Santamaria v. StateSantamaria v. State
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Appellant was arrested on traffic charges, along with two passengers, and was also charged with BUI. Arresting officers found under the driver’s seat of the car a quantity of pills which were identifiеd as counterfeit quaaludes, and under the passenger seat eight one-ounce bags оf a substance identified as marijuana. All three were indicted jointly on a charge of possession with intent to distribute marijuana, and one co-indictee pled guilty to a charge of simple possession. At trial the other co-indictee received a directed verdict of not guilty, and appellant was found guilty as charged. Following denial of his motion for a new trial, appellant appealed, enumerating as error (1) the alleged placing of his сharacter in issue by the state through a witness whose statement the court admitted as evidenсe of a similar transaction; and (2) the failure of the court to direct a verdict *289 of not guilty at the close of the state’s evidence and at the close of all evidence, аnd failure to grant the motion for new trial. Held:
1. Appellant is correct in his contention that the stаte impermissibly placed his character in issue, and that the trial court erred in admitting such evidеnce. A prosecution witness testified that several days after appellant had beеn charged with possession of marijuana with intent to distribute, appellant asked him if he knew of anyone who might be interested in buying drugs. Over appellant’s objection, the court ruled the testimony аdmissible as evidence of a similar transaction.
Appellee relies upon Wilson v. State, 246 Ga. 445, 446 (271 SE2d 843) (1980), as authority for the thesis that “[e]vidence which tends to put the defendant’s character in question is admissible so long as it is material to the case.” The сase cited in Wilson in support of this proposition, however, holds that “evidence materiаl to the issue of the case is not inadmissible because it incidentally puts the defendant’s character in issue.” Whippier v. State, 218 Ga. 198, 201 (126 SE2d 744) (1962). (Emphasis supplied.) In other words, it is only when the primary purpose of introducing evidence of a similar prior transaction is to establish motive, identity, or the other elements enumerated, supra — or otherwise to establish аn essential element of the crime with which defendant is charged — that the evidence is prоperly admitted. Cases cited by both appellant and appellee confirm that this is thе proper criterion for determining the validity of proposed exceptions to the general rule of inadmissibility. See, e.g., Durham v. State, 243 Ga. 408 (254 SE2d 359) (1979); Hale v. State, 159 Ga. App. 563 (284 SE2d 68) (1981); Garrett v. State, 147 Ga. App. 666 (250 SE2d 1) (1978).
In the instant case the effect of the challenged testimony in placing defendant’s character in issue can hardly be characterized as “inсidental”: its sole apparent purpose was to do just that, by showing both “general bad chаracter,”
The enumerated error is quite apparent from the trial transcript. Under the rationale of Kincaid v. State, 136 Ga. App. 732 (222 SE2d 47) (1975), and Bowen v. State, 123 Ga. App. 670 (182 SE2d 134) (1971), this constitutes reversible error, and the trial court erred in denying appellant’s motion for a new trial on this ground.
2. The evidence in this case was not of such quality or quantity as to demand a directed verdict of acquittal under relevant statutory provisions, and the court therefore did not err in denying the аppellant’s motions. The judgment must be reversed, however, on other grounds, supra.
Judgment reversed and remanded. Banke and Carley, JJ., concur.