Roberts v. State ( 1999 )

Blackburn, Presiding Judge.

John W. Roberts appeals his conviction, following a jury trial, for possession of cocaine. Roberts contends that the trial court erred by allowing the admission of certain similar transaction evidence because: (1) the State failed to give him proper notice of the purpose for which the evidence would be used; (2) the trial court failed to make a determination of the purpose for which the evidence would be used; and (3) the evidence did not tend to prove the offense for which he was being tried. For the reasons set forth below, we affirm Roberts’ conviction.

Construed in the light most favorable to the verdict, the record shows that Special Agent Branham, who was a passenger in a car with two other police officers, witnessed Roberts standing with two other men outside a home in an area known for drug activity. As the police officers drove slowly down the street, Roberts began to approach their car, but after apparently recognizing its occupants, he stopped his approach and dropped an object on the ground. The officers then stopped the car, and Branham walked directly to the object, which turned out to be a baggie containing less than $10 worth of powdered cocaine. Roberts was then arrested and charged with possession of cocaine.

During the trial which ensued, the trial court admitted similar transaction evidence of a prior guilty plea of Roberts for the sale of cocaine. Special Agent Fetter testified that, on April 28, 1995, he was conducting undercover narcotics buys on the street in Valdosta. At that time, Roberts flagged Fetter’s car down. When Fetter pulled over, Roberts offered to sell him approximately $20 worth of cocaine in his possession. It is the admission of this evidence that Roberts complains about in three enumerations of error.

1. Roberts first contends that the trial court erred by admitting the similar transaction evidence because the State failed to give him proper notice of the purpose for which the evidence would be used. Uniform Superior Court Rule 31.3, however, does not require the State to give the defendant such notice, and, indeed, we have held that the State need not set out the lawful purposes for which it intends to use similar transaction evidence in its notice of intent. For example, in Hightower v. State, 210 Ga. App. 386, 387 (2) (436 SE2d 28) (1993), we noted:

The State’s notice of intent does not state any limits on the lawful purposes for which [the similar transaction] evidence may be introduced. Accordingly, appellant was on notice that the scope of the hearing on the admissibility of similar transaction! ] evidence could include any proper purpose.

Likewise, in this case, Roberts was on notice that the scope of his similar transaction hearing could include any proper purpose, and this enumeration of error lacks merit.

2. Roberts next contends that the trial court erred by admitting the similar transaction evidence because it failed to make a determination on the record of the purpose for which the evidence was being introduced. Roberts, however, failed to make any objection on this basis during the proceedings below, and “matters not objected to at trial cannot be raised for the first time on appeal.” Scott v. State, 243 Ga. 233, 234-235 (2) (253 SE2d 698) (1979). Therefore, Roberts has waived bis right to argue this matter before this Court, and we do not consider his second enumeration of error.

3. Finally, Roberts contends that the trial court erred by admitting the similar transaction evidence because it did not tend to prove the offense for which he was being tried. We cannot agree.

This Court should not disturb the findings of the trial court on the issue of similarity or connection of similar transaction evidence unless they are clearly erroneous. Mitchell v. State, 206 Ga. App. 672, 673 (2) (426 SE2d 171) (1992).

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. 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.

(Citations and punctuation omitted; emphasis supplied.) Hatcher v. State, 224 Ga. App. 747, 752 (3) (482 SE2d 443) (1997).

Here, the defendant is on trial for possessing $10 worth of cocaine while standing near the roadway in a high crime area of Lowndes County. Prior to being arrested, Roberts began to approach the police car with the cocaine powder in his hand, although he dropped the contraband after he apparently recognized the occupants of the vehicle as patrolling officers. The State was allowed to introduce similar transaction evidence of a prior direct hand-to-hand sale of $20 worth of crack cocaine made from a street curb, where, as he did in this case, Roberts approached a car with the contraband in his possession. Although there are differences between these two offenses, it is the similarities and relevance on which we must focus. The same drug was possessed by the defendant in the same city, and, in both cases, the defendant approached a car with the contraband in his possession. As such, the two transactions are similar enough to warrant the admission of the former guilty plea into evidence.

The fact that the two crimes occurred on different streets does not change this result. Geographical location should not be considered as being ultimately decisive in drug sale cases. Moreover, the city in which the crimes took place, Valdosta, is not a sprawling metropolis, but a relatively small city, discounting the importance of any small amount of geographical distance between the sales. See Evans v. State, 235 Ga. App. 577 (510 SE2d 313) (1998). Furthermore, the fact that the prior crime included a sale of cocaine does not render it inadmissible, for

[i]t 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.

(Punctuation omitted.) Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992). Thus, we cannot say that the trial court abused its discretion by finding the prior guilty plea for the sale of cocaine sufficiently similar to Roberts’ current charge and conviction for possession.

Moreover, contrary to the opinion of the dissent, the similar transaction evidence in this case does have substantial relevance to the issues presented to the jury.

[I]t is clear in this case that based upon defendant’s denial of the commission of the subject crime [possession of cocaine], a past conviction involving the [possession and sale of cocaine] would be most helpful to the jury, and therefore the State’s need would have outweighed the prejudice to the defendant.

(Punctuation omitted.) Hatcher, supra at 751-752 (3).

Therefore, because the similar transaction evidence in this case was sufficiently similar to Roberts’ current crime and had substantial relevance to the issues being tried, the trial court’s finding that the similar transaction evidence should be admitted cannot be said to be clearly erroneous. As such, Roberts’ conviction in this case should be affirmed.

Judgment affirmed.

Johnson, C. J, McMurray, P. J, Andrews, P. J., and Ellington, J., concur. Ruffin, J., concurs specially. Barnes, J., dissents.