Although the conduct of a defendant in other transactions is generally irrelevant and inadmissible, evidence that a defendant previously committed a similar crime can be used against a defendant during the trial of his case. Walker v State, 310 Ga. App. 223 (2011); See Appendix A, HB 24, O.C.G.A. § 24- 4-404(b). For example, if a defendant is charged with armed robbery, the State can ask the judge to let the jury hear about a prior armed robbery. The prior event is called a similar transaction.
Before the State can introduce similar transaction evidence, the judge must conduct a hearing under Uniform Superior Court Rule 31.3 (B), and the State must make three affirmative showings as to each prior act. Hickson v. State, 308 Ga. App. 50 (2011). The State must show that: (1) it seeks to introduce the evidence for an appropriate purpose, such as showing a defendant's identity, intent, course of conduct, and bent of mind; (2) there is sufficient evidence to establish that the defendant committed the independent offense, and (3) there is sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (1991); Evans v. State, 288 Ga. 571 (2011); Gardner v. State, 273 Ga. 809 (2001); See Appendix A, HB 24, O.C.G.A. § 24-4-404(b)
(eliminating bent of mind as an appropriate purpose).
The State can proceed by proffer at the hearing and does not need to present witnesses. Hinton v. State, 290 Ga. App. 479 (2008).
There is no requirement that the similar transaction be identical to the crime charged; "the proper focus is on the similarity, not the differences, between the separate crimes and the crime in question." Waters v. State, 303 Ga. App. 187 (2010). This rule is most liberally extended in cases involving sexual offenses and domestic violence. McNaughton v. State, 290 Ga. 894 (2012); Payne v.
State, 285 Ga. 137 (2009); Henderson v. State, 303 Ga. App. 531 (2010). See Appendix A, HB 24, O.C.G.A. §§ 24-4-413-414.
There is no requirement that the earlier act have resulted in a formal criminal charge, prosecution, or conviction. Hunt v. The State, 288 Ga. 794 (2011);
Brown v. State, 201 Ga. App. 473 (1991). However, evidence of a similar transaction may be excluded due to the rule of collateral estoppel where the defendant has been tried and acquitted of the alleged similar transaction. Banks v. State, 185 Ga. App. 851 (1988); Moore v. State, 254 Ga. 674 (1985). The judge must decide what facts were in issue and necessarily resolved in the defendant's favor at the first trial. Salcedo v. State, 258 Ga. 870 (1989). Specifically, "it must be determined whether an issue that was in dispute in the previous trial -- and resolved in the defendant's favor -- is what the state is now trying to establish in this trial, notwithstanding the previous acquittal." For example, in a rape case if consent was the issue in the first trial and the State seeks to use the similar transaction to show identity, then the similar transaction may be admissible despite the acquittal in the former case. Bell v. State, 311 Ga. App. 289 (2011).
The similar transaction must be an act. A defendant's statements are not "independent offenses or acts" unless those statements in and of themselves constitute a crime. Boynton v. State, 197 Ga. App. 149 (1990); Newsome v. State, 288 Ga. 647 (2011).
With regard to the lapse of time, Georgia courts have authorized the admission of similar transaction evidence that is more than 20 years old in sexual abuse cases. The lapse of time goes to the weight and credibility of evidence, not tits admissibility at trial. McNaughton v. State, 290 Ga. 894 (2012); Hinton v. State, 280 Ga. 811 (2006). When the lapse of time is great the judge must consider whether the evidence is so remote in time that any value it might have is outweighed by its prejudice to the defendant.
A similar transaction committed by a defendant as a juvenile can be admissible. Jackson v. State, 291 Ga. 54 (2012).
Certified copies of a defendant's conviction are admissible when they are helpful in proving the identity of the defendant as the perpetrator of the similar transaction and are not the only evidence of the prior crime. Perry v. State, 314 Ga. App. 575 (2012).
The decision to admit similar transaction evidence is within the judge's discretion and will not be disturbed on appeal absent an abuse of that discretion. Flowers v. State, 269 Ga. App. 443 (2004); Long v. State, 307 Ga. App. 669 (2011). When reviewing the judge's factual findings regarding whether the State satisfied the three prong test, the appeals courts apply a clearly erroneous standard. Once the judge has a hearing and decides to admit similar transaction evidence against a defendant, the defendant does not have to raise the same objection at the time the evidence is presented at trial. Whitehead v. State, 287 Ga. 242 (2010). However, only the objection that was raised pretrial is preserved. Butler v. State, 290 Ga. 425 (2012).