A jury found James (“Jimmy”) Lee Jones guilty of attempting to *722 murder his ex-wife. He appeals from the judgment entered on that verdict and the denial of his motion for new trial.
The following is a brief synopsis of the evidence рresented at trial: Barbara Mace filed a divorce action against Jones, which he opposed. Before the divorce was final, one of Mace’s children from a prior marriagе accused Jones of sexually molesting her. The Department of Family & Children Services investigated the allegations, and Jones was arrested and indicted on charges of child molestation and entiсing a child for indecent purposes. The indictment was read to the jury. Jones was raped and beaten while he was in jail on those charges. According to testimony from several witnesses, Jones believed Mace had instigated the child molestation case, and he held her responsible for the violence done to him in prison and for his continuing legal problems. A woman with whom Jones had lived in Tennessee after his relationship with Mace ended testified that she overheard Jones trying to hire someone to kill Mace. When she found a hand-drawn map to Mace’s house, she reported it to police, but no arrest was made. Jones then moved to Savannah, where he became increasingly agitated at work, frequently berating Mace and talking about killing her or having her killed. Jones asked a co-worker, John Galletta, if he would kill Mace for him. Galletta testified that he thought Jones was joking and agreed to do it. When Jones provided him with a map to her house and showed him a gun and a silencer he was trying to make out of a lawn mower muffler, Galletta realized that Jones was serious. Galletta drove from Savannah to Mace’s workplace near Rome to warn her about the plan. Mace contacted local police who asked for assistance from the Georgia Bureau of Investigation. The GBI contacted Galletta who agreed to wear a body wire to rеcord conversations with Jones about the plans to murder Mace. Galletta taped Jones talking about his difficulties in getting the money together to pay Galletta and problems making the silencer for the gun, but emphasizing his urgent desire to have Mace murdered. At one point on the tape, Jones tells Galletta: ‘Yeah I want it done. ... I don’t care if my damn kids are with her or not. I want it done.” When Jones told Galletta he was going out of town, Galletta and the GBI were concerned that Jones might try to kill Mace himself, and he was arrested.
1. In several related enumerations of error, Jones alleges the trial court erred in admitting the child molestation charges as similar transaction evidence. We agree.
As a preliminary matter, we note that no hearing was conducted as required by Uniform Superior Cоurt Rule 31.3 (B) to determine the admissibility of the similar transaction evidence and that Jones made no objection to the trial court’s failure to conduct such a hearing. However, his failure to object tо the lack of a hearing does not
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constitute a waiver or preclude our consideration of this issue on appeal. See
Riddle v. State,
“ ‘(E)vidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion. . . .’
Williams v. State,
This is not to say that in order to establish motive the state could not have instructed their witnesses to testify that Jones had been arrested on some unspecified charge, or had trouble with the law generally, and that he believed Mace was responsible for those charges. While this evidence would also have introduced Jones’ character into evidence, it would have done so only incidentally and for a proper purpose. “While motive is not an essential element in the proof of the crime of [attempted murder], the State is entitled to present evidence to establish that there was a motive. Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” (Citations and punctuаtion omitted.)
Stephens v. State,
We next consider whether it was highly probable that the erroneous admission of the child molestation charges as similar transaction evidence contributed to the judgment, warranting a revеrsal of Jones’ conviction. See
Johnson v. State,
2. Neither do we find the trial court erred in denying Jones’ motions for mistriаl when one witness referred to him as a “sick pervert” and another referred to him as a “hateful” person. “Where prejudicial matters have been presented to the jury, the trial court, in its discretion, may determine whether a mistrial is required or whether the giving of cautionary instructions to the jury is an adequate remedial device. The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and
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unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” (Citations and punctuation omitted.)
Bess v. State,
3. In a related enumeration of error, Jones complains the trial court erred in failing to give curative instructions after denying his motion for mistrial made when Mace testified that Jones wanted to take naked pictures of her. Jones assumes that this statement also improperly placed his character into evidence. The denial of a motion for mistrial, even absent curative instruсtions, is not always error. “In the absence of a demonstration that a mistrial was essential to preservation of [Jones’] right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given.” (Citation and punctuation omitted.)
Chezem v. State,
4. We have examined Jones’ remaining enumerations of error and find them to be. without merit.
Judgment affirmed.