Editor's notes.

- Ga. L. 2011, p. 99, § 1/HB 24, not codified by the General Assembly, provides that: "It is the intent of the General Assembly in enacting this Act to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1, 2013, to the extent that such interpretation is consistent with the Constitution of Georgia. Where conflicts were found to exist among the decisions of the various circuit courts of appeal interpreting the federal rules of evidence, the General Assembly considered the decisions of the 11th Circuit Court of Appeals. It is the intent of the General Assembly to revise, modernize, and reenact the general laws of this state relating to evidence while adopting, in large measure, the Federal Rules of Evidence. The General Assembly is cognizant that there are many issues regarding evidence that are not covered by the Federal Rules of Evidence and in those situations the former provisions of Title 24 have been retained. Unless displaced by the particular provisions of this Act, the General Assembly intends that the substantive law of evidence in Georgia as it existed on December 31, 2012, be retained."

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Ga. L. 2011, p. 99, § 2/HB 24, and Ga. L. 2012, p. 651, § 2-1/HB 46, effective January 1, 2013, repealed the Code sections formerly codified at this title and enacted the current title. The former title consisted of §§ 24-1-1 through24-1-5 (Chapter 1); 24-2-1 through24-2-4 (Chapter 2); 24-3-1 through24-3-18 (Article 1 of Chapter 3); 24-3-30 through24-3-38 (Article 2 of Chapter 3); 24-3-50 through24-3-53 (Article 3 of Chapter 3); 24-4-1 through24-4-9 (Article 1 of Chapter 4); 24-4-20 through24-4-27 (Article 2 of Chapter 4); 24-4-40 through24-4-48 (Article 3 of Chapter 4); 24-4-60 through24-4-65 (Article 4 of Chapter 4); 24-5-1 through24-5-5 (Article 1 of Chapter 5); 24-5-20 through24-5-33 (Article 2 of Chapter 5); 24-6-1 through24-6-10 (Chapter 6); 24-7-1 through24-7-9 (Article 1 of Chapter 7);24-7-20 though24-7-27 (Article 2 of Chapter 7); 24-8-1 through24-8-6 (Article 1 of Chapter 8); 24-8-20 through24-8-30 (Article 2 of Chapter 8); 24-9-1 through24-9-7 (Article 1 of Chapter 9); 24-9-20 through24-9-30 (Part 1, Article 2 of Chapter 9); 24-9-40 through24-9-47 (Part 2, Article 2 of Chapter 9); 24-9-60 through24-9-70 (Article 3 of Chapter 9); 24-9-80 through24-9-85 (Article 4 of Chapter 9); 24-9-100 through24-9-108 (Article 5 of Chapter 9);24-10-1 through24-10-7 (Article 1 of Chapter 10); 24-10-20 through24-1-29 (Part 1, Article 2 of Chapter 10); 24-10-40 through24-10-45 (Part 2, Article 2 of Chapter 10); 24-10-60 through24-10-62 (Article 3 of Chapter 10); 24-10-70 through24-10-76 (Article 4 of Chapter 10); 24-10-90 through24-10-97 (Article 5 of Chapter 10); 24-10-110 through24-10-116 (Article 6 of Chapter 10); 24-10-130 through24-10-139 (Article 7 of Chapter 10); 24-10-150 through24-10-154 (Article 8 of Chapter 10) and was based on Laws 1792, Cobb's 1851 Digest, p. 353; Laws 1799, Cobb's 1851 Digest, p. 276; Laws 1799, Cobb's 1851 Digest, p. 277; Laws 1799, Cobb's 1851 Digest, p. 463; Laws 1819, Cobb's 1851 Digest, p. 272; Laws 1829, Cobb's 1851 Digest, p. 278; Laws 1830, Cobb's 1851 Digest, p. 273; Laws 1836, Cobb's 1851 Digest, p. 273; Ga. L. 1841, p. 144, § 1; Laws 1841, Cobb's 1851 Digest, p. 465; Laws 1842, Cobb's 1851 Digest, p. 280; Laws 1850, Cobb's 1851 Digest, p. 280; Ga. L. 1855-56, p. 138, § 2; Ga. L. 1855-56, p. 143, § 1; Ga. L. 1855-56, p. 238, §§ 1 - 8; Ga. L. 1855-56, p. 255, § 1; Ga. L. 1858, p. 53, § 1; Ga. L. 1859, p. 18, § 1; Orig. Code 1863, §§ 3035, 3041 - 3044, 3051, 3437 - 3442, 3444, 3446, 3447, 3670 - 3699, 3701 - 3717, 3719, 3720, 3723 - 3731, 3737 - 3740, 3742 - 3745, 3747, 3749, 3753 - 3755, 3757 - 3766, 3768 - 3776, 3784 - 3800, 3888 - 3891, 3894, 3928, 4094; Code 1863, §§ 3721, 3741, 3744, 3745, 3765, 3767, 3768, 3772; 3884 - 3888, 3890, 3891; Ga. L. 1866, p. 138, §§ 1 - 4; Ga. L. 1866, p. 139, § 1; Ga. L. 1868, p. 24, § 1; Code 1868, §§ 3047, 3053 - 3056, 3063, 3446, 3457 - 3464, 3467, 3694 - 3723, 3725 - 3741, 3743 - 3745, 3747 - 3755, 3761 - 3769, 3771 - 3773, 3777 - 3779, 3781 - 3820, 3887, 3901, 3904 - 3911, 3914, 3916, 3951, 4123; Ga. L. 1873, p. 25, § 1; Ga. L. 1873, p. 35, § 1; Code 1873, §§ 3102, 3108, 3109, 3111, 3118, 3508 - 3515, 3517, 3518, 3747 - 3776, 3778 - 3794, 3796 - 3798, 3800 - 3808, 3814 - 3822, 3824, 3826, 3829 - 3833, 3835 - 3845, 3849 - 3876, 3980 - 3987, 3990, 3992, 4027, 4182, 4637; Ga. L. 1874, p. 22, § 1; Ga. L. 1876, p. 101, §§ 1, 2; Ga. L. 1877, p. 21, § 1; Ga. L. 1878-79, p. 53, § 1; Ga. L. 1878-79, p. 66, § 1; Ga. L. 1878-79, p. 151, § 1; Ga. L. 1880-81, p. 78, § 1; Ga. L. 1880-81, p. 121, § 1; Ga. L. 1882-83, p. 96, §§ 1 - 4; Ga. L. 1882-83, p. 106, §§ 1, 2; Ga. L. 1882-83, p. 135, § 1; Code 1882, §§ 3102, 3108 - 3111, 3118, 3508 - 3514, 3515, 3517, 3518, 3747 - 3776, 3778 - 3794, 3796, 3798, 3800 - 3808, 3814 - 3822, 3824, 3826, 3829 - 3832, 3834 - 3845, 3849 - 3876, 3980 - 3987, 3990, 3992, 3995a, 3995b, 4027, 4182, 4637; Ga. L. 1887, p. 30, § 1; Ga. L. 1887, p. 112, §§ 1 - 6; Ga. L. 1889, p. 85, § 1; Ga. L. 1890-91, p. 78, § 1; Ga. L. 1890-91, p. 107, §§ 1, 2; Ga. L. 1890-91, p. 109, § 1; Ga. L. 1892, p. 60, § 1; Ga. L. 1893, p. 38, § 1; Ga. L. 1893, p. 53, § 1; Ga. L. 1894, p. 49, § 1; Ga. L. 1895, p. 31, § 1; Ga. L. 1895, p. 41, § 2; Ga. L. 1895, p. 90, § 1; Civil Code 1895, §§ 3947, 3957 - 3962, 3975, 4743 - 4748, 4750, 4751, 4754, 4756 - 4758, 5141 - 5181, 5183 - 5199, 5201 - 5213, 5216 - 5221, 5223 - 5231, 5233, 5235 - 5256, 5258 - 5295, 5323 - 5328; Penal Code 1895, §§ 982 - 991, 993 - 1007, 1009 - 1028, 1115, 1187 - 1191, 1230; Ga. L. 1897, p. 53, § 1; Ga. L. 1897, p. 87, § 1; Ga. L. 1900, p. 57, § 1; Ga. L. 1900, p. 78, §§ 1, 2; Ga. L. 1907, p. 58, § 1; Civil Code 1910, §§ 4544, 4554 - 4559, 4572, 5312 - 5317, 5319, 5320, 5323, 5325 - 5327, 5727 - 5755, 5757 - 5768, 5770 - 5786, 5788 - 5800, 5803 - 5808, 5810 - 5818, 5820, 5822 - 5845, 5847 - 5884, 5918, 5919 - 5923; Penal Code 1910, §§ 1008 - 1017, 1019 - 1033, 1035 - 1054, 1144, 1180 - 1184, 1311; Ga. L. 1919, p. 235, § 1; Ga. L. 1921, p. 119, § 1; Ga. L. 1921, p. 184, § 3; Ga. L. 1924, p. 62, § 1; Ga. L. 1927, p. 145, § 1;

Code 1933, §§ 38-101 - 38-123, 38-201, 38-202, 38-202.1, 38-203 - 38-208, 38-210 - 38-214, 38-301 - 38-309, 38-311 - 38-315, 38-401 - 38-412, 38-414 - 38-416, 38-418 - 38-420, 38-501 - 38-510, 38-601 - 38-603, 38-606 - 38-611, 38-613 - 38-621, 38-623, 38-625 - 38-630, 38-701 - 38-709, 38-801 - 38-807, 38-901, 38-902, 38-1001 - 38-1003, 38-1102, 38-1205, 38-1301, 38-1301a, 38-1302 - 38-1305, 38-1501 - 38-1507, 38-1601 - 38-1612, 38-1703 - 38-1712, 38-1801 - 38-1806, 38-1902, 38-2001 - 38-2005, 38-2401 - 38-2406, 50-123, 63-101, 63-102, 63-201 - 63-206, 63-208, 63-209, 63-302, 63-303, 81-1422; Ga. L. 1935, p. 120, § 1; Ga. L. 1939, p. 315, § 1; Ga. L. 1945, p. 227, § 1; 1945, p. 417, §§ 1-3; Ga. L. 1947, p. 568, § 1; Ga. L. 1950, p. 73, § 1; Ga. L. Ga. L. 1951, p. 468, §§ 1, 2; Ga. L. 1951, p. 596, § 1; Ga. L. 1952, p. 169, § 1; Ga. L. 1952, p. 177, §§ 1 - 3; Ga. L. 1953, Nov.-Dec. Sess., p. 212, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 288, § 2; Ga. L. 1953, Nov.-Dec. Sess., p. 319, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 484, § 1; Ga. L. 1956, p. 68, § 1; Ga. L. 1956, p. 161, § 31; Ga. L. 1957, p. 53, § 1; Ga. L. 1959, p. 190, § 1; Ga. L. 1962, p. 133, § 2; Ga. L. 1965, p. 250, § 1; Ga. L. 1966, p. 502, §§ 1, 2; Ga. L. 1968, p. 434, § 1; Ga. L. 1968, p. 1200, § 1; Ga. L. 1969, p. 607, § 1; Ga. L. 1970, p. 168, §§ 1, 3, 4; Ga. L. 1970, p. 225, § 1; Ga. L. 1971, p. 441, §§ 1 - 5; Ga. L. 1971, p. 460, § 1; Ga. L. 1973, p. 292, § 2; Ga. L. 1973, p. 299, §§ 1, 2; Ga. L. 1973, p. 547, § 1; Ga. L. 1974, p. 484, § 2; Ga. L. 1974, p. 595, §§ 1 - 5; Ga. L. 1975, p. 727, §§ 1, 2; Ga. L. 1976, p. 741, § 1; Ga. L. 1976, p. 1014, § 2; Ga. L. 1976, p. 1366, §§ 1 - 8; Ga. L. 1977, p. 226, § 1; Ga. L. 1977, p. 847, § 1; Ga. L. 1978, p. 925, § 1; Ga. L. 1978, p. 1657, § 1; Ga. L. 1978, p. 2000, § 1; Ga. L. 1979, p. 1261, §§ 1, 2; Ga. L. 1980, p. 70, §§ 1, 2; Ga. L. 1980, p. 426, § 1; Ga. L. 1980, p. 439, § 1; Ga. L. 1982, p. 982, §§ 1, 2; Ga. L. 1982, p. 1077, §§ 1, 3; Ga. L. 1982, p. 1187, §§ 1, 2; Ga. L. 1983, p. 3, § 17; Ga. L. 1983, p. 525, § 1; Ga. L. 1983, p. 852, §§ 1, 2; Ga. L. 1983, p. 884, §§ 3-23, 3-24; Ga. L. 1984, p. 22, § 24; Ga. L. 1984, p. 964, § 1; Ga. L. 1985, p. 149, § 24; Ga. L. 1985, p. 283, § 1; Ga. L. 1985, p. 407, § 1; Ga. L. 1985, p. 744, §§ 1, 2; Ga. L. 1986, p. 668, § 1; Ga. L. 1986, p. 982, § 8; Ga. L. 1986, p. 1090, § 1; Ga. L. 1986, p. 1277, §§ 2, 3; Ga. L. 1987, p. 3, § 24; Ga. L. 1987, p. 404, § 1; Ga. L. 1987, p. 595, § 1; Ga. L. 1987, p. 834, § 1; Ga. L. 1987, p. 1155, § 1; Ga. L. 1988, p. 470, § 2; Ga. L. 1988, p. 1732, § 1; Ga. L. 1988, p. 1799, § 6; Ga. L. 1989, p. 14, § 24; Ga. L. 1989, p. 272, § 1; Ga. L. 1989, p. 332, § 1; Ga. L. 1989, p. 1080, § 1; Ga. L. 1989, p. 1639, § 1; Ga. L. 1990, p. 167, § 1; Ga. L. 1990, p. 705, § 1; Ga. L. 1990, p. 1446, §§ 1, 2; Ga. L. 1990, p. 1795, § 1; Ga. L. 1991, p. 94, § 24; Ga. L. 1991, p. 773, §§ 1, 2; Ga. L. 1991, p. 787, § 1; Ga. L. 1992, p. 6, § 24; Ga. L. 1992, p. 2034, § 1; Ga. L. 1993, p. 1050, § 1; Ga. L. 1993, p. 1078, §§ 1, 2; Ga. L. 1994, p. 1895, §§ 5 - 11; Ga. L. 1995, p. 10, § 24; Ga. L. 1995, p. 858, § 1; Ga. L. 1995, p. 937, § 1; Ga. L. 1995, p. 1360, § 1; Ga. L. 1996, p. 315, § 1; Ga. L. 1996, p. 443, § 1; Ga. L. 1996, p. 795, §§ 1, 2; Ga. L. 1996, p. 1233, §§ 5, 6; Ga. L. 1996, p. 1306, § 16; Ga. L. 1997, p. 143, § 24; Ga. L. 1997, p. 851, § 3; Ga. L. 1997, p. 945, § 1; Ga. L. 1999, p. 516, § 1; Ga. L. 2000, p. 20, § 19; Ga. L. 2000, p. 1075, §§ 1 - 5; Ga. L. 2000, p. 1166, § 1; Ga. L. 2000, p. 1372, § 1; Ga. L. 2000, p. 1589, §§ 3, 4; Ga. L. 2001, p. 1219, § 1; Ga. L. 2004, p. 161, § 5; Ga. L. 2004, p. 466, §§ 5, 6; Ga. L. 2004, p. 485, § 1; Ga. L. 2005, p. 1, §§ 6, 7/SB 3; Ga. L. 2005, p. 20, §§ 13.1, 14, 15, 16/HB 170; Ga. L. 2005, p. 60, § 24/HB 95; Ga. L. 2005, p. 334, § 10A-1/HB 501; Ga. L. 2006, p. 72, § 24/SB 465; Ga. L. 2007, p. 408, § 1/HB 314; Ga. L. 2008, p. 12, §§ 2-4, 2-5/SB 433; Ga. L. 2008, p. 210, § 2/HB 1283; Ga. L. 2008, p. 252, § 1/SB 430; Ga. L. 2009, p. 453, §§ 1-4, 2-13/HB 228; Ga. L. 2010, p. 214, § 16/HB 567; Ga. L. 2010, p. 878, § 24/HB 1387; Ga. L. 2011, p. 705, §§ 5-5, 5-6/HB 214; Ga. L. 2012, p. 651, § 1-1/HB 46.

