Houston v. StateHouston v. State
- Reporters:
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- Before:
- Pope
After a trial by jury, appellant was convicted of two counts of violating the Georgia Controlled Substances Act by selling marijuana to an undercover agent in the amounts of 6.2 grams on October 3, 1984 and 25.7 grams on October 5, 1984. Stipulating at trial that each sale occurred, appellant based his defense upon his claim that he was entrapped within the meaning of
1. Appellant’s first enumeration of error challenges the denial of his motion for directed verdict of acquittal made at the close of all the evidence. He argues that after his testimony raised the issue of entrapment, the State’s failure to then produce evidence in rebuttal entitles him to a directed verdict of acquittal. We disagree.
First, in its case-in-chief the State presented the testimony of the undercover agent to whom appellant sold the quantities of marijuana. Appellant’s predisposition to sell marijuana was shown by the agent’s testimony. Appellant’s testimony to the contrary simply created a conflict in the evidence on the key element of the defense of entrapment, the issue of predisposition. See generally
Keaton v. State,
253 Ga. 70 (316 SE2d 452) (1984). The issue of entrapment was, thus, properly submitted to the jury. See
2. Appellant next asserts that the trial court erred in allowing the State to cross-examine a defense witness, Jeff Larson, concerning a prior indictment. At trial appellant’s counsel objected to the State’s question on the ground that it raised a collateral issue not involved in the case. This ground is not included on appeal by enumeration of error or argument. Instead, it is now argued that the State’s cross-examination of Larson regarding the indictment against him constituted an improper and impermissible means of impeachment. “Under similar circumstances in that a defendant argued a different basis on appeal from that urged at trial, we held in Smith v. State, 153 Ga. App. 862, 865 (5) (267 SE2d 289) [(1980)] the error enumerated was nonmeritorious for two reasons: ‘First, the error argued on appeal is not the error asserted at trial and presents nothing for review as purported error may not be raised for the first time on appeal. Velkey v. Grimes, 214 Ga. 420, 421 (105 SE2d 224) [(1958)]. Secondly, the basis argued at trial was not enumerated as error and must be considered abandoned on appeal. Kingston v. State, 127 Ga. App. 660, 661 (194 SE2d 675) [(1972)].’ ” Sempo v. State, 168 Ga. App. 152 (2) (308 SE2d 433) (1983). Accord 134 Baker Street, Inc. v. State, 172 Ga. App. 738 (5) (324 SE2d 575) (1984).
Moreover, even assuming that the issue is properly before this court for consideration, we do not find reversible error in the trial court’s permitting the disputed cross-examination of Larson, appellant’s roommate and co-worker. We agree with appellant that the State’s cross-examination of Larson regarding an apparently outstanding indictment against him for the sale of marijuana was not the proper method of impeaching him by proof of prior crimes. See
McCarty v. State,
139 Ga. App. 101 (1) (227 SE2d 898) (1976). See also
Williams v. State,
251 Ga. 749 (12) (312 SE2d 40) (1983). However, the testimony elicited on cross-examination complained of by appellant was admissible under
3. Appellant’s final enumeration cites error to the trial court’s denial of his motion for bond pending appeal. This issue is, however, rendered moot by our decisions in the foregoing divisions and our affirmance of appellant’s conviction. Compare Corbitt v. State, 167 Ga. App. 576 (307 SE2d 133) (1983).
Judgment affirmed.
Deen, P. J., and Beasley, J., concur.