Charles Edward Bohannon was convicted of burglary and kidnapping with bodily harm. He appealed directly from the denial of a motion for new trial that had been filed more than 30 days after entry of the judgment of conviction. In
Bohannon v. State,
1. Appellant enumerates the general grоunds. On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence.
Watts v. State,
*577 At trial, evidence was adduced that appellant and the victim had been romantically involved for several years and that appellant had repeatedly abused and intimidated the victim physically and emotionally. The victim testified that on the night of February 23, 1989, appellant telephoned her and demanded that she drive him from her Douglas County home to Rome. She testified that he sounded drunk and became angry when she refused his insistent demands. She walked next door to alert her neighbor to her plight, but ran back into her house when she saw appellant arrive in a relative’s vehicle. Appellant kicked in her door and door frame, grabbed her by the neck (which was still very sensitive because of surgeries necessitated to promote healing of burns caused by appellant), threw her on the bed, and told her she was going to die. He then struck her in the face so hard that she “saw stars.” She testified that he kept screaming at her that she was going to die and that she had tо take him to Rome. He forced her outside her house and into the car, still holding her by the neck. He ordered her to drive to Rome and repeatedly stated he would kill her if she did not comply. When they reached his destination, he got out and warned her not to call pоlice. She drove back to her home and reported the event to sheriff’s deputies who had been called by neighbors when they discovered the damage to her door.
Given the substance of the prior telephone conversation and the fact that aрpellant kicked in the door, the jury was authorized to conclude that appellant entered the victim’s home against her will and that he intended to kidnap her at the time he entered. See OCGA § 16-7-1 (a); see also
Addis v. State,
Moreover, contrary to appellant’s contentions, the burglary charge did not merge with the kidnapping charge. To establish the crime of burglary, the State needed to prove only that appellant entered the victim’s home without authority and
with intent to
commit a felony (i.e., kidnapping), and did not have to prove actual commission of the felony.
Childs v. State,
2. In four enumerations of error appellant challenges the admission, over his objections, of evidence of appellant’s prior acts of violence against the victim and other women. The victim and other witnesses testified that appellant had often beaten the victim, leaving her with bruises, black eyes, and a broken nose. One year prior to the incident at issue, appellant doused the victim with rubbing alcohol and ignited it, resulting in burns over 35 percent of her body. Evidence also was adduced that appellant verbally abused the victim and isolated her from her family. The victim testified that she had taken оut warrants for appellant’s arrest on prior occasions but had been coerced by appellant and his family to withdraw her complaints.
In addition to the victim’s testimony, appellant’s former wife testified that appellant had beaten, kicked, slappеd, and threatened her numerous times during their marriage and that she was still afraid of him. Delores Byars, an acquaintance of the victim who testified concerning her observations of appellant’s prior acts of violence against the victim, also testified that appellant had committed violent and abusive acts against her.
(a) Contrary to appellant’s assertions, the record reveals that the State did give timely notice of its intention to present evidence of prior violent acts against the victim and appellant’s fоrmer wife as dictated by USCR 31.1, 31.3, and the trial court held a pretrial hearing and made the findings required by USCR 31.3 as applied in
Williams v. State,
(b) Appellant also contended below and on appeаl that the prior acts were not sufficiently similar to the charged crimes to justify an exception to the general rule that evidence of prior bad acts is not admissible unless the accused first puts his character in evidence.
In
Williams,
The second prong of the
Williams
test was met because appellant’s identity as the perpetrator of the prior acts was not in question. As to the first prong, our courts have long held that evidence of prior difficulties between an accusеd and the victim is relevant to show the bent of mind, motive, intent, and course of conduct of the accused toward the victim.
Rainwater,
supra at 271-272 (1);
Cooper v. State,
With regard to the third prong of the
Williams
test, we hold the evidenсe of prior similar transactions and prior difficulties had a sufficient logical connection to the charged crimes. Viewed as a whole, the evidence at issue comprised a series of acts tending to show a course of conduct continuing up to the time of commission of the charged crimes, and this course of conduct was relevant to the issues of intent, motive, scheme, bent of mind, and lack of consent. See
Roberts,
supra at 159-160. The fact that assault differs from kidnapping and burglary does not necessarily make evidencе of the former inadmissible in a trial for commission of the latter, for the true test of admissibility is not the number of similarities between the crimes, but whether the evidence of prior incidents was substantially relevant for some purpose other than to show that the defendant likely committed the crime because he is a person of bad character.
Faison v. State,
(c) Appellant contends in his briefs that the trial court failed to weigh the probative value of this evidence against its prejudicial effect. This issue, however, was not included in appellant’s enumerations of error. An enumeration of error cannot be enlarged at the appellate level by statements in the briefs to include issues not raised in the enumerations of error.
Chezem v. State,
Moreover, even assuming, without deciding, that the trial court is required to apply this balancing test, compare
Rainwater,
supra at 272 (1) and n. 2, with
Cooper,
supra at 235 (1), considering the probative value of this evidence, the trial court did not err by concluding that any рrejudice to appellant was outweighed by its relevance to the issues on trial. See
Willis v. State,
(d) The trial court denied appellant’s motion for mistrial made after Byars testified concerning appellant’s acts of violence against her. As appellant correctly stated below, these incidents were not included in the similar transaction notice submitted by the State. Pretermitting the question whether, as the State urges, these acts against Byars were admissible as part of the res gestae of violent acts against the victim, “we hold that in the context of the other evidence in the case [that was properly admitted], it is highly probable that [admission of this evidence] did not contribute to the verdict. [Cits.] Accordingly, this enumeration of error established no ground for re *581 versal.” Parcell, supra at 440 (2).
3. In his four remaining enumerations appellant contends certain other evidence adduced by the State improperly placed his character in issue. We do not agree.
(a) Testimony that appellant threatened the victim during the kidnapping was admissible over his “character” objection as pаrt of the res gestae even if it incidentally placed appellant’s character in evidence. See
Chambers v. State,
(b) The testimony appellant challenges in his seventh enumeration of error does not appear in the record; therefore, this enumeration рresents nothing for this court to review.
Polley v. State,
(c) The testimony at issue in Enumeration 8 was part of the prior transaction evidence held admissible in Division 2, and thus the trial court did not err by admitting this evidence.
(d) The trial court denied appellant’s motion for mistrial made after the victim referrеd to appellant as a “drug addict.” A review of the transcript reveals that she made that comment on cross-examination as part of her answer to appellant’s counsel’s query about why she and appellant argued. “Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. [Cit.] Furthermore, the decision of whether to grant a mistrial is within the sound discretion of the trial court and [its] ruling will not be disturbed absent an abuse of discretion. [Cit.] Under these circumstances we find no abuse of discretion. The trial court did not err in denying appellant’s motion for a mistrial.”
Buxton v. State,
Judgment affirmed.