Former Code Sections to New Code Sections

This table lists each Code section of former Title 24 (as effective prior to January 1, 2013) and comparable provisions in current Title 24 (as effective on January 1, 2013).

Title 24 Title 24 Former Provisions New Title 24 --- --- 24-1-1 none 24-1-2 24-1-1 24-1-3 24-1-2 24-1-4 24-2-220 24-1-5 none 24-2-1 24-4-401, 24-4-402, 24-4-403 24-2-2 24-4-404, 24-4-405, 24-4-413, 24-4-414, 24-4-415, 24-4-417 24-2-3 24-4-412 24-2-4 24-1-106 24-3-1 24-8-801, 24-8-802 24-3-1(b) 24-8-807 24-3-2 24-8-801 24-3-3 24-8-803 24-3-4 24-8-803 24-3-5 24-8-801 24-3-6 24-8-804 24-3-7 24-8-804 24-3-8 24-8-804 24-3-9 24-8-803 24-3-10 24-8-804 24-3-11 24-8-803 24-3-12 24-8-803 24-3-13 24-8-803 24-3-14 24-8-803 24-3-15 24-8-801 24-3-16 24-8-820 24-3-17(a) 24-8-803 24-3-17 24-9-924 24-3-18 24-8-826 24-3-30 24-8-821 24-3-31 24-8-801 24-3-32 none 24-3-33 none 24-3-34 none 24-3-35 24-8-804 24-3-36 24-8-801 24-3-37 24-4-408 24-3-37.1 24-4-416 24-3-38 24-8-822 24-3-50 24-8-824 24-3-51 24-8-825 24-3-52 none 24-3-53 24-8-823 24-4-1 24-14-1 24-4-2 24-14-2 24-4-3 24-14-3 24-4-4 24-14-4 24-4-5 24-14-5 24-4-6 24-14-6 24-4-7 24-14-7 24-4-8 24-14-8 24-4-9 24-14-9 24-4-20 24-14-20 24-4-21 24-14-21 24-4-22 24-14-22 24-4-23 24-14-23 24-4-23.1 24-14-25 24-4-23.2 24-14-24 24-4-24 24-14-26 24-4-25 24-14-27 24-4-26 24-14-28 24-4-27 24-14-29 24-4-40 24-14-40 24-4-41 24-14-41 24-4-42 24-14-42 24-4-43 24-14-43 24-4-44 24-14-44 24-4-45 24-14-45 24-4-46 24-14-46 24-4-47 24-14-47 24-4-48 24-9-923 24-5-1 24-10-1001 24-5-2 24-10-1003, 24-10-1004 24-5-3 24-10-1003, 24-10-1004 24-5-4 24-10-1002 24-5-5 24-10-1003, 24-10-1004 24-5-20 24-10-1005 24-5-21 24-10-1003, 24-10-1004 24-5-22 24-10-1003, 24-10-1004, 24-10-1005 24-5-23 24-10-1003, 24-10-1004 24-5-24 24-10-1003, 24-10-1004, 24-10-1005 24-5-25 24-10-1003 24-5-26 24-10-1003 24-5-27 24-10-1005 24-5-28 24-10-1005 24-5-29 24-10-1003 24-5-30 24-10-1005 24-5-31 24-10-1005 24-5-32 24-10-1003 24-5-33 24-10-1005 24-6-1 24-3-1 24-6-2 24-3-2 24-6-3 24-3-3 24-6-4 24-3-4 24-6-5 24-3-5 24-6-6 24-3-6 24-6-7 24-3-7 24-6-8 24-3-8 24-6-9 24-3-9 24-6-10 24-3-10 24-7-1 24-9-901 24-7-2 24-10-1008 24-7-3 24-10-1007 24-7-4 24-9-903 24-7-5 24-9-903 24-7-6 24-9-901 24-7-7 24-9-901 24-7-8 24-9-902 24-7-9 24-9-921 24-7-20 24-9-902, 24-9-920 24-7-21 24-9-902 24-7-22 24-2-221 24-7-23 24-9-902 24-7-24 24-9-922 24-7-24(a)(1) 24-9-902 24-7-25 24-9-902, 24-9-922 24-7-26 24-9-902 24-7-27 24-9-902 24-8-1 24-11-2 24-8-2 24-11-2 24-8-3 24-11-2 24-8-4 24-11-3 24-8-5 24-11-3 24-8-6 24-11-3 24-8-20 24-11-20 24-8-21 24-11-21 24-8-22 24-11-22 24-8-23 none 24-8-24 24-11-23 24-8-25 24-11-24 24-8-26 24-11-25 24-8-27 24-11-26 24-8-28 24-11-27 24-8-29 24-11-28 24-8-30 24-11-29 24-9-1 24-6-601 24-9-2 24-6-601 24-9-3 26-6-610 24-9-4 24-6-601, 24-6-604 24-9-5(a) 24-6-601 24-9-5(b) 24-6-603 24-9-6 24-6-601 24-9-7 24-6-601 24-9-20 24-5-506 24-9-21 24-5-501 24-9-22 24-5-502 24-9-23

New Code Sections to Former Code Sections

This table lists each Code section of Title 24 (as effective on January 1, 2013) and comparable provisions in the former version of Title 24, and in the Federal Rules of Evidence (as effective prior to January 1, 2013).

Title 24 Title 24 New Title 24 Former Provisions --- --- 24-1-1 FRE 102, 24-1-2 24-1-2 FRE 1101, 24-1-3 24-1-101 none 24-1-102 none 24-1-103 FRE 103 24-1-104 FRE 104 24-1-105 FRE 105 24-1-106 FRE 106, 24-2-4 24-2-201 FRE 201, 24-1-4 24-2-220 24-1-4 24-2-221 24-7-22 24-3-1 24-6-1 24-3-2 24-6-2 24-3-3 24-6-3 24-3-4 24-6-4 24-3-5 24-6-5 24-3-6 24-6-6 24-3-7 24-6-7 24-3-8 24-6-8 24-3-9 24-6-9 24-3-10 24-6-10 24-4-401 FRE 401, 24-2-1 24-4-402 FRE 402, 24-2-1 24-4-403 FRE 403, 24-2-1 24-4-404 FRE 404, 24-2-2 24-4-405 FRE 405, 24-2-2 24-4-406 FRE 406 24-4-407 FRE 407 24-4-408 FRE 408, 24-3-37 24-4-409 FRE 409 24-4-410 FRE 410 24-4-411 FRE 411 24-4-412 24-2-3 24-4-413 FRE 413, 24-2-2, U.S.C.R. 31.3 24-4-414 FRE 414, U.S.C.R. 31.3, 24-2-2 24-4-415 FRE 415, 24-2-2 24-4-416 24-3-37.1 24-4-417 FRE 404(b), 24-2-2 24-5-501 24-9-21, 24-9-24, 24-9-25, 24-9-27(c) 24-5-502 24-9-22 24-5-503 24-9-23 24-5-504 24-9-26 24-5-505 24-9-27 24-5-506 24-9-20 24-5-507 24-9-28 24-5-508 24-9-30 24-5-509 none 24-6-601 FRE 601, 24-9-1, 24-9-2, 24-9-4, 24-9-5(a), 24-9-6, 24-9-7 24-6-602 FRE 602 24-6-603 FRE 603, 24-9-5(b), 24-9-60(a) 24-6-604 FRE 604, 24-9-4 24-6-605 FRE 605 24-6-606 FRE 606 24-6-607 FRE 607, 24-9-81 24-6-608 FRE 608, 24-9-83, 24-9-84 24-6-609 FRE 609, 24-9-84.1 26-6-610 FRE 610, 24-9-3 24-6-611 FRE 611, 24-9-62, 24-9-63, 24-9-64, 24-9-81 24-6-612 FRE 612, 24-9-69 24-6-613 FRE 613, 24-9-83 24-6-614 FRE 614 24-6-615 FRE 615, 24-9-61 26-6-616 24-9-61.1 24-6-620 24-9-80 24-6-621 24-9-82 24-6-622 24-9-68 24-6-623 24-9-62 24-6-650 24-9-100 24-6-651 24-9-101 24-6-652 24-9-102 24-6-653 24-9-103 24-6-654 24-9-104 24-6-655 24-9-105 24-6-656 24-9-106 24-6-657 24-9-107 24-6-658 24-9-108 24-7-701 FRE 701, 24-9-65, 24-9-66 24-7-702 FRE 702, 24-9-67.1 24-7-703 FRE 703, 24-9-67.1(a) 24-7-704 FRE 704 24-7-705 FRE 705 24-7-706 FRE 706 24-7-707 24-9-67 24-8-801 FRE 801, 24-3-1, 24-3-2, 24-3-5, 24-3-15, 24-3-31, 24-3-36 24-8-802 FRE 802, 24-3-1 24-8-803 FRE 803, 24-3-3, 24-3-4, 24-3-9, 24-3-11, 24-3-12, 24-3-13, 24-3-14, 24-3-17(a), 24-9-69 24-8-804 FRE 804, 24-3-7, 24-3-8, 24-3-10, 24-3-35 24-8-805 FRE 805 24-8-806 FRE 806 24-8-807 FRE 807, 24-3-1(b) 24-8-820 24-3-16 24-8-821 24-3-30 24-8-822 24-3-38 24-8-823 24-3-53 24-8-824 24-3-50 24-8-825 24-3-51 24-8-826 24-3-18 24-9-901 FRE 901, 24-7-1, 24-7-6, 24-7-7 24-9-902 FRE 902, 24-7-8, 24-7-20, 24-7-21, 24-7-23, 24-7-24(a)(1), 24-7-25, 24-7-26, 24-7-27 24-9-903 FRE 903, 24-7-4, 24-7-5 24-9-904 none 24-9-920 24-7-20 24-9-921 24-7-9 24-9-922 24-7-24, 24-7-25 24-9-923 24-4-48 24-9-924 24-3-17 24-10-1001 FRE 1001, 24-5-1 24-10-1002 FRE 1002, 24-5-4 24-10-1003 FRE 1003, 24-5-2, 24-5-3, 24-5-5, 24-5-21 through 24-5-26, 24-5-29, 24-5-32 24-10-1004 FRE 1004, 24-5-2, 24-5-3, 24-5-5, 24-5-21 through 24-5-24 24-10-1005 FRE 1005, 24-5-20, 24-5-22, 24-5-24, 24-5-27, 24-5-28, 24-5-30, 24-5-31, 24-5-33 24-10-1006 FRE 1006 24-10-1007 FRE 1007, 24-7-3 24-10-1008 FRE 1008, 24-7-2 24-11-1 none 24-11-2 24-8-1 through 24-8-3 24-11-3 24-8-4 through 24-8-6 24-11-20 24-8-20 24-11-21 24-8-21 24-11-22 24-8-22 24-11-23 24-8-24 24-11-24 24-8-25 24-11-25 24-8-26 24-11-26 24-8-27 24-11-27 24-8-28 24-11-28 24-8-29 24-11-29 24-8-30 24-12-1 24-9-40 24-12-2 24-9-40.2 24-12-10 24-9-41 24-12-11 24-9-42 24-12-12 24-9-43 24-12-13

Law reviews.

