's counsel represented appellant on the indictments of the similar transactions sought to be used by the State and counsel had copies of the indictments. Appellant had the requisite notice to satisfy the rule's intent. In these circumstances, the trial court's ruling is not harmful error. See Payne v. State, 184 Ga.App. 366(2), 361 S.E.2d 666 (1987).

2. At the close of the State's evidence, appellant moved for a directed verdict of acquittal, arguing that there was no evidence linking him to the burglary of the victim Mr. Nation's home, because he was not involved in entering the residence, was not present when the residence was entered, and did not have any knowledge that that particular house was to be broken into. The trial court denied the motion, and appellant cites the denial as error.

The State tried appellant for burglary based on his alleged participation as a party to the crime, under OGCA § 16-2-20(b)(4). That section states that a person may be charged with and convicted of commission of a crime if he "[i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime." The State's theory of the case is that appellant aided and encouraged the burglary by stating to Kenneth Potts, the actual burglar, what stolen items he would buy (guns and VCRs) because he could readily sell these items. Appellant created a market, thus encouraging Potts to commit the offense of burglary.

The evidence at trial supported this theory. Potts testified that appellant had purchased stolen items from him in the past. According to Potts, "[Appellant would] ask about where would they come from, whereabouts, and we'll tell him." The evidence clearly established that appellant knew the items Potts had been selling to him were stolen. Potts testified that "[Appellant] said that if we ever had any more guns, that he would buy them, so we--every gun we'd get, we'd take to him." Thus, the evidence clearly established that appellant knew Potts would steal the guns he supplied to appellant, and would not purchase them at yard sales, as the dissent suggests.

Such evidence is sufficient to convict one as a party to a crime. In Grant v. State, 47 Ga.App. 234(1), 170 S.E. 394 (1933), this court held that one who counsels and encourages another to commit larceny by promising to buy the fruits of the crime is guilty as a principal even though one does not act as an actual perpetrator of the crime. That the appellant in the case at bar did not specifically select the target of the crime, as was the case in Grant, is irrelevant. Appellant clearly counseled and encouraged others to commit burglary to obtain readily marketable goods, specifically guns and VCRs.

Appellant asked Potts where the guns came from. Potts told him that he had "broke into a house in Oglethorpe." Another man, Wayne Kalb, who negotiated the sale of the stolen items to appellant, corroborated Potts' testimony. Potts said that appellant needed to know where the items were taken so he could resell them elsewhere. Appellant purchased the guns knowing they were stolen and after inquiring about the area from which the guns were stolen. Conduct and companionship before and after the crime are circumstances from which the factfinder may infer criminal intent. Jones v. State, 242 Ga. 893(1), 252 S.E.2d 394 (1979). In the case at bar, the evidence authorized the jury to conclude appellant intentionally encouraged Potts to commit the burglary. Thus, appellant's reliance on Kilgore v. State, 251 Ga. 291(1a), 305 S.E.2d 82 (1983) is misplaced because in that case there was no evidence of encouragement to commit the crime. The trial court in the case at bar properly denied the motion for directed verdict.

3. Appellant alleges that the trial court erred in denying his motion for mistrial when it allowed a witness who inadvertently violated the sequestration rule to testify. The trial court gave curative instructions in accord with Jordan v. State, 247 Ga. 328(10), 276 S.E.2d 224 (1981). We find no error. See also Bradford v. State, 182 Ga.App. 337(6), 355 S.E.2d 735 (1987).

4. Appellant's remaining enumerations deal with the charge to the jury, generally with the court's charge on conspiracy. We find no error. Battle v. State, 231 Ga. 501, 202 S.E.2d 449 (1973); Anderson v. State, 153 Ga.App. 401(3), 265 S.E.2d 299 (1980); see also Ross v. State, 255 Ga. 1(5b), 334 S.E.2d 300 (1985).

JUDGMENT AFFIRMED.

BIRDSONG, C.J., DEEN, McMURRAY and BANKE, P.JJ., and CARLEY and SOGNIER, JJ., concur.

BEASLEY, J., concurs in part and dissents in part.

BENHAM, J., dissents.

BEASLEY, Judge, concurring in part and dissenting in part.

1. I concur in Division 1 of the majority opinion because of precedent, but I do so more narrowly. The majority's approach puts the burden on defendant to prove harm instead of on the State to prove compliance or suffer adverse consequences. Harm should be presumed, at least unless it is shown that defendant had actual prior notice, which is the purpose of the rule. The rule by its nature implies a presumption of harm from lack of notice.

It provides for clear and positive identification to be given, by the State, before the hearing on the issue, so that defendant can adequately prepare to contest admissibility. See McBride v. State, 185 Ga.App. 271, 273(2), 363 S.E.2d 802 (1987). The voids in the State's notice do not reach substantial compliance. The answers to the questions "what?", "where?" and "who?" were not answered; the answer only to "when?" was stated. As pointed out to the trial court, it leaves defendant guessing or at least uncertain.

Considering that the introduction of similar transactions is a guarded exception to the general rule against character evidence (OCGA §§ 24-2-2 and 24-9-20(b)), and that Rule 31.3 carries forward the law's reticence by casting the burden of proving admissibility on the State, compliance should be enforced.

In this case, there was notice although not in accordance with the procedural rule. Defendant argued to the trial court that he was not apprised by the document of the facts called for in the rule, but he did not contest the statements that he knew them from a prior hearing and the supplementary sources. Had the fact been that he did not have the information required by USCR 31.3(B), I would join in the majority's conclusion without requiring a further showing of harm. That is, a defendant should not have to prove that if he had the facts, he would have used them in some beneficial way. To win a...