Defendant Moses Racquemore appeals his conviction of theft by shoplifting for concealing two packages of meat in his trousers at a grocery store.
1. We first address defendant’s argument that the evidence was insufficient to support his conviction because the State failed to prove the element of intent to appropriate the merchandise for his own use or deprive the owner of its use or value, as required by OCGA § 16-8-14. Evidence was presented that defendant was seen stuffing two packages of meat into the waist of his trousers and pulling his shirt down over them. Defendant did not leave the store with the meat, but returned the meat to the display case after the store security guard and store manager started watching his actions and following him. “ ‘Whether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous. (Cit.)’ ”
Foster v. State,
2. We agree, however, that the trial court erred in permitting into evidence certain testimony which called into issue defendant’s general character without giving a proper cautionary instruction to the jury. The store manager, in the course of describing his interrogation of the defendant after he was taken to the store office, testified he asked the defendant where he lived and the defendant responded that he was on probation and living at a half-way house. Defendant’s attorney moved for mistrial on the ground that the testimony improperly placed the defendant’s character into evidence. After a hearing outside the presence of the jury and a brief recess for the judge to review the law, the judge informed the parties that he would deny the motion for mistrial but would instruct the jury that the testimony at issue was admissible for the limited purpose of establishing the requisite criminal intent. Defendant’s attorney stated his exception to the court’s ruling. Nevertheless, once the jury returned to the courtroom, the judge instructed them that the defendant was on trial only for *89 shoplifting and the testimony concerning the defendant’s probation “would only be admissible for the limited purpose of showing or attempting to establish the requisite intent required in a shoplifting prosecution.”
We hold that the instruction supposedly “limiting” the jury’s consideration of the testimony was improper because the statement was nót admissible for the purpose of showing intent to commit the crime charged. The only manner in which the fact that defendant had been convicted of some other crime could be relevant to his intent to commit the crime charged is the improper inference that commission of a previous crime reflects on the defendant’s character or propensity to commit another crime.
Contrary to the argument made by the State, this is not a case, as in
Greer v. State,
We also reject the State’s argument that defendant waived any objection to the trial court’s ruling by failing to renew the motion for mistrial after it was denied and the “curative” instruction was given. The record shows defendant stated his exception to the trial court’s ruling after the judge denied the motion and announced his intention to give the instruction to the jury. Since the defendant’s exception was clearly stated after the ruling was made, we see no reason why the exception had to be repeated after the instruction was given to the jury.
Where, as here, the introduction into evidence of a prior offense served no proper purpose such as proving an element of the offense, then it is reversible error for the trial court to take no remedial action in response to defendant’s motion for mistrial. See
Lancaster v. State,
3. It is not necessary to address defendant’s remaining enumeration of error concerning certain jury charges.
Judgment reversed.