Appellant, Dale Chezem, appeals from the verdict of guilty of public indecency, as charged, and denial of his motion for new trial. The amended accusation avers, inter alia, appellant did unlawfully perform a lewd appearance in a state of complete nudity in a public place, to-wit: in front of a glass door facing a city street, and that said appearance further involved a lewd exposure of appellant’s sexual organs. Held:
1. Appellant asserts that the trial court erred in allowing two witnesses to testify when they had not been listed as witnesses, following a timely defense demand prior to arraignment, until immediately prior to trial.
The record reflects that the husband and wife who lived across the street from appellant and who had filed a complaint with the police regarding appellant’s conduct and from whose house appellant’s conduct was witnessed by two law enforcement officers, were allowed to testify as rebuttal witnesses for the State. Appellant’s counsel made an admission in judicio of knowledge that the wife was the person who had been present in the room with the officers the day of the incident, although counsel disclaimed having any information as to the scope of the husband’s knowledge of the incident. The record further reflects that although the State had been aware of these witnesses prior to trial, it was not until immediately before trial that appellant was served with a supplemental witness list including the names of these witnesses; thereafter, an agreement apparently was entered between the State and appellant that the witnesses would not be used by the State. Appellant, however, does not assert the State broke this agreement in bad faith, rather it is asserted the use of the witnesses in rebuttal was not authorized where the State was well aware of the witnesses in advance, and where the nature of the witnesses’ testimony was such that the State reasonably knew it would use the witnesses at trial “and their evidence was, in essence, case-in-chief evidence.”
Appellant cites a number of cases for our consideration, see, e.g.,
Allison v. State,
The transcending purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the
opportunity
to interview prior to trial.
Moody v. State,
“The sanction of the statute excluding the testimony of a witness whose identity has not been disclosed as required by the statute is not a mandatory exclusion and the protection contemplated by the statute can be accomplished where the trial court in its discretion determines the defendant can be protected by some other form of relief.”
Bone v. State,
Additionally, if it is not error to call an unlisted witness in rebuttal
(Wilson v. State,
2. Appellant’s brief contains a reference to the failure of the trial court to give certain limiting instructions. On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration.
Nobles v. State,
3. Appellant asserts the trial court erred in allowing similar transaction evidence to be presented when the State had not served a notice of similar transaction, as required by Uniform Superior Court Rule 31.3.
The testimony of the husband and wife elicited by the State, during its rebuttal, included instances of so-called similar transactions, that is, other instances of similar public indecency committed by appellant, notwithstanding no notice of such similar transactions had been served upon appellant pursuant to Uniform Superior Court Rule 31.3.
*871 We note that before the evidence of similar transactions was introduced at trial appellant had taken the stand in his own defense, and had presented a character witness who testified appellant enjoyed a “very good” reputation in the community and that he would believe him under oath. This is not a situation where State’s similar transaction evidence causes defendant’s character to be placed in issue before defendant has affirmatively done so. Appellant does not claim a violation of OCGA § 24-9-20 occurred, and accordingly any such appellate contention is abandoned. Court of Appeals Rule 15 (c).
Contrary to appellant’s assertions, USCR 31.3 was not violated in this case for two distinct reasons. First, the so-called similar transaction evidence establishes an unmistakable pattern of public indecency involving the same type of conduct as contained in the alternative averments of the amended accusation. These acts occurred well within the statute of limitation as the record established unmistakably the time frame during which appellant lived in that neighborhood prior to his arrest. Evidence of guilt of an accused is not restricted to the day mentioned in the indictment or accusation, but may extend to any appropriate date previous to the finding in the indictment or accusation, and within the statute of limitation from the prosecution of the offense charged. Compare
Keri v. State,
Moreover, as in
Smith v. State,
4. Appellant asserts that the trial court erred in denying a motion for mistrial when the State elicited testimony about unconnected sexual misconduct. Specifically, appellant argues that the State elicited testimony that implied appellant had done some intentional act to the rebuttal witnesses’ nine-year-old daughter, as the wife testified that after her daughter had come to her she started to “watch her a little closer to make sure she’s okay.”
Appellant timely moved for a mistrial but after it was denied requested no curative instructions. See generally
Oller v. State,
Review of the record establishes that the testimony of which ap *873 pellant complains was not responsive to the question asked by the prosecutor, the State did not intentionally elicit the witness’ response, and contrary to appellant’s claim it was standing alone, innocuous in its content. The trial court did not abuse its discretion in denying the mistrial motion.
Moreover, during cross-examination of the husband after the wife testified in rebuttal, appellant’s attorney asked a question tending to imply the husband had been intentionally looking into appellant’s house. This question drew both an angry denial from the husband, and a preparatory remark to a further explanation by the husband, as follows: “what he’s [appellant] doing, mooning my little daughter and start doing this damage. . . .” Neither a motion for mistrial nor a motion to strike as nonresponsive was made to the husband’s testimony by the appellant’s counsel. Under these circumstances, it was the trial tactics of appellant rather than the State which directly led to the jury’s knowledge of appellant’s conduct toward the daughter.
5. Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty as charged.
Jackson v. Virginia,
Appellant’s other contentions are without merit.
Judgment affirmed.