- For article, "Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence," see 63 Mercer L. Rev. 1 (2011). For annual survey on evidence law, see 64 Mercer L. Rev. 137 (2012). For article, "Georgia's New Evidence Code: After the Celebration, a Serious Review of Anticipated Subjects of Litigation to be Brought on by the New Legislation," see 64 Mercer L. Rev. 1 (2012). For article, "The Best Evidence Rule Made Better: A Glimpse into Georgia's New Evidence Code," see 19 Ga. St. B.J. 12 (Aug. 2013). For article, "Williams v. Illinois: Confronting Experts, Science, and the Constitution," see 64 Mercer L. Rev. 805 (2013). For annual survey on evidence law, see 64 Mercer L. Rev. 929 (2013). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Article: Evidence," see 65 Emory L.J. 945 (2014). For article, "Eleventh Circuit Survey: January 1, 2014 - December 31, 2014: Evidence," see 66 Mercer L. Rev. 965 (2015). For annual survey of evidence law, see 67 Mercer L. Rev. 907 (2016). For annual survey on evidence law, see 68 Mercer L. Rev. 121 (2016). For annual survey on evidence law, see 69 Mercer L. Rev. 101 (2017). For annual survey on evidence law, see 69 Mercer L. Rev. 1149 (2018). For annual survey on evidence law, see 70 Mercer L. Rev. 97 (2018). For article, “Where Do We Go From Here? Transformation and Acceleration of Legal Analytics in Practice,” see 35 Ga. St. U.L. Rev. 1245 (2019). For annual survey on evidence, see 70 Mercer L. Rev. 1023 (2019). For annual survey on evidence, see 71 Mercer L. Rev. 103 (2019).

CHAPTER 1 GENERAL PROVISIONS

Article 1 Purpose and Applicability of Rules of Evidence.
Article 2 General Evidentiary Matters.
Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011).

ARTICLE 1 PURPOSE AND APPLICABILITY OF RULES OF EVIDENCE

Law reviews.

- For article on the 2011 enactment of this article, see 28 Ga. St. U.L. Rev. 1 (2011).

24-1-1. Purpose and construction of the rules of evidence.

The object of all legal investigation is the discovery of truth. Rules of evidence shall be construed to secure fairness in administration, eliminate unjustifiable expense and delay, and promote the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

(Code 1981, §24-1-1, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Purpose, Fed. R. Evid. 102.

Law reviews.

- For article surveying the law in Georgia on admissions, see 8 Mercer L. Rev. 252 (1957). For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For article on the 2011 enactment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For article, "Symposium on Evidence Reform," see 47 Ga. L. Rev. 657 (2013). For article, "Symposium on Evidence Reform: Searching for Truth in the American Law of Evidence and Proof," see 47 Ga. L. Rev. 801 (2013).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Orig. Code 1863, § 3670, former Code 1868, § 3694, former Code 1873, § 3747, former Code 1882, § 3747, former Civil Code 1895, § 5142, former Penal Code 1895, § 982, former Civil Code 1910, § 5728, former Penal Code 1910, § 1008, former Code 1933, § 38-101, and former O.C.G.A. § 24-1-2 are included in the annotations for this Code section.

Former O.C.G.A. § 24-1-2 capsulized the raison d'etre for the rules which govern trials. It was not limited by the statute's terms to civil trials. Holcomb v. State, 198 Ga. App. 547, 402 S.E.2d 520, cert. denied, 198 Ga. App. 898, 402 S.E.2d 520 (1991) (decided under former O.C.G.A. § 24-1-2).

Balancing of competing rights.

- Trial court must weigh in balance the right of the state as society's representative to obtain the truth in the purest and simplest form against the right of a defendant to a trial as free as possible from improper influences. Montgomery v. State, 156 Ga. App. 448, 275 S.E.2d 72 (1980) (decided under former Code 1933, § 38-101).

Basic axiom of justice set forth in the former provisions obtained in all cases except when "it would be more unjust and productive of more evil to hear the truth than to forbear the investigation." Hollins v. State, 133 Ga. App. 183, 210 S.E.2d 354 (1974) (decided under former Code 1933, § 38-101).

Courts allowed broad discretion.

- Pursuant to the liberal rule granting the trial courts very broad discretion in permitting parties to offer additional evidence at any stage of the trial, and because leniency in this area was very unlikely to constitute an abuse of the court's discretion, the defendant failed to show that the trial court abused the court's discretion in permitting the state to reopen the evidence after the state had presented the state's case-in-chief and rested. Taylor v. State, 282 Ga. 502, 651 S.E.2d 715 (2007) (decided under former O.C.G.A. § 24-1-2).

Public trial tends to ensure the truth by forcing those who testify to relate their memories without embellishment for fear that there may be those in attendance who could call the testimony into question if not truthful. As one party to the trial, the state is entitled to require common witnesses, both those charged and observers of the charged acts, to present their version of the occurrences in the presence of each other, thereby minimizing witness bias or the possibility of each defendant singly shifting blame to other absent defendants without opportunity of searching inquiry into the truth. Montgomery v. State, 156 Ga. App. 448, 275 S.E.2d 72 (1980) (decided under former O.C.G.A. § 24-1-2).

Narrow construction of the attorney-client privilege, inasmuch as the exercise of the privilege results in the exclusion of evidence, comports with the view that the ascertainment of as many facts as possible leads to the truth, the discovery of which is "the object of all legal investigation." Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 538 S.E.2d 441 (2000) (decided under former O.C.G.A. § 24-1-2).

Impeachment evidence.

- Trial court's refusal to permit the introduction of a complaint in another proceeding to impeach a party was at odds with the principle in former O.C.G.A. § 24-1-2 (see now O.C.G.A. § 24-1-1) that the object of all legal investigation was the discovery of the truth, since the statute authorized the exclusion of relevant impeaching evidence and allowed the credibility of a crucial witness to go unchallenged; clearly, the subordination of the discovery of the truth to a mere procedural device was erroneous. Ballard v. Meyers, 275 Ga. 819, 572 S.E.2d 572 (2002) (decided under former O.C.G.A. § 24-1-2).

Reopening case to admit impeachment evidence.

- Trial court did not abuse the court's discretion in reopening the evidence in a defendant's marijuana possession trial to allow the prosecutor to present impeachment witnesses who disproved a defense witness's claim that the witness did not know the defendant by showing that the witness was the defendant's girlfriend and the mother of the defendant's child. Sirmans v. State, 301 Ga. App. 756, 688 S.E.2d 669 (2009) (decided under former O.C.G.A. § 24-1-2).

Admission of doubtful evidence.

- State policy was to admit evidence, even if the admissibility of the evidence was doubtful, because it was more dangerous to suppress the truth than to allow a loophole for falsehood. Gibbons v. Maryland Cas. Co., 114 Ga. App. 788, 152 S.E.2d 815 (1966) (decided under former Code 1933, § 38-101).

When the admissibility of evidence is in doubt, the Georgia rule favored admission and submission to the jury with any needed instructions. Georgia Farm Bureau Mut. Ins. Co. v. Latimore, 151 Ga. App. 786, 261 S.E.2d 735 (1979) (decided under former Code 1933, § 38-101).

Summary judgment determines only whether material fact exists.

- On summary judgment, a trial court determines only whether a material issue of fact exists, and such determination does not include "the discovery of the truth of such fact" or permit frustration of a plaintiff's constitutional right to a trial by jury "by inferring with the existence of other facts" from predicate evidence. Bruno's Food Stores, Inc. v. Taylor, 228 Ga. App. 439, 491 S.E.2d 881 (1997) (decided under former O.C.G.A. § 24-1-2).

Reception of perjured evidence was never justice, no matter how salutary the end in view. Hollins v. State, 133 Ga. App. 183, 210 S.E.2d 354 (1974) (decided under former Code 1933, § 38-101).

Experiments made in and out of court sometimes make a practical demonstration of the question in issue, and are often the best evidence in elucidating the truth; there should be substantial and reasonable similarity in the facts proved in the case and the facts upon which the experiment is based, but the facts need not be exactly or in every particular similar; if the experiments are sufficiently similar to accomplish the purpose of assisting the jury to intelligently consider the issue of fact presented in regard to the special point in controversy, the evidence is admissible. Miller v. State, 53 Ga. App. 275, 185 S.E. 372 (1936) (decided under former Code 1933, § 38-101).

On cross-examination opposing party was entitled to a thorough and sifting examination of the witness and, when the defendant's alibi witnesses were under cross-examination, the trial court correctly refused to grant a mistrial with reference to an effort to impeach the witnesses as to whether or not the testimony was fabricated before trial since the object of all legal investigation was the discovery of truth. Mitchell v. State, 157 Ga. App. 683, 278 S.E.2d 192 (1981) (decided under former Code 1933, § 38-101).

Refusal to allow a witness to testify is a matter within the discretion of the trial court. Georgia Bldg. Servs., Inc. v. Perry, 193 Ga. App. 288, 387 S.E.2d 898 (1989) (decided under former O.C.G.A. § 24-1-2).

Failure of the trial court to allow a witness to testify in a slip and fall premises liability suit constituted an abuse of discretion requiring reversal and a new trial since the exercise of discretion was based upon a misapprehension of the facts of the case, namely, the trial court's belief that the witnesses' existence had not been revealed to the opposing party. Georgia Bldg. Servs., Inc. v. Perry, 193 Ga. App. 288, 387 S.E.2d 898 (1989) (decided under former O.C.G.A. § 24-1-2).

Blood test admitted in rebuttal.

- Ruling of the trial court to allow blood test to be admitted in rebuttal was entirely consistent with the statutorily recognized object of the rules of evidence. Gregg v. State, 216 Ga. App. 135, 453 S.E.2d 499 (1995) (decided under former O.C.G.A. § 24-1-2).

Compliance with a subpoena implicit in a confidential settlement agreement.

- Provision that a party to a confidential settlement agreement may nevertheless testify or otherwise comply with a subpoena, court order, or applicable law is an implicit term in such a confidential settlement agreement. Barger v. Garden Way, Inc., 231 Ga. App. 723, 499 S.E.2d 737 (1998) (decided under former O.C.G.A. § 24-1-2).

Trial court erred in concluding that a confidential settlement agreement, even if incorporated as another court's final order, can operate to preclude discovery by Georgia litigants of the parties to that confidential settlement agreement. Barger v. Garden Way, Inc., 231 Ga. App. 723, 499 S.E.2d 737 (1998) (decided under former O.C.G.A. § 24-1-2).

Cited in State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015); State v. Hamilton, Ga. , 839 S.E.2d 560 (2020).

District attorney request for declaratory judgment on admissibility of hearsay evidence.

- Supreme Court of Georgia reversed the judgment of the lower courts granting a district attorney a declaratory judgment because the district attorney did not have the right to bring a declaratory judgment action to obtain review of the probable cause decisions of magistrate judges at preliminary hearings or to challenge the admissibility of hearsay evidence at such hearings. Leitch v. Fleming, 291 Ga. 669, 732 S.E.2d 401 (2012) (decided under former O.C.G.A. § 24-1-2).

RESEARCH REFERENCES

ALR.

- Admissibility of experimental evidence to show visibility or line of vision, 78 A.L.R.2d 152.

Admissibility of experimental evidence, skidding tests, or the like, relating to speed or control of motor vehicle, 78 A.L.R.2d 218.

Admissibility of evidence of family circumstances of parties in personal injury actions, 37 A.L.R.3d 1082.

24-1-2. Applicability of the rules of evidence.

