Plemons v. State

270 S.E.2d 836, 155 Ga. App. 447, 1980 Ga. App. LEXIS 2620
Court of Appeals of Georgia·Decided July 9, 1980·No. 59473, 59474·Published·Cited by 32 cases

Opinions

Shulman, Judge.

Defendant Larry Plemons was tried and found guilty of three counts of violating the Georgia Controlled Substances Act (Code Ann. Ch. 79A-8; Ga. L. 1974, p. 221): two counts of selling 3,4 Methylenedioxyamphetamine, and one count of selling marijuana. Co-defendant Sherry Plemons was charged with and found guilty of two violations of the Act: selling 3,4 Methylenedixoyamphetamine, and selling marijuana. We affirm the convictions on all counts.

1. The trial court instructed the jury as follows: “I instruct you that it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell or possess with intent to distribute the Methylenedioxyamphetamine, a controlled substance. It is also called MDA. You heard a lot about MDA. MDA is referred to in these cases as 3,4 Methylenedioxyamphetamine, and they are one and the same.”

Both defendants were charged with the illegal sale of 3,4 Methylenedioxyamphetamine, a Schedule I drug under Code Ann. § 79A-806. They contend that since they raised the issue at trial that the substance they had allegedly sold was an amphetamine (a Schedule II drug listed under Code Ann. § 79A-807), rather than 3,4 Methylenedioxyamphetamine as charged in the presentments, the trial court’s instructions to the effect that 3,4 Methylenedioxyamphetamine and Methylenedioxyamphetamine or MDA were identical constituted the expression of the court’s opinion that the substance allegedly sold by defendants was necessarily the Schedule I drug, 3,4 Methylenedioxyamphetamine. We disagree with [448]*448appellants’ assertions that the court’s instructions implied that the substance defendants were accused of selling was necessarily 3,4 Methylenedioxyamphetamine, as alleged in the presentments, or that defendants could be found guilty as charged in the presentments even if the jury determined that the substance that defendants were accused of selling was not 3,4 Methylenedioxyamphetamine, but an amphetamine.

Contrary to appellants’ contentions, the trial court did not express its opinion as to whether or not the chemical substance defendants were accused of selling was 3,4 Methylenedioxyamphetamine, but only that 3,4 Methylenedioxyamphetamine and MDA or Methylenedioxyamphetamine were the same chemical substance. Although this may have been erroneous (in view of expert testimony that the numerical preface “3,4” representing the positioning of oxygen molecules in the substance, differentiated the chemical from what would otherwise be considered an amphetamine), we fail to find that such instructions constituted the expression of an opinion as to the chemical composition of the drug.

In its instructions the trial court merely sought to inform the jury that 3,4 Methylenedioxyamphetamine, Methylenedioxyamphetamine and MDA were used interchangedly at trial in reference to the Schedule I drug defendants were accused of illegally selling.

Despite the fact that the trial court may have inadvertently or otherwise erroneously left out the numerals “3,4” we refuse to find harmful error. Indeed, the record shows that during the course of the trial, counsel for the defense, in reference to the substance 3,4 Methylenedioxyamphetamine, labeled it, on occasion, Methylenedioxyamphetamine or MDA, without the prefaced numerals.

Since we find that the trial court’s instructions did not constitute the expression of an opinion, this enumeration of error does not present grounds for reversal.

2. A. We disagree with appellants’ contentions that the trial court erred in denying the co-defendants’ motion to sever their trials.

“[T]wo or more defendants charged with different offenses may be tried jointly where the offenses were part of a common scheme or plan.” Padgett v. State, 239 Ga. 556, 559 (238 SE2d 92).

Co-defendants Larry and Sherry Plemons, husband and wife, were charged with selling the same substances (3,4 Methylenedioxyamphetamine and marijuana) to the same individuals from the same location over a period of six weeks (the last charged offense against Larry Plemons occurring approximately two weeks from the date of the offenses for which Sherry Plemons was charged). Under these facts, we refuse to find that the trial court abused its discretion in finding a common plan or scheme and thus denying [449]*449defendants’ motions for separate trials. See, e.g., Padgett, supra.

B. Moreover, the fact that evidence presented at trial may have implicated defendants in the commission of offenses for which they were not currently on trial does not require a different result.

“On trial of a particular criminal offense evidence which shows that [a] defendant has committed another independent crime may not be admitted unless the two crimes are logically connected in point of time and so similar that proof of one tends to prove the other, i.e., where the extraneous crime tends to prove motive or intent or a course of conduct. [Cits.] ” Hopkins v. State, 144 Ga. App. 663 (1) (242 SE2d 325). See also Hampton v. State, 238 Ga. 608, 609 (234 SE2d 521); French v. State, 237 Ga. 620, 624 (229 SE2d 410); and Wilson v. State, 145 Ga. App. 33 (5b) (243 SE2d 304), holding that evidence of subsequent crimes may also be admissible to show motive or course of conduct.

C. Even assuming the admissibility of evidence of independent crimes, appellants argue that the trial court’s failure to charge on the limited purpose for which such evidence was admitted constitutes reversible error. Absent a request, the court’s failure to charge on limited purpose does not constitute error. Kimbrell v. State, 57 Ga. App. 294 (4) (195 SE 460); Suits v. State, 150 Ga. App. 285 (3) (257 SE2d 306).

3. Defendants enumerate as error the rulings of the trial court denying their motions for mistrial, following a state witness’ allegedly prejudicial references to the “undercover drug world” and “biker-type people.” Since the court gave curative instructions immediately following the alleged improper testimony, after which defendants failed to either renew their motions or seek further rulings from the court, “ ‘the rulings thus complained of present no question for decision.’ [Cits.]” Burgess v. State, 149 Ga. App. 630 (1) (255 SE2d 100).

If defendants were dissatisfied with the curative instructions, it was incumbent upon them to request further instructions or renew their motions for mistrial. Id.

4. Defendants assert error in the trial court’s refusal to allow a witness for the state to testify as to a rumor he heard from an unknown source that the alleged confidential informant who had aided the Georgia Bureau of Investigation (GBI) in the arrest of defendants had been given money by the GBI to leave the state for his own protection. The court excluded such testimony on the grounds that it was inadmissible hearsay. We agree.

The defense sought to elicit the witness’ testimony in regard to the rumor, not to impeach the witness (as the witness had stated on cross examination that from his own personal knowledge he was not [450]*450aware of any money being paid to the informant by the GBI), but to show the truth of the matter asserted therein (that is, that the confidential informant had indeed been paid by the GBI to leave the state).

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Plemons v. State, 270 S.E.2d 836, 155 Ga. App. 447, 1980 Ga. App. LEXIS 2620 (Ga. Ct. App. 1980).

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