Tilley v. The State., 197 Ga. App. 97, 397 S.E.2d 506 (1990)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 35261

Parts: BEASLEY, Judge.

Linked as:

Summary

Judgment affirmed. Deen, P. J., and Pope, J., concur.

Summary

Judgment affirmed. Deen, P. J., and Pope, J., concur.

Text

Michael S. Weldon, for appellant.

Tilley was convicted of public indecency by exposing himself in a lewd manner in the parking lot of a shopping mall. He appeals following denial of his motion for a new trial, OCGA 16-6-8.

The evidence construed so as to uphold the verdict, Thomas v. State, 24-9-80.

The evidence was sufficient to enable a rational trier of fact to find Tilley guilty of public indecency beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Tilley contends the court erred in denying his motion in limine and in granting the State's motion to introduce evidence of a similar transaction, i.e., a prior act of public indecency for which he had been sentenced and subsequently discharged as a first offender. See OCGA 42-8-60; 42-8-62. He argues solely that OCGA 42-8-62 as interpreted in Queen v. State, 182 Ga. App. 794 (357 SE2d 150) (1987) barred introduction of the objected-to evidence.

Queen held that the trial court could not consider a prior first offender conviction and discharge in recidivist sentencing under OCGA 17-10-7 (a). This case differs. Following a hearing, the trial court ruled that the State would not be allowed to introduce evidence of the first offender plea and conviction but only evidence of the transaction itself.

In order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction. Green v. State, 178 Ga. App. 203, 204 (2) (342 SE2d 386) (1986). Here, the disposition was irrelevant.

Only the circumstances of the similar prior incident were explored; there was no evidence of adjudication. In fact, the jury questioned the court about the outcome of the prior incident and the court, with the agreement of counsel, instructed that the jury would hear no further evidence and should make its finding of guilt or innocence on the evidence presented.

The first offender disposition and discharge of the earlier accusation of public indecency did not preclude, under OCGA 42-8-62 (a), the admission of evidence of the underlying conduct itself for the purpose of showing a similar transaction engaged in by the same person.

We point out that the provisions of OCGA 42-8-62 and 42-8-65 in certain circumstances may not act as a complete bar even to introduction of the first offender conviction itself. Gilstrap v. State, 250 Ga. 814, 816-817 (2) (301 SE2d 277) (1983), e.g., held that a defendant could attempt to impeach a witness with the witness' first offender record even though the witness had fulfilled the terms of first offender probation.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.