  1. The rules of evidence shall apply in all trials by jury in any court in this state.
  2. The rules of evidence shall apply generally to all nonjury trials and other fact-finding proceedings of any court in this state subject to the limitations set forth in subsections (c) and (d) of this Code section.
  3. The rules of evidence, except those with respect to privileges, shall not apply in the following situations:
    1. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Code Section 24-1-104;
    2. Criminal proceedings before grand juries;
    3. Proceedings for extradition or rendition;
    4. Proceedings for revoking parole;
    5. Proceedings for the issuance of warrants for arrest and search warrants except as provided by subsection (b) of Code Section 17-4-40;
    6. Proceedings with respect to release on bond;
    7. Dispositional hearings and custody hearings in juvenile court; or
    8. Contempt proceedings in which the court, pursuant to subsection (a) of Code Section 15-1-4, may act summarily.
    1. In criminal commitment or preliminary hearings in any court, the rules of evidence shall apply except that hearsay shall be admissible.
    2. In in rem forfeiture proceedings, the rules of evidence shall apply except that hearsay shall be admissible in determining probable cause or reasonable cause.
    3. In presentence hearings, the rules of evidence shall apply except that hearsay and character evidence shall be admissible.
    4. In administrative hearings, the rules of evidence as applied in the trial of nonjury civil actions shall be followed, subject to special statutory rules or agency rules as authorized by law.
  4. Except as modified by statute, the common law as expounded by Georgia courts shall continue to be applied to the admission and exclusion of evidence and to procedures at trial.

(Code 1981, §24-1-2, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Applicability of the rules, Fed. R. Evid. 1101.

Law reviews.

- For article on the 2011 enactment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For annual survey of evidence law, see 67 Mercer L. Rev. 63 (2015).

JUDICIAL DECISIONS

Application of rules of evidence.

- Under Georgia's new Evidence Code, unless a fact-finding proceeding involves one of the 12 situations enumerated in O.C.G.A. § 24-1-2(c) and (d), the rules of evidence fully apply; similarity to one or more of the enumerated situations is insufficient to limit the applicability of the evidence rules. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

Error in application of hearsay rules in determining material witness status.

- Trial court erred in applying the hearsay rules to exclude the appellant's proffered documents from the evidence the court considered in ruling on a motion for material witness certificates as to the Kentucky-based manufacturer of the breathalyzer because an exception under O.C.G.A. § 24-1-2(c)(1) applied. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

Long standing requirement for admission of victim's character evidence not changed.

- There is no reason to construe the rules regarding the admission of character evidence as a modification of Georgia's long-standing requirement that a defendant must first make a prima facie showing of self-defense before requiring a trial court to determine whether evidence pertaining to the victim's character is admissible. Oliver v. State, 329 Ga. App. 377, 765 S.E.2d 606 (2014).

Evidence of silence or failure to report crime evaluated on case-by-case basis.

- Judicially created rule excluding all comment upon a defendant's silence or failure to come forward to report a crime as more prejudicial than probative, Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991), was abrogated by Georgia's new Evidence Code; now such silence or failure to come forward must be evaluated on a case-by-case basis under O.C.G.A. § 24-4-403. State v. Orr, Ga. , S.E.2d (May 6, 2019).

Cited in Taylor v. State, 337 Ga. App. 486, 788 S.E.2d 97 (2016); W. Sky Fin., LLC v. State of Ga. ex rel. Olens, 300 Ga. 340, 793 S.E.2d 357 (2016).

RESEARCH REFERENCES

ALR.

- Applicability of rules of evidence in juvenile delinquency proceeding, 43 A.L.R.2d 1128.

Applicability of rules of evidence to juvenile transfer, waiver, or certification hearings, 37 A.L.R.5th 703.

ARTICLE 2 GENERAL EVIDENTIARY MATTERS

24-1-101. Reserved.

Reserved.

Editor's notes.

- Ga. L. 2011, p. 99, § 2/HB 24, effective January 1, 2013, reserved the designation of this Code section.

24-1-102. Reserved.

Reserved.

Editor's notes.

- Ga. L. 2011, p. 99, § 2/HB 24, effective January 1, 2013, reserved the designation of this Code section.

24-1-103. Rulings on evidence.

  1. Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and:
    1. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
    2. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked.

      Once the court makes a definitive ruling on the record admitting or excluding any evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve such claim of error for appeal.

  2. The court shall accord the parties adequate opportunity to state grounds for objections and present offers of proof. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may direct the making of an offer of proof in question and answer form.
  3. Jury proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, including, but not limited to, making statements or offers of proof or asking questions in the hearing of the jury.
  4. Nothing in this Code section shall preclude a court from taking notice of plain errors affecting substantial rights although such errors were not brought to the attention of the court.

(Code 1981, §24-1-103, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Rulings on evidence, Fed. R. Evid. 103.

JUDICIAL DECISIONS

Plain error standard applies to evidence but not closing arguments.

- Georgia has adopted the plain error standard with respect to rulings on evidence; however, this rule does not apply to a prosecutor's closing statements, which are not evidence, and are reviewed under prior case law providing for waiver of issues that were not objected to at trial. Gates v. State, 298 Ga. 324, 781 S.E.2d 772 (2016).

Under a plain error review, since the defendant failed to object at trial, the trial court did not abuse the court's discretion by allowing various autopsy photographs to be admitted into evidence at trial because the photos were not particularly gory or gruesome and were relevant to show the nature and location of the victim's injuries, which corroborated the account of the shooting given by the eyewitnesses who saw the defendant. Benton v. State, 301 Ga. 100, 799 S.E.2d 743 (2017).

In a malice murder case, pretermitting whether the trial court erred in admitting a statement that the victim had made to the victim's wife before the shooting, any error in the admission of the statement was harmless as the evidence of the defendant's guilt was overwhelming, and it was highly probable that the admission of the victim's hearsay statement did not contribute to the verdict because, prior to the shooting, the defendant had the victim's name stored as "the dead man" in the defendant's cell phone; the defendant told an employee at the tire shop where the victim worked to tell the victim that the defendant was going to kill the victim; and, after the shooting, the defendant told officers that the defendant shot the victim. Perez v. State, 303 Ga. 188, 811 S.E.2d 331 (2018).

Admission of evidence of fighting at school.

- Pretermitting whether the second defendant showed that the admission of the evidence of the second defendant's no contest plea to disrupting a public school and affray was obviously erroneous, the second defendant did not even allege that the outcome of the trial was likely affected by its admission, especially considering that other, independent evidence was presented that the second defendant was involved in fighting at the second defendant's public school. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018).

Admission of no contest plea not plain error.

- After the defendant was found guilty of driving under the influence of alcohol to the extent that the defendant was less safe to drive (DUI), the defendant could not show error, much less plain error, in the admission of evidence pertaining to the administrative license suspension (ALS) stipulation because the stipulation entered in the ALS hearing that the defendant would plead guilty to DUI in exchange for the return of the defendant's driver's license was relevant to, though certainly not dispositive of, the charge that the defendant was driving under the influence of alcohol, and its probative value was not substantially outweighed by its prejudicial effect. Adams v. State, 344 Ga. App. 159, 809 S.E.2d 87 (2017), aff'd, 306 Ga. 1, 829 S.E.2d 126 (2019).

Decision to use prior convictions improper.

- In a child molestation case, the trial court erred in denying the defendant's motion for new trial because it was an abuse of discretion to allow the prosecution to question the victim's mother listing the defendant's prior arrests for four offenses after the mother had already testified that the mother was aware of the defendant's prior arrests and that the arrets did not change the mother's opinion of the defendant's character; further, the admission of specific instances of conduct was not harmless as the victim's description of the defendant's improper conduct varied over time, and the appellate court could not say that the defendant's prior arrests did not enter into the jury's evaluation of the defendant's testimony and credibility. Gaskin v. State, 334 Ga. App. 758, 780 S.E.2d 426 (2015).

When the defendant was convicted of three counts of computer or electronic pornography and child exploitation, the trial court did not plainly err in admitting a retired police officer's testimony during the trial about the retired officer's investigation of an alleged similar transaction in 2008 because it was undisputed that the relevant videos and photographs from the 2008 investigation were destroyed when the hard drive used in that investigation crashed; there was no evidence that the state intentionally destroyed the videos and photographs in bad faith; and the admission of the retired officer's identification testimony did not affect the outcome of the trial as the evidence of the defendant's guilt was overwhelming. Patch v. State, 337 Ga. App. 233, 786 S.E.2d 882 (2016).

Admission of other crimes, wrongs, or acts did not constitute plain error.

- First defendant could not show plain error in the admission of the second defendant's prior conviction for burglary and possession of tools of a crime as the trial court gave a limiting instruction that the evidence was relevant only to the charges against the second defendant; and the fact that the conviction had been overturned did not preclude the conviction's admission. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, 2019 Ga. LEXIS 890 (Ga. 2019).

Informing jury that witnesses were held in contempt for failing to testify not plain error.

- Trial court did not plainly err by informing the jury that two witnesses were held in contempt for refusing to testify on behalf of the state because, even if the trial court's remarks did give rise to some suggestion that the witnesses would point to the defendant as the perpetrator in the shooting of the victim, that suggestion was not at odds with the defense at trial as the defendant did not point to another perpetrator but claimed that the victim was accidentally shot while tussling with the defendant. Wallace v. State, 303 Ga. 34, 810 S.E.2d 93 (2018).

Substance of the evidence apparent from the context.

- Although a drug distribution defendant failed to make an offer of proof as to the evidence regarding a detective's credibility that was excluded, the court found that the substance of the evidence was sufficiently apparent from the attorneys' discussion to preserve the defendant's argument for appellate review as permitted under O.C.G.A. § 24-1-103(a)(2). Williams v. State, 332 Ga. App. 546, 774 S.E.2d 126 (2015).

Affirmative waiver of error.

- When the defendant was found guilty of, inter alia, driving under the influence of alcohol to the extent that the defendant was less safe to drive, the defendant affirmatively waived any claim of error from the admission of the administrative license suspension agreement at the defendant's criminal trial, so there was no plain error. Adams v. State, 306 Ga. 1, 829 S.E.2d 126 (2019).

Under a plain error review, the trial court did not err by allowing the detective to give hearsay testimony, without objection, regarding the specific location at which the victim's purse was found as assuming a cognizable hearsay argument existed and the trial court erred, the defendant failed to show error affecting substantial rights considering an overwhelming evidence of guilt, including the defendant's admission of throwing the victim over the bridge into a creek where the victim drowned. Tyner v. State, 305 Ga. 326, 825 S.E.2d 129 (2019).

Comment by trial court not plain error.

- Trial court's statements regarding the location of the shooting did not improperly express the court's opinion about whether venue and the shooting had been proven and the defendant did not show plain error because the trial court framed the court's statement in terms of allegations and never mentioned the venue for the charge; and the defendant did not show that the court's statement orienting the prospective jurors to the case had any effect on the outcome of the defendant's trial as the state presented evidence that the victim was shot, including the surveillance recording showing the shooting and expert testimony from a medical examiner; and the prosecutor elicited undisputed testimony from several witnesses that the crimes occurred in Fulton County. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).

Admission of prior criminal activity to show involvement in criminal street gang.

- Trial court did not commit plain error by permitting the state to introduce evidence that the third defendant had been involved in prior criminal activity, including battery, theft of a vehicle, and disorderly conduct, for the limited purpose of showing the third defendant's involvement in a criminal street gang. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018).

Failure to play entire recording of police interview not plain error.

- Defendant did not show that the trial court plainly erred by not allowing the defendant to play the entire recording of a witness's police interview because the trial court allowed the defendant to play an additional segment of the recording to show that the witness's prior statements to the police might have been affected by medication; and the defendant did not identify any other specific statements in the portions of the recording that the state played for the jury which needed to be explained by playing the rest of the witness's interview. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).

Admitting evidence of witness's compensation not plain error.

- In a products liability case, the prejudicial effect of admitting evidence of a car manufacturer's CEO's compensation did not so dramatically outweigh its probative value that it required reversal of the jury verdict; the actions of the CEO in allegedly interfering with a government recall of the vehicle made the CEO's credibility and bias relevant. Chrysler Group, LLC v. Walden, 303 Ga. 358, 812 S.E.2d 244 (2018).

Exclusion of evidence of victim's gang membership not plain error.

- Trial court did not commit plain error by excluding evidence that the first victim was a member of a street gang because any such affiliation was irrelevant and had no connection to the shooting; and the defendant provided nothing to indicate that the motivation for the shooting, or anything related to the shooting for that matter, was related to street gang activity. Walton v. State, 303 Ga. 11, 810 S.E.2d 134 (2018).

Exclusion of alleged false accusation of child molestation.

- In the defendant's trial for child molestation arising out of viewing a pornographic video with the defendant's four-year-old daughter, the trial court did not err in refusing to allow the defendant to cross-examine the child's mother pursuant to O.C.G.A. § 24-6-608 regarding her own accusations of molestation against her stepfather, who had been acquitted, because the charges were not shown to be false. Further, any error was harmless. Douglas v. State, 340 Ga. App. 168, 796 S.E.2d 893 (2017).

Admission of rape shield evidence harmless error.

- In the defendant's trial for child molestation against three victims, the trial court erred in allowing the state to introduce evidence of one victim's prior sexual activity involving the victim's molestation of the victim's two step-sisters; this evidence was inadmissible under the Rape Shield Statute, O.C.G.A. § 24-4-412, even if introduced by the state for the purpose of showing the effects of the defendant's molestation on the victim. However, the error was harmless. White v. State, 305 Ga. 111, 823 S.E.2d 794 (2019).

Admission of nude photographs of mother in child custody case.

- Although the trial court erred in admitting into evidence the nude photographs of the parent as those pictures were irrelevant, and there was no evidence that the children were aware of or exposed to the photographs or the production of the photographs, the parent could not show that the parent suffered prejudice as a result of their admission because the trial court did not reference or otherwise rely on the photographs or the parent's conduct in making its factual findings in the child custody case. Mashburn v. Mashburn, 353 Ga. App. 31, 836 S.E.2d 131 (2019).

