McCullough v. State

Beasley, Judge,

concurring specially.

I concur even though the trial court did not adequately limit the use the jury could make of the evidence of another DUI about 14 months earlier. McCullough does not enumerate this as error, but it should be noted because of the frequent recurrence of this practice, which in effect permits the jury to consider the similar incident for any purpose in determining the accused’s guilt.

McCullough was on trial for DUI (“less safe”), failure to stop at a stop sign, open container, and improper lane usage. In advance of trial the State moved that it be permitted to present evidence of similar occurrences “to show his identity, bent of mind, motive, modus operandi, intent and course of conduct” with respect to the DUI charge. A hearing was held before the trial began, and the State argued after it presented the proposed evidence to the court that the purpose of showing the prior DUI was “to show course of conduct as *102to the refusal [to take the chemical test] and as to the driving itself.” The court ruled that it would be admitted.

When the trial began, the State called the officer knowledgeable about the prior occurrence as its first witness. Before he testified, the court instructed the jury that “any evidence of any prior charge or offense should not be considered in any way as to the Defendant’s character, but it is admissible for purposes of showing intent, motive, disposition, method of operating, course of conduct, that kind of thing, and it would only be admissible for that purpose and not for anything else.”

The officer related the details of the prior occurrence, and then both sides’ evidence regarding the offenses being tried was related to the jury. In the final instructions to the jury, the court charged: “Sometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose to which the evidence is limited and not for any other purpose. The law provides that evidence of other transactions of this Defendant that are similar in terms of common design, scheme, plan, course of conduct, motive, or other factors, to the offense for which the Defendant is on trial in this case may be admissible and may be considered by the jury for the limited purpose of showing, if it does show, the state of mind, the motive, or the method of operation and matters of that sort. But it should not be considered by you for any other purpose. The Defendant is only on trial for this particular offense and not for any other charge.”

A jury, hearing these two charges, could hardly determine the “sole” issue it could consider the evidence for, much less that it was to be considered only in connection with the DUI offense, or what issue it could not be used to support. Prior acts evidence, in order to be admissible at all, must “involve some sort of probative connection between the crime charged and the prior act.” Barrett v. State, 263 Ga. 533, 534 (436 SE2d 480) (1993). Otherwise “the prejudicial nature of the prior act evidence will outweigh its probative value.” Id. Its relevance must “outweighU its prejudicial impact.” (Emphasis in original.) Oller v. State, 187 Ga. App. 818, 819 (2) (371 SE2d 455) (1988).

In other cases decided by this Court, prior DUIs have been permitted as relevant to prove bent of mind or course of conduct. See, e.g., Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992) (“bent of mind or course of conduct”); Blane v. State, 195 Ga. App. 504 (1) (393 SE2d 759) (1990) (“course of conduct”); Simon v. State, 182 Ga. App. 210, 211 (1) (355 SE2d 120) (1987) (“course of conduct and bent of mind”); Kilgore v. State, 176 Ga. App. 121 (1) (335 SE2d 465) (1985) (“course of conduct”).

The majority opinion in this case rules that the evidence was *103allowable as circumstantial proof of McCullough’s “bent of mind and course of conduct” on the night of the offenses on trial. Even if these are legitimate bases for allowing this evidence as connecting the prior DUI with the incident on trial, the two instances of instructing the jury as to the use of this evidence were not so limited and in fact were so broad as to permit virtually unlimited consideration. See Stephan v. State, 205 Ga. App. 241, 242 (2) (422 SE2d 25) (1992).

Decided January 7, 1998. Millard G. Gouge, for appellant. Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellee.