concurring specially.
I disagree with Division 2 because the Colemans waived any error when they refused a curative instruction, which might have remedied any error. I agree, however, that the conviction must be reversed for a new trial. With regard to Division 3 and the admission of the evidence of marijuana use, it was reversible error to allow the State to admit evidence of the Colemans’ use of marijuana over and above what could have been admitted as res gestae. That error was not harmless because the improper evidence was prejudicial and the evidence of guilt is not overwhelming.
The DFACS worker only testified that “the child was in foster care for a time. ...” Although the Colemans moved for a mistrial, they turned down the court’s offer to give a curative instruction, which normally means that they cannot contest the denial of their motion for mistrial:
Because curative instructions were offered and refused, [the appellant] cannot now complain of the testimony. Jones v. State, 250 Ga. 166, 168 (296 SE2d 598) (1982). Under these circumstances, the denial of the motion for a mistrial was not an abuse of discretion. Conklin v. State, 254 Ga. 558, 568 (331 SE2d 532) (1985).
Bromley v. State, 259 Ga. 377, 380 (4) (380 SE2d 694) (1989) (testimony that defendant was asked to take a polygraph examination). See also Williams v. State, 214 Ga. App. 834, 835 (449 SE2d 532) (1994) (following Bromley); Wilbanks v. State, 251 Ga. App. 248, 268 (19) (e) (554 SE2d 248) (2001) (statement that defendant was on drugs). Furthermore, “[i]n the absence of a demonstration that a mistrial was essential to preservation of a defendant’s 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. [Cit.]” Bell v. State, 179 Ga. App. 491 (1) (347 SE2d 321) (1986).
Here, a curative instruction might have remedied any problem. Curative instructions have been used to successfully remedy a host *739of testimonial errors concerning improper evidence, although there are limits. See, e.g., Hall v. State, 161 Ga. App. 521, 523 (1) (289 SE2d 313) (1982) (evidence of the confession of a co-defendant implicating a defendant cannot be cured by a limiting instruction).
Decided March 24, 2011 John L. Tracy, for appellant (case no. A10A2254).With regard to the mention of foster care, such care is often used for placement of children deemed to be deprived. The jury possibly could be told that the definition of deprivation “focuses upon the needs of the child regardless of parental fault.” (Citation and punctuation omitted.) In the Interest of A. B., 285 Ga. App. 288 (645 SE2d 716) (2007). Or a jury possibly could be told that the child was in foster care as a result of the allegations raised against the parents and that additional decisions regarding the child’s care will be determined after the trial. Other instructions might be appropriate.
Nevertheless, the case must be reversed because of the improper admission of a large part of the evidence that the Colemans bought and smoked marijuana. I agree with the conclusion that the trial court erred by concluding that the Colemans had raised the issue by claiming that they were poor and that any evidence related to marijuana therefore could be admitted. It is true that evidence of the parents’ marijuana use that took place in the first six weeks of their child’s life — the dates relevant to the allegations against them — may be admissible as part of the res gestae of the crime. Pless v. State, 260 Ga. 96, 98 (2) (390 SE2d 40) (1990); Carrie v. State, 298 Ga. App. 55, 58 (1) (c) (679 SE2d 30) (2009). But other evidence of their marijuana use, from times unrelated to the allegations is inadmissible.3 Plessy, 260 Ga. at 98 (2) (distinguishing testimony about the defendant’s drug use on the day of the crime from other testimony about the defendant’s drug use unconnected with the crime). And given that the evidence of guilt was not overwhelming, admission of the marijuana evidence was prejudicial, reversible error. See Crosby v. State, 269 Ga. 434, 435 (3) (498 SE2d 62) (1998) (evidence that defendant possessed a small amount of marijuana was irrelevant and prejudicial); Hampton v. State, 300 Ga. App. 49 (684 SE2d 118) (2009) (improper admission of character evidence of “probation for an unspecified prior offense involving cocaine” was reversible error).
Norman J. Crowe, Jr., for appellant (case no. A10A2255). C. Paul Bowden, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.This evidence included that, without any reference to a certain time, Brent Coleman smoked marijuana; that he might still smoke marijuana as of the trial, which was over three years after the relevant incident; that he purchased marijuana for a certain price; and that he had been smoking marijuana for a long time.