Harmless error when cumulative evidence admitted.

- Trial court did not abuse the court's discretion by admitting evidence from a witness that the defendant had put a hit out on the witness because the evidence was cumulative of other evidence and, thus, any error in the admission of the evidence was harmless. Anglin v. State, 302 Ga. 333, 806 S.E.2d 573 (2017).

In the defendant's trial for violating the defendant's oath of office as coroner and theft by deception, the admission of a death certificate of one of the nursing home patients whose death the defendant had falsely billed the county for investigating was harmless because it was cumulative of the pronouncement of death that was admitted as part of another exhibit. Fortner v. State, 350 Ga. App. 226, 828 S.E.2d 434 (2019).

Exclusion of forensic toxicologist evidence.

- In a malice murder case, the trial court did not commit plain error in excluding evidence from the forensic toxicologist regarding the drugs found in the victim's system because, given that the defendant offered no evidence to support the defendant's theory that the victim, the defendant's wife, died because drugs in the victim's system made the victim more susceptible to asphyxiation, the defendant could not show that there was a reasonable probability that, if the proffered testimony about drugs in the victim's system had been admitted, the outcome of the trial would have been more favorable to the defendant. Williams v. State, 302 Ga. 147, 805 S.E.2d 873 (2017).

Testimony regarding defendant's failure to contact police.

- In the defendant's murder and rape trial, admission of testimony about the defendant's failure to contact police after the victim's death despite the defendant admittedly having sex with the victim, arguing with the victim, and pushing the victim the night of the victim's death was not plain error because the defendant failed to point to clear controlling authority that admission of the testimony was a clear and obvious legal error. Simmons v. State, 299 Ga. 370, 788 S.E.2d 494 (2016).

Admission of detective's comment that "defendant was going to prison" was harmless error.

- Even assuming that the detective's comment that the detective thought the defendant was going to prison should have been redacted from the video recording of the defendant's interview by the police, its admission was harmless because, considering the strength of the properly admitted evidence of the defendant's guilt and the context of a police interview in which the defendant claimed that the defendant had nothing to do with the victim's death, the jury was highly unlikely to have been swayed by the detective's passing comment; and the jury could not have believed that the defendant had already been tried and convicted based on a statement made during a police interview played for the jury during the defendant's trial. Tanner v. State, 303 Ga. 203, 811 S.E.2d 316 (2018).

Detective's testimony not plain error.

- Detective's answers to the defendant's questions regarding the surveillance recording of the shooting did not violate the ultimate issue rule, and the defendant could not show harm because evidence of the defendant's guilt was compelling; and the defendant could not show that the complained-of comments likely affected the outcome of the defendant's trial as, although it might have been improper for the detective to share the detective's subjective belief that the defendant was the shooter seen on the surveillance recording with the jury explicitly, that the detective believed the defendant was the shooter seen on the surveillance recording would have come as no surprise to the jury. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).

Admission of other crimes, wrongs, or acts did not constitue plain error.

- In an armed robbery case, pretermitting whether admission of evidence of the defendant's prior armed robbery conviction amounted to clear or obvious error, the admission of that evidence did not constitute plain error that affected the defendant's substantial rights because the defendant testified and admitted that the defendant pled guilty to the prior charge; although the defendant claimed the defendant acted in self-defense, eyewitnesses testified that they saw no weapons on the victims, saw the defendant rifling the victims' pockets, and heard one of the victims pleading with the defendant not to kill the victim; and the evidence indicated that both victims were shot from behind, undermining the defendant's claim of self-defense. Nations v. State, 303 Ga. 221, 811 S.E.2d 292 (2018).

Reversible error occurred by admitting character evidence.

- Trial court committed reversible error by admitting character evidence and holding that the evidence was intrinsic to the alleged crimes of robbery as the defendant did not testify as to character and the character trait was not an essential element of a charge, claim, or defense; the text introduced a specific bad act, possible fraud, which was not allowed and the fact that the defendant may have attempted to defraud an apartment complex a week earlier did not arise out of the same transaction. Holt v. State, 352 Ga. App. 504, 835 S.E.2d 336 (2019).

It was not plain error for the trial court to admit evidence of the acts of molestation committed against the first victim in a trial for offenses against the second and third victims because all three were sisters, the sisters all disclosed the defendant's abuse to each other and tried to protect each other from the defendant, and the sisters jointly disclosed the abuse to their mother on more than one occasion. Vaughn v. State, 352 Ga. App. 32, 833 S.E.2d 723 (2019).

Harmless error in allowing state's demonstration.

- Even if the trial court abused the court's discretion in allowing the state's demonstration in which one of the prosecutors beat a punching bag at the direction of the detective 100 times (the number of blows the detective estimated the victim had received), any error was harmless as any effect the demonstration might have had on the jury would have been minimal compared to the effect of the properly-admitted evidence before the jury because the evidence of the defendant's guilt was overwhelming; the placement and extent of the victim's bruises were well-documented by the medical examiner's diagrams and multiple photographs; and the jury heard extensive medical and law enforcement testimony about the bruises. Williams v. State, 302 Ga. 147, 805 S.E.2d 873 (2017).

Admission of bribery evidence constituted harmless error.

- Improper admission of the testimony that the co-defendant's father attempted to influence the victim by bribing the victim into changing the victim's account of what took place was harmless because it was highly probable that the error did not contribute to the jury's verdict as, in addition to the victim's testimony, the state presented evidence that a witness overheard the defendant say that the defendant wanted to rob someone; party guests looked at a co-defendant's phone and saw text messages that referenced a plan to commit a robbery; the defendant was seen with the co-defendant at the party by multiple witnesses; the ATM machine photographed the co-defendant making withdrawals; and the defendant lied about the defendant's alibi. Belcher v. State, 344 Ga. App. 729, 812 S.E.2d 51 (2018).

Use of prior inconsistent statements did not constitute plain error.

- Defendant did not establish plain error because the recording of the witness's police interview was admitted to impeach the witness, not to bolster the detective; the defendant did not identify any admitted prior statements that were outside the scope of the witness's direct examination; the witness had some recollection of the relevant events; and, in light of the compelling evidence presented at trial, the defendant did not establish that the errors probably affected the outcome of the defendant's trial. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).

Statement of a co-defendant, who did not testify at trial, did not violate Bruton because the statement did not incriminate the defendant and, thus, the trial court did not err, much less plainly err, in admitting the statement as rather than implicate the defendant, the co-defendant instead refused to acknowledge having any information about who attacked and robbed the victim. Shelton v. State, 350 Ga. App. 774, 830 S.E.2d 335 (2019).

Admission of photographs.

- Admission of one photograph of a murder victim in life with the victim's spouse and grandchildren, as well as 15 photographs of the victim after the victim's death from being hit and dragged by the defendant's truck, was not plain error. Bozzie v. State, 302 Ga. 704, 808 S.E.2d 671 (2017).

Admission of mall surveillance video.

- Under plain error review, admission of mall surveillance video recordings was not in error because the state presented testimony of eyewitnesses to events to authenticate two mall surveillance video recordings. Moore v. State, 305 Ga. 251, 824 S.E.2d 377 (2019).

Admission of video recording from officers' body cameras was harmless error.

- After the defendant murdered the defendant's two infant daughters by drowning the children, the last four minutes of the second video-recording from the officer's body camera showing the officer's effort to revive one of the children was unfairly prejudicial based on the video's emotionally charged content; however, the error in admitting the evidence was harmless as the video-recordings played a minor role in both the state's case and the defendant's insanity defense; and there was no likelihood that the jury would have weighed the case differently had the trial court excluded that last portion of the second video-recording. Morgan v. State, 307 Ga. 889, 838 S.E.2d 878 (2020).

Admitting evidence of co-defendant's prior arrest was harmless.

- Given the evidence of the defendant's guilt, the appellate court held that it was highly probable that the trial court's error in admitting evidence of the co-defendant's prior arrest did not contribute to the verdict against the defendant. Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162 (2019).

Exclusion of evidence of victim's drug use.

- Trial court did not plainly err in granting the state's motion to exclude evidence of the victim's drug dealing and drug use as the jury heard testimony from multiple witnesses and the defendant that the victim tended toward violence and frequently directed that violence at the defendant; and, whether the victim's drug use exacerbated such violence would be of marginal value to a jury that was aware of the victim's violence toward the defendant. Thus, the trial court did not violate the defendant's right to present a full and fair defense by excluding evidence of the victim's drug use and related criminal history. Martin v. State, 306 Ga. 747, 833 S.E.2d 122 (2019).

Admission of other acts evidence in murder trial constittued harmless error.

- Trial court abused the court's discretion admitting 2005 shooting evidence of the appellant's firing a handgun, but that error was harmless in light of the array of other strong evidence demonstrating the appellant's guilt and considering it was an evidentiary error and not of constitutional dimensions; given the overall strength of the other evidence of the appellant's guilt, the Georgia Supreme Court held that it was highly probable that erroneously admitted evidence of the 2005 shooting did not contribute to the jury's verdict. Jackson v. State, 306 Ga. 69, 829 S.E.2d 142 (2019).

Waiver based on failure to object.

- Because the defendant's only objection to the messages on a social media website was that they were prejudicial and not probative, the defendant waived any objection that the messages were not properly authenticated; however, even if the defendant did not waive the authentication objection, the victim's mother properly authenticated the messages as the mother knew the defendant went by the name "Bucky Raw" because the mother had seen videos that the defendant had posted - and in which the defendant appeared - on another website using that alias; and the mother was able to discern the defendant's identity through the conversations the mother had with the defendant on the accounts that the mother and the mother's friend had set up. Cotton v. State, 297 Ga. 257, 773 S.E.2d 242 (2015).

Cited in Pyatt v. State, 298 Ga. 742, 784 S.E.2d 759 (2016); Anthony v. State, 298 Ga. 827, 785 S.E.2d 277 (2016); Jones v. State, 299 Ga. 40, 785 S.E.2d 886 (2016); Durden v. State, 299 Ga. 273, 787 S.E.2d 697 (2016); Amey v. State, 337 Ga. App. 480, 788 S.E.2d 80 (2016); Lupoe v. State, 300 Ga. 233, 794 S.E.2d 67 (2016); Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018); Mondragon v. State, 304 Ga. 843, 823 S.E.2d 276 (2019); Strother v. State, 305 Ga. 838, 828 S.E.2d 327 (2019); Brooks v. Lopez, 350 Ga. App. 390, 829 S.E.2d 470 (2019); Cade v. State, 351 Ga. App. 637, 832 S.E.2d 453 (2019); Varner v. State, 306 Ga. 726, 832 S.E.2d 792 (2019); Morgan v. State, 307 Ga. 889, 838 S.E.2d 878 (2020); State v. Hamilton, Ga. , 839 S.E.2d 560 (2020); Keller v. State, Ga. , 842 S.E.2d 22 (2020).

24-1-104. Preliminary questions.

  1. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b) of this Code section. In making its determination, the court shall not be bound by the rules of evidence except those with respect to privileges. Preliminary questions shall be resolved by a preponderance of the evidence standard.
  2. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
  3. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be conducted out of the hearing of the jury when the interests of justice require or when an accused is a witness and requests a hearing outside the presence of the jury.
  4. The accused shall not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the proceeding.
  5. This Code section shall not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

(Code 1981, §24-1-104, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Preliminary questions, Fed. R. Evid. 104.

Law reviews.

- For article, "Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence," see 63 Mercer L. Rev. 1 (2011). For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013). For annual survey of evidence law, see 67 Mercer L. Rev. 63 (2015).

JUDICIAL DECISIONS

Error in application of hearsay rules in determining material witness status.

- Trial court erred in applying the hearsay rules to exclude the appellant's proffered documents from the evidence the court considered in ruling on a motion for material witness certificates as to the Kentucky-based manufacturer of the breathalyzer because an exception under O.C.G.A. § 24-1-2(c)(1) applied. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

Application of rules of evidence.

- Under Georgia's new Evidence Code, unless a fact-finding proceeding involves one of the 12 situations enumerated in O.C.G.A. § 24-1-2(c) and (d), the rules of evidence fully apply; similarity to one or more of the enumerated situations is insufficient to limit the applicability of the evidence rules. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

Rules of evidence applicable to issuance of material witness certificate.

- Under O.C.G.A. § 24-1-2(b), the rules of evidence apply to a proceeding for issuance of a material witness certificate under the out-of-state witness act unless one of the exceptions in § 24-1-2(c) or (d) applies. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

Hearsay rule did not apply at hearing on motion to suppress.

- Roadblock approval form introduced into evidence at a hearing on a motion to suppress sobriety tests performed at a roadblock, which was signed by a state patrol corporal and which stated that the corporal served in a supervisory capacity and was authorized to establish roadblocks, along with the arresting trooper's testimony to the same effect, was sufficient to show that the corporal was authorized to set up the roadblock; the hearsay rule did not apply in a suppression hearing. Turner v. State, 352 Ga. App. 122, 833 S.E.2d 299 (2019).

