Story v. State , 196 Ga. App. 590 ( 1990 )

Carley, Chief Judge.

After a jury trial, appellant was found guilty of molesting his young daughter. Appellant brings this appeal from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

The sole enumeration is that the trial court erroneously denied appellant’s motion for mistrial when the State introduced evidence of a similar offense without having given the notice required by Uniform Superior Court Rules 31.1 and 31.3. The State relies upon Garrett v. State, 188 Ga. App. 176 (1, 2) (372 SE2d 506) (1988) for the proposition that no notice was required. However, Garrett is clearly distinguishable from the instant case. The similar offense admitted here had taken place almost a year after the occurrence of the offense for which appellant was being tried. Thus, evidence of the similar subsequent offense would have been admissible upon the State’s compliance with Rule 31.3 (B), but would not come within the res gestae exception that is provided by Rule 31.3 (E). Compare Garrett v. State, supra at 176 (1). Even though the date alleged in the indictment was not an essential averment, the similar offense admitted here, although within the statute of limitations, was not so similar as to be admissible as direct evidence of the crime charged. Compare Garrett v. State, supra at 177 (2). Compare also Murphy v. State, 195 Ga. App. 878 (395 SE2d 76) (1990), wherein the evidence of similar offenses was not identified on appeal and this court correctly held that Garrett v. State, supra, would be controlling insofar as that unidentified evidence may have concerned offenses which were so similar as to be admissible as direct evidence of the crime charged in the indictment. Unlike Garrett, the indictment alleged that appellant had molested the victim in a specific manner, whereas the subsequent similar offense involved an act of alleged molestation committed against the victim in a totally different manner.

The State’s assertion that the similar offense was admissible to prove appellant’s bent of mind and intent is irrelevant. The error in admitting the evidence was procedural, not substantive. “The purpose is irrelevant, for the State must give notice regardless of its purpose in introducing the evidence. USCR 31.3 covers the evidence, at least if it is offered in the case in chief, as here. The question of purpose enters in only when objection is interposed regarding admissibility under OCGA § 24-9-20. [Cit.] Since no notice was ever given, violation of the Rule rendered the evidence inadmissible.” Baker v. State, 193 Ga. App. 498, 500 (2) (388 SE2d 402) (1989).

“[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.” Todd v. State, 189 Ga. App. 538, 539 (1) (376 SE2d 917) (1988). The mere fact that appellant may have been served with the State’s file, with no indication whatsoever that the State intended to use the similar offense as evidence in appellant’s trial or that appellant knew that the State so intended, would not suffice to provide the requisite notice. The rule contemplates that a defendant be apprised of the State’s intent to use a similar offense as evidence and not that he merely be informed of the State’s possession of evidence of a similar offense.

“The sole issue in this case was credibility of the witnesses, since the alleged victim in this case testified appellant molested [her, other witnesses testified that she had told them the same thing,] and appellant testified that he did not molest the victim. Under such circumstances we cannot say that the [error was] harmless, and thus, the trial court erred by denying appellant’s motion for a mistrial. [Cit.]” Thomas v. State, 178 Ga. App. 674, 675 (344 SE2d 496) (1986).

Judgment reversed.

Banke, P. J., Birdsong, Sognier and Cooper, JJ., concur. Pope and Beasley, JJ., concur specially. Deen, P. J., and McMurray, P. J., dissent.