Following a jury trial, Kelvin Lanier Evans a/k/a Kevin Lee Woods was convicted of one count of entering an automobile (OCGA § 16-8-18) and one count of attempt to enter an automobile
Viewed in the light most favorable to conviction,
That evening, Fagan was driving his 2002 BMW 5301, he stopped at the restaurant, and he left his Tumi briefcase in the back seat. Fagan’s briefcase contained his Latitude laptop computer, his glasses and some work files. When Fagan returned to his car after dinner, he saw that the rear passenger window was broken and his briefcase and all of its contents were missing. Fagan did not give Evans or anyone else permission to enter his vehicle that night.
On the night in question, Joey D’s had numerous surveillance cameras that recorded video of areas around the restaurant including the parking lot. The cameras showed a white vehicle entering the parking lot and backing into a spaсe next to a Pontiac Firebird. Two men got out of the vehicle and began walking around the parking lot.
One of the men attempted to break the windows of the Firebird. Meanwhile, the other man, who had exited the white vehicle еmpty handed, ran across the parking lot and returned to the white vehicle with a briefcase in one hand. Both men got back into the white vehicle and sped away from the scene. The still shots taken from the recorded vidеo, which the jury viewed, clearly show the men who committed the crimes.
1. Evans contends that the trial court erred in admitting similar transaction evidence of his involvement in three prior incidents of entering an automobile. We discern no error.
that it seeks to introduce the evidence for an appropriate purpose; that there is sufficient evidence to establish that the accused committed the independent act; and that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.3
(Citations omitted.) Id. at 24 (2). “In assessing the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate act and the crimes in question.” (Citation omitted.) Id. Moreover, “there can be a substantial variation of circumstаnces where there exists a logical connection between crimes which are essentially dissimilar.” (Punctuation and footnote omitted.) Mattox v. State,
Here, the trial court held a pretrial hearing at which the State proffered evidencе of three similar transactions involving Evans for the purpose of showing identity, plan, scheme and bent of mind.
The State prоffered that the third similar transaction occurred in February 2008 in a hospital parking deck; involved the same mode of theft — breaking into the victim’s car by damaging the window and taking goods from the car, including the victim’s Prada purse; and rеsulted in a guilty verdict at trial. The State further proffered that it planned to offer a video of this incident showing Evans carrying the victim’s purse. The trial court accepted the State’s proffer, and admitted evidence of the three similar transactions over trial counsel’s ongoing objection.
As set forth above, the decision to admit similar transaction evidence is within the trial court’s discretion and that decision will not be disturbed absent an abuse of discretion. See Matthews v. State,
With regard to the trial court’s limitation on voir dire, Evans was entitled under OCGA § 15-12-133 to examine the individual jurors as to any matter or thing that would illustrate any bias of the juror in the case. See Stell v. State,
3. Evans contends that the trial court should have granted his motion for a mistrial after striking evidence of other incidents of entering automobiles. We do not agree.
After the State rested its case, Evans moved for a mistrial based on thе trial court’s admission of the August 2002 and the February 2008 similar transactions, arguing that the evidence presented by the State during trial differed from the State’s pretrial proffer. The trial court struck the evidence from the February 2008 similar transаction. The trial court denied Evans’s motion for a mistrial, and ruled that evidence of the first two similar transactions in August 2002 and October 2002 were admissible.
Evans then moved for a directed verdict on four of the eight counts charged in Evans’s indictment. The trial court granted Evans’s motion for a directed verdict on Counts 2,4, 5, and 8 of the indictment, finding that there was insufficient evidence to justify a finding beyond a reasonable doubt that Evans committed those offenses. The trial court then denied Evans’s renewed motion for a mistrial, and, without objection, instructed the jury to disregard evidence of the additional counts which resulted in directed verdicts, as well as the evidence of the third similar transaction. The cirсumstances of this case do not show that the trial court abused its discretion in denying Evans’s motion for a mistrial.
“The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” (Citation omitted.) Jackson v. State,
Here, the trial court’s instruction to the jury to disregard evidence of the third similar transaction and the сounts on which the trial court directed a verdict was sufficient to correct any error in admitting this evidence during the State’s case-in-chief. See Rucker v. State,
Judgment affirmed.
Notes
The jury acquitted Evans of one additional count of entering another automobile, the trial court directed a verdict for Evans on four counts, and the State nolle prossed the remaining count.
Jackson v. Virginia,
This case was tried under the old Evidence Code. Under the new Evidence Code, the provisions governing the admission of similar transaction evidence have changed. See OCGA § 24-4-404 (b). These changes, however, arе applicable to cases tried after January 1, 2013. See Ga. L. 2011, p. 99, § 101.
As more fully set forth in Division 3 below, the trial court during Evans’s trial struck the evidence of the third similar transaction, and Evans moved for a mistrial. The trial court denied Evans’s mоtion, but instructed the jury to disregard the evidence of the third incident.
Although the Fulton County incident was eventually dead docketed, “[i]t is well settled that there need not he a criminal charge or conviction relating to a similar offеnse for it to be admissible.” (Citations and punctuation omitted.) Hill v. State,
The second similar transaction involved Evans’s conviction under his alias Kevin Lee Woods. See Woods v. State,