Cited in Roberts v. Cmty. & S. Bank, 331 Ga. App. 364, 771 S.E.2d 68 (2015); Kemp v. State, 303 Ga. 385, 810 S.E.2d 515 (2018).

24-1-105. Limited admissibility.

When evidence which is admissible as to one party or for one purpose but which is not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

(Code 1981, §24-1-105, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Failure to request limiting instruction.

- With regard to the defendant's trial for armed robbery and possession of a firearm, the trial court did not commit plain error in failing to give the jury limiting instructions for evidence presented against the co-defendant concerning charges that were unique to the co-defendant because the defendant failed to make such a request. McNair v. State, 330 Ga. App. 478, 767 S.E.2d 290 (2014).

Cross references.

- Limiting evidence that is not admissible against other parties or for other purposes, Fed. R. Evid. 105.

24-1-106. Introduction of remaining portions of writings or recorded statements.

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which, in fairness, should be considered contemporaneously with the writing or recorded statement.

(Code 1981, §24-1-106, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

History of section.

- Former Code Section24-2-4, which contained comparable provisions to this Code section, as effective January 1, 2013, was derived from the decisions in Monroe v. Phillips, 64 Ga. 32 (1879); Dowling v. Feeley, 72 Ga. 557 (1884); and Jones v. Grantham, 80 Ga. 472, 5 S.E. 764 (1888).

Cross references.

- Remainder of or related writings or recorded statements, Fed. R. Evid. 106.

Administrative Rules and Regulations.

- Fire Safety Information to Be Furnished in Hotels, Motels, Dormitories, Apartments and Personal Care Homes, Official Compilation of the Rules and Regulations of the State of Georgia, Comptroller General, Safety Fire Commissioner, State Minimum Fire Safety Standards, Rule 120-3-3-.06.

Law reviews.

- For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5241, former Civil Code 1910, § 5830, former Code 1933, § 38-703, and former O.C.G.A. § 24-2-4 are included in the annotations for this Code section.

Brief of evidence.

- In the preparation of the brief of evidence after trial, only such portions of documents should be embraced therein as were actually read or considered at the trial. Crawford v. Roney, 126 Ga. 763, 55 S.E. 499 (1906) (decided under former Civil Code 1895, § 5241).

Violation of rule of completeness.

- Because the earlier exculpatory portions of the defendant's transcribed statement were relevant as to both whether the defendant committed the rape and whether the defendant's statement was voluntary, the trial court violated the rule of completeness and abused the court's discretion when the court excluded those earlier portions of that statement; however, the error was harmless because the admitted and improperly excluded evidence showed overwhelmingly that the defendant was guilty of rape, whether principally or as a party to the crime, rendering it highly probable that any error in failing to admit the earlier portions of the defendant's statement did not contribute to the jury's verdict. Morales v. State, 337 Ga. App. 614, 788 S.E.2d 535 (2016).

No violation of rule of completeness.

- State's introduction of a partial recording of a phone call that the defendant made to the defendant's mother did not violate the rule of completeness because the portion of the call in which the defendant told the mother about a potential plea offer was unrelated to the later conversation about the defendant's uncle, who was an eyewitness to the shooting. Jackson v. State, 301 Ga. 866, 804 S.E.2d 367 (2017).

Defendant did not show that the trial court plainly erred by not allowing the defendant to play the entire recording of a witness's police interview because the trial court allowed the defendant to play an additional segment of the recording to show that the witness's prior statements to the police might have been affected by medication; and the defendant did not identify any other specific statements in the portions of the recording that the state played for the jury which needed to be explained by playing the rest of the witness's interview. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).

Entry on back of deed.

- When the plaintiff relies on a deed coming from the plaintiff's own possession, the opposite party may without proof of the deed's execution, rely upon an endorsement, memorandum, or entry on the back of the deed. McBrayer v. Walker, 122 Ga. 245, 50 S.E. 95 (1905) (decided under former Civil Code 1895, § 5241).

Foreign state code.

- When one party offers a section of the code of another state as proof of the law of that state on a given subject, that party is not required to introduce all cognate sections. If there are other sections applicable the opposite party may offer those sections, but cannot complain that one's adversary has not done so. Southern Ry. v. Robertson, 7 Ga. App. 154, 66 S.E. 535 (1909) (decided under former Civil Code 1895, § 5241).

Real estate valuations.

- It would be a misconception of the principle invoked by the former statute to allow the several valuations as stated by the real estate board in a document together with their arguments and reasons therefor, to be introduced in evidence by the plaintiff merely because the plaintiff's witness on cross-examination had stated a single valuation from this paper, when the entire document was otherwise absolutely inadmissible as hearsay. City of Atlanta v. Atlanta Title & Trust Co., 45 Ga. App. 265, 164 S.E. 224 (1932) (decided under former Civil Code 1910, § 5830).

Victim's testimony.

- After the defense counsel was allowed to pursue the inconsistencies between a witness's trial testimony and the witness's statement to a detective, pursuant to former O.C.G.A. § 24-2-4, the state was entitled to rebut the defense's implication that a robber was not the defendant by reading the entire statement to the jury; consequently, the trial court did not err in allowing the detective to read part of a victim's statement to the jury. Houston v. State, 270 Ga. App. 456, 606 S.E.2d 883 (2004) (decided under former O.C.G.A. § 24-2-4).

Photos of victim.

- Trial court properly admitted one of three photographs of the victim's body which showed an exterior mark of strangulation as such was not overly gruesome and inflammatory; moreover, pre-incision photos of a victim which depicted the location and nature of the victim's wounds were admissible as both relevant and material. McWilliams v. State, 280 Ga. 724, 632 S.E.2d 127 (2006) (decided under former O.C.G.A. § 24-2-4).

Letters.

- Trial court did not err by refusing the defendant's request to admit only the portions of letters written by the codefendant that cast the codefendant in a bad light relative to the crimes and excluding other portions that described the defendant's role in the crimes as being more significant than the defendant had described in a custodial interview because the defendant was not permitted to admit portions of the letters for the purportedly-limited purpose of showing the codefendant's state of mind without waiving the defendant's objections to the state's introduction of the remainder of the letters. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010) (decided under former O.C.G.A. § 24-2-4).

Returned 911 call after emergency abated.

- At the defendant's trial for DUI and battery, the trial court did not err in excluding admission of the sheriff's return call to the homeowner, who then admitted that punching the defendant's spouse was accidental, as hearsay, because the emergency leading to the homeowner's two 911 calls had then abated, making the statement testimonial, and the homeowner had later died. Further, the defendant was acquitted of the battery charge. Danley v. State, 342 Ga. App. 61, 802 S.E.2d 851 (2017), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

Log sheet with handwritten intoxilyzer results admissible.

- Log sheet with handwritten intoxilyzer results was not excluded because the state had provided everything it had with regard to the intoxilyzer results and there was nothing left in the state's possession to complete that evidence; to the extent that the state failed to provide information in the detail provided on an intoxilyzer printout, those omissions went to the weight and not the admissibility of the intoxilyzer results. Cross-examination of the officer who administered the test would allow the defendant's counsel the opportunity to test the nature of the state's evidence, and the trial court indicated that the court would revisit the motion in limine admitting the log sheet should the state not offer the testimony of that officer. Jones v. State, 345 Ga. App. 14, 812 S.E.2d 337 (2018).

Mental health records.

- Trial counsel was not ineffective for failing to present available evidence corroborating the defendant's testimony about the defendant's mental health because trial counsel correctly recognized that under the rule of completeness, the state could have sought to admit portions of the medical records from prison, as well as medical records from other facilities, that were unfavorable to the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257 (2019).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, § 365. 29A Am. Jur. 2d, Evidence, § 1042.

C.J.S.

- 32A C.J.S., Evidence, §§ 1038, 1102 et seq.

CHAPTER 2 JUDICIAL NOTICE

Article 1 Adjudicative Facts.
Article 2 Legislative Facts; Ordinances or Resolutions.
Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011).

ARTICLE 1 ADJUDICATIVE FACTS

24-2-201. Judicial notice of adjudicative facts.

  1. This Code section governs only judicial notice of adjudicative facts.
  2. A judicially noticed fact shall be a fact which is not subject to reasonable dispute in that it is either:
    1. Generally known within the territorial jurisdiction of the court; or
    2. Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
  3. A court may take judicial notice, whether or not requested by a party.
  4. A court shall take judicial notice if requested by a party and provided with the necessary information.
  5. A party shall be entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, such request may be made after judicial notice has been taken.
  6. Judicial notice may be taken at any stage of the proceeding.
    1. In a civil proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed.
    2. In a criminal proceeding, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

(Code 1981, §24-2-201, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Taking of judicial notice of agency rules, § 50-13-8.

Judicial notice of adjudicative facts, Fed. R. Evid. 201.

Law reviews.

- For article on the 2011 enactment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For comment on Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949), see 12 Ga. B.J. 476 (1950).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1819, Cobb's 1851 Digest, p. 272, former Code 1863, §§ 3674, 3738, 3747, former Code 1868, §§ 3698, 3762, 3771, former Code 1873, §§ 3751, 3815, 3824, former Code 1882, §§ 3751, 3815, 3824, former Civil Code 1895, §§ 5148, 5210, 5231, former Civil Code 1910, §§ 5734, 5797, 5818, former Code 1933, § 38-112, and former O.C.G.A. § 24-1-4 are included in the annotations for this Code section.

Notice of intention to take judicial notice.

- If a trial court intends to take judicial notice of any fact, the court must first announce the court's intention to do so on the record and afford the parties an opportunity to be heard regarding whether judicial notice should be taken. Graves v. State, 269 Ga. 772, 504 S.E.2d 679 (1998), overruled on other grounds, Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000), reversing Graves v. State, 227 Ga. App. 628, 490 S.E.2d 111 (1997) (decided under former O.C.G.A. § 24-1-4).

Customs.

- To be judicially recognized, custom must be one about which there is and can be no dispute and which is known to all men. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955) (decided under former Code 1933, § 38-112).

Uncertified copies of pleadings and orders from other Georgia courts were not competent evidence to show that landlord, a Tennessee corporation, was an ousted mortgagor, out of possession and not in control of premises at the time of the incident. Commerce Properties, Inc. v. Linthicum, 209 Ga. App. 853, 434 S.E.2d 769 (1993) (decided under former O.C.G.A. § 24-1-4).

Matters of public knowledge.

- Court will take judicial cognizance of matters of common and public knowledge. McGraw v. State, 85 Ga. App. 857, 70 S.E.2d 141 (1952) (decided under former Code 1933, § 38-112).

Test of public knowledge is whether the fact is one of common, everyday knowledge that all persons of average intelligence are presumed to know, and whether it is certain and indisputable. Cole v. Cates, 110 Ga. App. 820, 140 S.E.2d 36 (1964) (decided under former Code 1933, § 38-112).

Judicial notice must be requested.

- Judicial notice being a dispensation of one party from producing evidence, it would seem that the party must, in point of form, make a request for it. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958) (decided under former Code 1933, § 38-112).

Cited in Sherman v. City of Atlanta, 317 Ga. 345, 730 S.E.2d 113 (2013); Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 799 S.E.2d 242 (2017); Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29, 813 S.E.2d 618 (2018).

Judicial Notice Proper

Judicial notice of federal summary judgment order.

- In a legal malpractice case based on the attorneys' representation in a 42 U.S.C. § 1983 action brought in federal court, the trial court properly took judicial notice of the federal district court's summary judgment order. The federal order was published in a case reporter and thus was "published by authority" under former O.C.G.A. § 24-1-4, and the very nature of the present action meant that all parties and the trial court necessarily had notice that the federal court's opinion would be relied upon. Kramer v. Yokely, 291 Ga. App. 375, 662 S.E.2d 208 (2008), cert. denied, 556 U.S. 1152, 129 S. Ct. 1671, 173 L. Ed. 2d 1037 (2009) (decided under former O.C.G.A. § 24-1-4).

Judicial notice was held proper in the following cases.

