Faison v. State

405 S.E.2d 277, 199 Ga. App. 447, 1991 Ga. App. LEXIS 534

• Court: Court of Appeals of Georgia
• Decided: March 14, 1991
• Docket: A90A2056
• Status: Published

Opinions

Carley, Judge.

Appellant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Appellant enumerates as error the admission into evidence, over objection, of a certified copy of his prior indictment for and his guilty plea to a charge of possession of cocaine. The State urged, and the trial court agreed, that the indictment and guilty plea was admissible evidence of appellant’s perpetration of a “similar crime.”

In Whitley v. State, 193 Ga. App. 192 (1) (387 SE2d 348) (1989), we held that evidence of the defendant’s possession of drugs on another occasion was admissible in his trial for the sale of drugs. However, Whitley does not stand for the proposition that evidence of a defendant’s possession of drugs on another occasion is indiscriminately admissible in his trial for the sale of drugs. The “other transaction” in Whitley was the defendant’s subsequent possession of marijuana which “was seized from motor vehicles and the curtilage of the house where the sale had previously taken place.” (Emphasis supplied.) Whitley v. State, supra at 192 (1). This evidence that, on another occasion, the defendant had in fact possessed marijuana on the same premises was held to be admissible to show that, contrary to his defensive contentions, he had not been misidentified as the one who possessed the marijuana on that occasion when it had been purchased on those very premises. In so holding, Whitley is but one in a line of cases which has long recognized that evidence of a defendant’s “other” possession of drugs may be admissible to show identity in his trial for the sale of drugs if a sufficient showing of a factual similarity or connection between the possession and the sale has otherwise been made. See Golden v. State, 184 Ga. App. 434 (361 SE2d 703) (1987) (holding that defendant’s possession of drugs at the same location admissible in his trial for sale of drugs); Brown v. State, 183 Ga. App. 476, 477 (1) (359 SE2d 233) (1987) (which was specifically cited in Whitley and holds that defendant’s conviction for possession of marijuana at same location admissible in his trial for sale of marijuana); Laws v. State, 153 Ga. App. 166, 167 (2) (264 SE2d 700) (1980) (holding that defendant’s possession of marijuana at same location admissible in his trial for sale of marijuana).

There is no basis for concluding that, in following established precedent, Whitley was incorrect in its holding that evidence of the defendant’s “other” possession of drugs under factually similar circumstances was admissible to prove his identity as the seller of drugs on the occasion at issue. That the intent elements of the crimes may differ is totally immaterial to the determination of the admissibility of the evidence. There is no requirement that, to come within the “other transaction” exception, the “other transaction” must be identical in every aspect. “The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence ‘may be admitted if it “ ‘is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . [Cit.]” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). “Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” (Emphasis supplied.) State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980). See also Burden v. State, 250 Ga. 313, 314 (2) (297 SE2d 242) (1982) (holding evidence of aggravated assault to be admissible in a murder case); Jones v. State, 158 Ga. App. 585 (2) (281 SE2d 329) (1981) (holding evidence of larceny or burglary to be admissible in a robbery by force case); Jackson v. State, 157 Ga. App. 604, 605 (4) (278 SE2d 5) (1981) (holding evidence of assault to be admissible in a rape case). It is the factual similarity of the defendant’s possession of drugs on different occasions which renders it admissible to show his identity, and the differing intent with which he may have possessed the drugs on those separate occasions is not a bar to its admissibility for that limited purpose.

Thus, it follows that Whitley should be followed in the instant case unless it is distinguishable. In this regard, the record shows that here, as in Whitley, the defense was mistaken identity. However, the record also shows that here, unlike in Whitley, there was no showing of any factual similarity whatsoever between appellant’s “other” act of possessing drugs and the alleged act of selling drugs which underlay his instant prosecution. Accordingly, as was implicitly recognized in Cross v. State, 196 Ga. App. 714 (397 SE2d 125) (1990), Whitley is distinguishable and inapplicable authority for the proposition that the evidence of appellant’s “other” possession of drugs was relevant and admissible in the instant case to prove his identity as the seller of the drugs. Here, as in Cross v. State, supra, the State made no showing of the requisite similarity and the trial court’s evidentiary ruling was, therefore, erroneous.

However, an erroneous admission of “other transaction” evidence may be harmless. The record in the instant case shows that appellant was positively identified by the officer who bought the drugs and by the officers who made the arrest only a few minutes thereafter. There was also testimony that, at the time of appellant’s arrest, he had in his possession the marked twenty-dollar bill used to purchase the drugs and the fact that the twenty-dollar bill was not itself tendered into evidence does not render this testimony any less inculpatory. McCoy v. State, 185 Ga. App. 221, 222 (3) (363 SE2d 628) (1987); Adams v. State, 142 Ga. App. 252, 253 (4) (235 SE2d 667) (1977). In opposition, appellant presented no affirmative evidence to support his misidentification defense. Instead, he purported to-develop that defense only through cross-examination of the officers. However, each of the officers reiterated his inculpatory testimony on re-direct examination. This record demonstrates overwhelming evidence of appellant’s guilt. Accordingly, the trial court’s erroneous evidentiary ruling does not mandate a reversal because it is highly probable that that error did not contribute to the guilty verdict. See Hatcher v. State, 251 Ga. 388, 389 (1) (306 SE2d 250) (1983).

2. Such of appellant’s remaining enumerations of error as are not otherwise implicitly resolved by our holding in Division 1 have been considered and found to be without merit.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, Cooper and Andrews, JJ., concur. Sognier, C. J., Banke, P. J., and Beasley, J., dissent.