Arthur Scott Ramsey appeals his conviction for violating the Georgia Controlled Substances Act by selling a non-controlled substance represented to be a controlled substance. See OCGA § 16-13-30.1. He contends the trial court erred by denying his motions for mistrial after the State’s witnesses improperly injected prior illegal conduct in the proceedings; by failing to grant a mistrial after a third party had improper and prejudicial contact with the jury; by failing to charge on a lesser included offense; and by basing its sentence on an improper prior conviction. Held:
1. Ramsey’s first enumeration of error asserts that the trial court erred by denying his motions for a mistrial because two of the State’s witnesses .allegedly placed his character in issue.
(a) In the first instance, the witness’s answer about other illegal activity was made during cross-examination by Ramsey’s trial defense counsel, and this apparent “inadvertent comment in the course of cross-examination . . . does not rise to the level of misconduct condemned in
Boyd v. State,
(b) In the second instance, after Ramsey’s motion for a mistrial, the trial court issued curative instruction, and Ramsey failed to renew his motion for a mistrial. Under these circumstances, Ramsey failed to preserve the issue, and there is nothing for this Court to review.
Jackson v. State,
2. Ramsey also contends the trial court erred by refusing to grant his motion for a mistrial after a person associated with him had improper contact with an alternate juror. The record shows that upon report of the incident, the trial court conducted an inquiry, ascertained the scope of the problem, and determined that the jurors would not attribute the improper conduct to Ramsey. After Ramsey’s motion for a mistrial was denied and the trial court issued curative instructions, Ramsey again failed to preserve the issue for appellate review by renewing his motion for a mistrial. Jackson v. State, supra; Mobley v. State, supra. Thus, this enumeration of error is without *693 merit. Moreover, as the alternate juror did not participate in the deliberations and the other jurors indicated that they would not be affected by the incident, Ramsey has failed to demonstrate that any harm resulted from his friend’s conduct.
3. The trial court did not err by refusing to charge that OCGA § 16-13-30.2 is a lesser included offense of OCGA § 16-13-30.1.
State v. Burgess,
4. The record supports Ramsey’s contention that the trial court improperly considered a purported prior conviction which was not supported by admissible evidence. Under our law the best evidence of the conviction is a certified copy of the conviction. OCGA § 24-5-31. Thus, the prosecutor’s statement concerning a prior conviction was not admissible to prove the prior conviction. Moreover, as the trial court’s comments show the prosecutor’s comments were considered in arriving at the sentence imposed on Ramsey, the sentence must be vacated and the case remanded to the trial court for resentencing.
Sinkfield v. State,
Judgment affirmed in part and vacated in part.