- See Davis v. Bank of Fulton, 31 Ga. 69 (1860) (bank charter) (decided under former Laws 1819, Cobb's 1851 Digest, p. 272); Abrams v. State, 121 Ga. 170, 48 S.E. 965 (1904) (who is a public officer; abbreviation constituting officer's official designation) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Towler v. Carithers, 4 Ga. App. 517, 61 S.E. 1132 (1908) (abbreviation for public officer's title) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); O'Connell v. State, 5 Ga. App. 234, 62 S.E. 1007 (1908) (what is an intoxicating beverage) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Whatley v. Virginia-Carolina Chem. Co., 31 Ga. App. 226, 120 S.E. 436 (1923) (crops not mature in May) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Skinner v. Stewart Plumbing Co., 42 Ga. App. 42, 155 S.E. 97 (1930) (recording of mortgages) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Marshall v. Walker, 47 Ga. App. 195, 170 S.E. 267 (1933) (public officers appointed by Governor) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Watkins v. Augusta Chronicle Publishing Co., 49 Ga. App. 43, 174 S.E. 199 (1934) (election dates) (decided under former Code 1933, § 38-112); Daniel v. Citizens & S. Nat'l Bank, 182 Ga. 384, 185 S.E. 696 (1936) (public officers commissioned by Governor; legality of suspending such officers) (decided under former Code 1933, § 38-112); Thacker v. Morris, 196 Ga. 167, 26 S.E.2d 329 (1943) (computation of time) (decided under former Code 1933, § 38-112); Steed v. State, 80 Ga. App. 360, 56 S.E.2d 171 (1949) (normal periods of gestation) (decided under former Code 1933, § 38-112); McGraw v. State, 85 Ga. App. 857, 70 S.E.2d 141 (1952) (primary physical laws) (decided under former Code 1933, § 38-112); Wright Contracting Co. v. Waller, 89 Ga. App. 827, 81 S.E.2d 541 (1954) (primary physical laws; holding power of automobile brakes) (decided under former Code 1933, § 38-112); Peggy Ann of Ga., Inc. v. Scoggins, 90 Ga. App. 18, 81 S.E.2d 859 (1954) (holding power of automobile brakes) (decided under former Code 1933, § 38-112); Jordon v. State, 212 Ga. 337, 92 S.E.2d 528 (1956) (land lots and location as shown in state survey) (decided under former Code 1933, § 38-112); McGowans v. Speed Oil Co., 94 Ga. App. 35, 93 S.E.2d 597 (1956) (corporate name and existence) (decided under former Code 1933, § 38-112); Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617, 94 S.E.2d 699 (1956) (public officers commissioned by Governor) (decided under former Code 1933, § 38-112); Daniels v. State, 95 Ga. App. 862, 99 S.E.2d 292 (1957) (definition of moonshine liquor) (decided under former Code 1933, § 38-112); Williams v. State, 96 Ga. App. 833, 101 S.E.2d 747 (1958) (highways approved by State Highway Board are public highways) (decided under former Code 1933, § 38-112); Browne v. Snipes, 97 Ga. App. 149, 102 S.E.2d 634 (1958) (dates and times) (decided under former Code 1933, § 38-112); Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484 (1961) (public officers commissioned by Governor) (decided under former Code 1933, § 38-112); Purcell v. Hill, 107 Ga. App. 85, 129 S.E.2d 341 (1962) (sunrise and sunset) (decided under former Code 1933, § 38-112); Clark v. Rich's, Inc., 114 Ga. App. 242, 150 S.E.2d 716 (1966) (customary department store hours) (decided under former Code 1933, § 38-112); Melton v. State, 149 Ga. App. 506, 254 S.E.2d 732 (1979) (currency denomination in circulation on certain date) (decided under former Code 1933, § 38-112); Price v. State, 155 Ga. App. 206, 270 S.E.2d 203 (1980) (state agency list of dangerous substances) (decided under former Code 1933, § 38-112).

Limited liability company and its individual members were properly held liable to a bank following their failure because there was ample undisputed evidence that the bank was the company's successor-in-interest under the credit line agreements as various documents allowed judicial notice (O.C.G.A. § 24-2-201(b)(2)) that the bank had acquired the company's assets. Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 765 S.E.2d 536 (2014).

Judicial Notice Improper

Judicial notice was taken.

- Judicial notice was taken of the deaths of the trial judge and the court reporter handling the case below, which, alone, satisfied O.C.G.A. § 50-2-21(b)(5). Triguero v. ABN AMRO Bank N.V., 273 Ga. App. 92, 614 S.E.2d 209 (2005) (decided under former O.C.G.A. § 24-1-4).

Pleadings in a related action.

- Trial court erred in failing to grant a client's request for a hearing on a former attorney's motion to dismiss claims for legal malpractice and intentional infliction of emotional distress because the trial court considered matters outside the pleadings. The trial court could not properly make factual findings based on the pleadings in the divorce action under former O.C.G.A. § 24-1-4 because such issues are a matter of proof that could not be judicially noticed. Fitzpatrick v. Harrison, 300 Ga. App. 672, 686 S.E.2d 322 (2009) (decided under former O.C.G.A. § 24-1-4).

Courts cannot judicially know whether or not a defendant has actually been convicted, unless that fact is verified by the answer of the magistrate. Rutland v. City of Dublin, 50 Ga. App. 242, 177 S.E. 819 (1934) (decided under former Code 1933, § 38-112).

Notice of intent to seek attorney's fees.

- Judicial notice could be taken that the exhibit purported to be a notice of intent to seek attorney's fees under O.C.G.A. § 13-1-11; however, judicial notice cannot be taken that the attached notice was, in fact, what it purported to be, because such issues are a matter of proof that cannot be judicially noticed. NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (1998) (decided under former O.C.G.A. § 24-1-4).

Judicial notice was held improper in the following cases.

- See Causey v. Swift & Co., 57 Ga. App. 604, 196 S.E. 228 (1938) (location of city streets and distances between streets) (decided under former Code 1933, § 38-112); Matheson v. Brady, 202 Ga. 500, 43 S.E.2d 703 (1947); Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75 (1953) (inclusion of a certain high school in the state school system) (decided under former Code 1933, § 38-112); Shirley v. Woods, 98 Ga. App. 111, 105 S.E.2d 399 (1958); Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600 (1999) (location of city street) (decided under former Code 1933, § 38-112);(meaning of yellow curb under traffic laws) (decided under former Code 1933, § 38-112);(standards of the National Pest Control Association) (decided under former O.C.G.A. § 24-1-4).

Unfiled depositions.

- Trial court was authorized by law to take judicial notice only of certain narrowly prescribed categories of information, none of which includes deposition testimony. Therefore, the trial court committed reversible error when the court based the court's conclusions on depositions never filed with the court during the proceedings. Buchanan v. City of Clayton, 180 Ga. App. 740, 350 S.E.2d 320 (1986) (decided under former O.C.G.A. § 24-1-4).

Building Code violation.

- In a negligence action, plaintiffs based their contention regarding the construction of a stairwell on a claimed violation of the Georgia State Building Code, in that there was no landing on the stairway as required by the Code for exit stairways. Since the only reference to the Code in the record, however, was its quotation in the brief submitted by the plaintiffs in opposition to a motion for summary judgment, such a quotation was not evidence, nor was such a rule or regulation a matter of which a court could take judicial notice. Joel Properties, Inc. v. Reed, 203 Ga. App. 257, 416 S.E.2d 570 (1992) (decided under former O.C.G.A. § 24-1-4).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, §§ 44, 117.

9A Am. Jur. Pleading and Practice Forms, Evidence, § 5.

C.J.S.

- 31 C.J.S., Evidence, § 6 et seq.

ALR.

- Judicial notice of the coincidence of the days of the week with the days of the month, 8 A.L.R. 63.

Effect of absence of seal from execution, 28 A.L.R. 936.

Judicial notice of banking customs or other matters relating to banks or trust companies, 89 A.L.R. 1336.

Judicial notice of municipal ordinances where action originates in a municipal court, 111 A.L.R. 959.

Distinction between judicial notice and judicial knowledge, 113 A.L.R. 258.

Presumption of regular passage of statute as affected by legislative records showing that bill was defeated, 119 A.L.R. 460.

Admissibility, upon issue of negligence, of evidence of custom or practice of others, 137 A.L.R. 611.

Propriety of instructions on matters of common knowledge, 144 A.L.R. 932.

Uniform Judicial Notice of Foreign Law Act, 23 A.L.R.2d 1437.

Reception of evidence to contradict or rebut matters judicially noticed, 45 A.L.R.2d 1169.

Blood grouping tests, 46 A.L.R.2d 1000.

Judicial notice of matters relating to public thoroughfares and parks, 48 A.L.R.2d 1102; 86 A.L.R.3d 484.

Judicial notice of diseases or similar conditions adversely affecting human beings, 72 A.L.R.2d 554.

Judicial notice of drivers' reaction time and of stopping distance of motor vehicles travelling at various speeds, 84 A.L.R.2d 979.

Choice of law in application of automobile guest statutes, 95 A.L.R.2d 12.

Judicial notice as to assessed valuations, 42 A.L.R.3d 1439.

Proof, by radar or other mechanical or electronic devices, of violation of speed regulations, 47 A.L.R.3d 822.

Admissibility of evidence of neutron activation analysis, 50 A.L.R.3d 117.

Judicial notice as to location of street address within particular political subdivision, 86 A.L.R.3d 484.

Emotional manifestations by victim or family of victim during criminal trial as ground for reversal, new trial, or mistrial, 31 A.L.R.4th 229.

Judicial notice of attorney customs and practices, 61 A.L.R.5th 707.

ARTICLE 2 LEGISLATIVE FACTS; ORDINANCES OR RESOLUTIONS

24-2-220. Judicial notice of legislative facts.

The existence and territorial extent of states and their forms of government; all symbols of nationality; the laws of nations; all laws and resolutions of the General Assembly and the journals of each branch thereof as published by authority; the laws of the United States and of the several states thereof as published by authority; the uniform rules of the courts; the administrative rules and regulations filed with the Secretary of State pursuant to Code Section 50-13-6; the general customs of merchants; the admiralty and maritime courts of the world and their seals; the political makeup and history of this state and the federal government as well as the local divisions of this state; the seals of the several departments of the government of the United States and of the several states of the union; and all similar matters of legislative fact shall be judicially recognized without the introduction of proof. Judicial notice of adjudicative facts shall be governed by Code Section 24-2-201.

(Code 1981, §24-2-220, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Law reviews.

- For article on the 2011 enactment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1819, Cobb's 1851 Digest, p. 272, former Code 1863, §§ 3674, 3738, 3747, former Code 1868, §§ 3698, 3762, 3771, former Code 1873, §§ 3751, 3815, 3824, former Code 1882, §§ 3751, 3815, 3824, former Civil Code 1895, §§ 5148, 5210, 5231, former Civil Code 1910, §§ 5734, 5797, 5818, former Code 1933, § 38-112, and former O.C.G.A. § 24-1-4 are included in the annotations for this Code section.

Presumption that law in force.

- When it appeared in the manner indicated by the former statute that a particular law had been of force in another state, until the contrary was shown it was presumed that such law was still of force. Seaboard Air-Line Ry. v. Phillips, 117 Ga. 98, 43 S.E. 494 (1903) (decided under former Civil Code 1895, §§ 5210, 5231).

Attention of court called to change in law.

- While the common law was presumed to be of force in most of the American states, if either party claimed that the former statute or common law obtaining in such state was different from the law laid down in the Code, the party must, by pleading, evidence, or a request to charge, call the attention of the court to such difference. Wells v. Gress, 118 Ga. 566, 45 S.E. 418 (1903) (decided under former Civil Code 1895, §§ 5148, 5210, 5231).

Three methods of proof of foreign laws have been recognized. One was by proof of witnesses, testifying as to their familiarity with the law in reference to a certain subject. A second method was by certified copy of the statute in question. Finally, the third method of proof was clearly authorized by which the former statutory provisions was judicial recognition. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S.E. 93 (1907) (decided under former Civil Code 1895, §§ 5148, 5210, 5231). Simms v. Southern Express Co., 38 Ga. 129 (1868) See also (decided under former law).

Notice of foreign law from nature of litigation.

- No issue of foreign law pertaining to sufficiency of long arm process service will arise during the course of litigation, unless the defendant timely raised such issue as prescribed by law. Thus, the defendant will always have actual knowledge when an issue of foreign law, pertaining to the adequacy of service of long arm process, will be litigated and will therefore have a reasonable opportunity to prepare for such litigation. Askari v. Dolat, 240 Ga. App. 633, 524 S.E.2d 310 (1999) (decided under former O.C.G.A. § 24-1-4).

Responsibility on party wishing to raise foreign law issue.

- Notice of intent was required to raise an issue of foreign law, to establish such law by compliance with statutory means, or cause a duty to be imposed on a court to judicially recognize any relevant, existing foreign law. Samay v. Som, 213 Ga. App. 812, 446 S.E.2d 230 (1994) (decided under former O.C.G.A. § 24-1-4); P.G.L. & C.C. Employees Credit Union v. Kimball, 221 Ga. App. 108, 470 S.E.2d 501 (1996); Askari v. Dolat, 240 Ga. App. 633, 524 S.E.2d 310 (1999) (decided under former O.C.G.A. § 24-1-4);(decided under former O.C.G.A. § 24-1-4).

Laws published by authority.

- Judicial cognizance of the laws of another state will be taken only when presented in some form that shows the law was "published by authority." Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949), later appeal, 207 Ga. 308, 61 S.E.2d 282 (1950) (decided under former Code 1933, § 38-112).

Under former O.C.G.A. § 24-1-4, a trial court had a duty to take judicial notice of foreign law if "published by authority," without introduction of any proof of that law. Meeker v. Eufaula Bank & Trust, 208 Ga. App. 702, 431 S.E.2d 475 (1993) (decided under former O.C.G.A. § 24-1-4).

Proof of authority.

- Volume of state laws, purporting on the title page to have been printed by order of the Governor, sufficiently shows publication by authority for purpose of judicial recognition of foreign state laws without proof. Hamilton v. Metropolitan Life Ins. Co., 71 Ga. App. 584, 32 S.E.2d 540 (1944) (decided under former Code 1933, § 38-112).

Law must be pled.

- Former statute did not dispense with the necessity of pleading a foreign law. On the contrary, this provision merely meant that when the public laws of a foreign state were published by that state's authority, the authenticity of its publications need not be shown by the introduction of proof of their genuineness, but will be judicially recognized by the courts without proof, and given the same effect as though its public laws were proved by the introduction in evidence of a duly certified copy thereof, properly authenticated under the great seal of that state. Savannah, Fla. & W. Ry. v. Evans, 121 Ga. 391, 49 S.E. 308 (1904) (decided under former Civil Code 1895, §§ 5148, 5210, 5231). Lane v. Harris, 16 Ga. 217 (1854) But see (decided under former law).

Municipal ordinances.

- In a trial before a municipal court, the recorder may take judicial notice of the ordinances of the city, defining offenses against the city, but neither the Supreme Court, nor any other court than the municipal court, can take judicial cognizance of a municipal ordinance. Slaughter v. City of La Grange, 60 Ga. App. 555, 4 S.E.2d 410 (1939) (decided under former Code 1933, § 38-112).

Superior and appellate courts do not take judicial notice of a municipal ordinance. Police Benevolent Ass'n v. Brown, 268 Ga. 26, 486 S.E.2d 28 (1997) (decided under former O.C.G.A. § 24-1-4).

Plaintiffs' argument that a city's procedures for allocating funds violated the city code could not be considered on appeal because the relevant ordinances were not properly made a part of the record, and courts could not take judicial notice of municipal ordinances. Bailey v. City of Atlanta, 296 Ga. App. 679, 675 S.E.2d 564 (2009) (decided under former O.C.G.A. § 24-1-4).

County ordinances.

- Court could not review the merits of a developer's arguments as to a county ordinance when there was no evidence in the record demonstrating that the ordinance was properly proven below. County ordinances constituted foreign law, and a court could not take judicial notice of those ordinances under former O.C.G.A. § 24-1-4. Prime Home Props., LLC v. Rockdale County Bd. of Health, 290 Ga. App. 698, 660 S.E.2d 44 (2008), cert. denied, No. S08C1330, 2008 Ga. LEXIS 685 (Ga. 2008) (decided under former O.C.G.A. § 24-1-4).

Judicial Notice Proper

Statutory provisions need not be set out in full.

- Courts are bound to take judicial cognizance of an Act of the General Assembly, and it is not essential that a pleader should set out an entire Act in the pleadings in order to insist upon some paragraph or provision of the Act. Heard v. Pittard, 210 Ga. 549, 81 S.E.2d 799 (1954) (decided under former Code 1933, § 38-112).

Tennessee "slip opinions" were not "published by authority" and were, therefore, not binding on the trial court, with or without introduction of proof. Swafford v. Globe Am. Cas. Co., 187 Ga. App. 730, 371 S.E.2d 180, cert. denied, 187 Ga. App. 909, 371 S.E.2d 180 (1988) (decided under former O.C.G.A. § 24-1-4).

Judicial notice was held proper in the following cases.

- See Ragland v. Barringer, 41 Ga. 114 (1870) (Governor's proclamation) (decided under former Code 1868, §§ 3698, 3762, 3771); Stafford v. Hightower, 68 Ga. 394 (1882) (federal court districts) (decided under former Code 1873, §§ 3751, 3815, 3824); Wells v. Gress, 118 Ga. 566, 45 S.E. 418 (1903) (foreign state statutes) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Jossey v. Brown, 119 Ga. 758, 47 S.E. 350 (1904) (judge's tenure of office) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Taylor v. State, 123 Ga. 133, 51 S.E. 326 (1905) (existence of county as corporate body) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S.E. 93 (1907) (foreign state statutes) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Central of Ga. Ry. v. Gwynes, 153 Ga. 606, 113 S.E. 183 (1922) (congressional Acts and presidential proclamations) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Southern Ry. v. Lee, 59 Ga. App. 316, 200 S.E. 569 (1938) (state statutes) (decided under former Code 1933, § 38-112); Decatur County v. Tampa Whsle. Liquor Co., 62 Ga. App. 716, 9 S.E.2d 701 (1940) (state statutes) (decided under former Code 1933, § 38-112); Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424 (1943) (county location and territory) (decided under former Code 1933, § 38-112); Leonard v. State ex rel. Lanier, 204 Ga. 465, 50 S.E.2d 212 (1948) (county legalization of alcoholic beverages) (decided under former Code 1933, § 38-112); Thigpen v. Town of Davisboro, 81 Ga. App. 610, 59 S.E.2d 522 (1950) (incorporation of town) (decided under former Code 1933, § 38-112); Dawson v. General Disct. Corp., 82 Ga. App. 29, 60 S.E.2d 653 (1950) (state agency seal) (decided under former Code 1933, § 38-112); Hubbard v. State, 208 Ga. 472, 67 S.E.2d 562 (1951) (county and municipal location) (decided under former Code 1933, § 38-112); Brown v. State, 87 Ga. App. 244, 73 S.E.2d 502 (1952) (county legalization of alcoholic beverages) (decided under former Code 1933, § 38-112); Peebles v. State, 96 Ga. App. 836, 101 S.E.2d 726 (1958) (county legalization of alcoholic beverages) (decided under former Code 1933, § 38-112); City of Carrollton v. Walker, 215 Ga. 505, 111 S.E.2d 79 (1959) (federal laws) (decided under former Code 1933, § 38-112); City of Atlanta v. Gower, 216 Ga. 368, 116 S.E.2d 738 (1960) (state statutes) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); South Am. Managers, Inc. v. Reeves, 220 Ga. 493, 140 S.E.2d 201 (1965) (court's records in case at bar) (decided under former Code 1933, § 38-112); Kelly v. Kelly, 115 Ga. App. 700, 155 S.E.2d 732 (1967) (foreign state statutes and court cases) (decided under former Code 1933, § 38-112); Dye v. State, 118 Ga. App. 570, 165 S.E.2d 183 (1968) (county legalization of alcoholic beverages) (decided under former Code 1933, § 38-112); Irwin v. Busbee, 241 Ga. 567, 247 S.E.2d 103 (1978) (incumbent holding office on certain date) (decided under former Code 1933, § 38-112); Thompson v. Cheatham, 244 Ga. 117, 259 S.E.2d 62 (1979) (state statutes; organization and terms of court) (decided under former Code 1933, § 38-112); Brown v. Citizens & S. Nat'l Bank, 245 Ga. 515, 265 S.E.2d 791 (1980) (court records in case at bar) (decided under former Code 1933, § 38-112); In re G.G., 177 Ga. App. 639, 341 S.E.2d 13 (1986) (county of location of incorporated city) (decided under former O.C.G.A. § 24-1-4); Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600 (1999) (rules and regulations of the Georgia Department of Argiculture, Pest Control Commission) (decided under former O.C.G.A. § 24-1-4); Enchanted Valley RV Resort, Ltd. v. Weese, 241 Ga. App. 415, 526 S.E.2d 124 (1999) (rules and regulations of the Department of Human Resources) (decided under former O.C.G.A. § 24-1-4).

Judicial Notice Improper

In pleading the statute of a foreign state, it is not necessary that it should be set forth in haec verba, but the substance of those portions that are relied on should be stated with sufficient distinctness to enable the court to judge the meaning and effect of the law. Rodale v. Grimes, 211 Ga. 50, 84 S.E.2d 68 (1954) (decided under former Code 1933, § 38-112).

Judicial notice was held improper in the following cases.

- See Clifton v. State, 53 Ga. 241 (1874) (previous proceedings before court); Crouch v. Fisher, 43 Ga. App. 484, 159 S.E. 746 (1931); Livingston v. Schneer's Atlanta, Inc., 61 Ga. App. 637, 7 S.E.2d 190 (1940) (adoption of agency rules pursuant to statute) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949); 207 Ga. 308, 61 S.E.2d 282 (1950) (municipal ordinance not pled) (decided under former Code 1933, § 38-112); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 76 S.E.2d 536 (1953); Rodale v. Grimes, 211 Ga. 50, 84 S.E.2d 68 (1954), later appeal, Davis v. General Gas Corp., 106 Ga. App. 317, 126 S.E.2d 820 (1962) (foreign state statutes; foreign state cases reported in an unofficial publication) (decided under former Code 1933, § 38-112); Leger v. Ken Edwards Enters., Inc., 223 Ga. 536, 156 S.E.2d 651 (1967); Staggers v. State, 119 Ga. App. 85, 166 S.E.2d 411 (1969) (rules and regulations of state agency) (decided under former Code 1933, § 38-112); Lackey v. DeKalb County, 156 Ga. App. 309, 274 S.E.2d 705 (1980); In re G.G., 177 Ga. App. 639, 341 S.E.2d 13 (1986) (foreign state statutes) (decided under former Code 1933, § 38-112);(state agency regulations) (decided under former Code 1933, § 38-112);(city or county ordinances) (decided under former Code 1933, § 38-112);(state agency, municipal, or private agency rules or regulations affecting start of school year) (decided under former Code 1933, § 38-112);(local practice rules) (decided under former Code 1933, § 38-112);(county of location of incorporated city) (decided under former O.C.G.A. § 24-1-4).

Trial court was not authorized to take judicial notice of the judgment in a federal suit since it was material not included in the actual court record and the error was not harmless because, without admitting into evidence the duly certified copies of the prior judgment, the defendants could not establish that collateral estoppel barred the plaintiff's wrongful foreclosure suit. Garner v. US Bank Nat'l Ass'n, 329 Ga. App. 86, 763 S.E.2d 748 (2014).

City ordinance.

- In an appeal from the denial of a subdivision application, the trial court could not take judicial notice of city ordinances; city ordinances have to be alleged and proven. City of St. Marys v. Fulford, 286 Ga. App. 506, 649 S.E.2d 807 (2007) (decided under former O.C.G.A. § 24-1-1).

Venue.

- Prerequisites for judicial notice of venue were not satisfied by reference to ambiguous Uniform Traffic Citations. Graves v. State, 269 Ga. 772, 504 S.E.2d 679 (1998), overruled on other grounds, Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000), reversing Graves v. State, 227 Ga. App. 628, 490 S.E.2d 111 (1997) (decided under former O.C.G.A. § 24-1-1).

24-2-221. Judicial notice of ordinance or resolution.

When certified by a public officer, clerk, or keeper of county or municipal records in this state in a manner as specified for county records in Code Section 24-9-920 or in a manner as specified for municipal records in paragraph (1) or (2) of Code Section 24-9-902 and in the absence of contrary evidence, judicial notice may be taken of a certified copy of any ordinance or resolution included within a general codification required by paragraph (1) of subsection (b) of Code Section 36-80-19 as representing an ordinance or resolution duly approved by the governing authority and currently in force as presented. Any such certified copy shall be self-authenticating and shall be admissible as prima-facie proof of any such ordinance or resolution before any court or administrative body.

(Code 1981, §24-2-221, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Law reviews.

- For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For article on the 2011 enactment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-112, and former O.C.G.A. § 24-1-4 are included in the annotations for this Code section.

Judicial notice was held improper in the following cases.

- See Livingston v. Schneer's Atlanta, Inc., 61 Ga. App. 637, 7 S.E.2d 190 (1940) (municipal ordinance not pled) (decided under former Code 1933, § 38-112); Leger v. Ken Edwards Enters., Inc., 223 Ga. 536, 156 S.E.2d 651 (1967);(city or county ordinances) (decided under former Code 1933, § 38-112).

City ordinance.

- In an appeal from the denial of a subdivision application, the trial court could not take judicial notice of city ordinances; city ordinances have to be alleged and proven. City of St. Marys v. Fulford, 286 Ga. App. 506, 649 S.E.2d 807 (2007) (decided under former O.C.G.A. § 24-1-1).

Cited in Edwards v. City of Warner Robins, 302 Ga. 381, 807 S.E.2d 438 (2017).

CHAPTER 3 PAROL EVIDENCE

Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 enactment of this chapter, see 28 Ga. St. U.L. Rev. 1 (2011).

24-3-1. Parol evidence contradicting writing inadmissible generally.

Parol contemporaneous evidence shall be generally inadmissible to contradict or vary the terms of a valid written instrument.

(Code 1981, §24-3-1, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Law reviews.

- For article, "The Parol Evidence Rule in Georgia," see 17 Ga. B.J. 49 (1954). For article discussing the advantages of contract rescission as a remedy for fraud, with respect to the parol evidence rule and the statute of frauds, in light of City Dodge, Inc. v. Gardner, 232 Ga. 766, 208 S.E.2d 794 (1974), see 11 Ga. St. B.J. 172 (1975). For article discussing parol evidence in the law of commercial paper, see 13 Ga. L. Rev. 53 (1978). For article, "Supplementing Written Agreements: Restating the Parol Evidence Rule in Terms of Credibility and Relative Fault," see 34 Emory L.J. 93 (1985).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3723, former Code 1868, § 3747, former Code 1873, § 3800, former Code 1882, § 3800, former Civil Code 1895, § 5201, former Civil Code 1910, § 5788, former Code 1933, § 38-501, and former O.C.G.A. § 24-6-1 are included in the annotations for this Code section.

Purpose of the rule that the terms of a valid written agreement which is complete and the terms of which are not ambiguous cannot be contradicted, added to, altered, or varied by parol agreements is to establish the finality of written contracts. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936) (decided under former Code 1933, § 38-501).

Parol evidence rule is matter of substantive law and no amount of oral testimony contradicting the legal consequence of a written instrument can avail to destroy or weaken that legal consequence. Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944) (decided under former Code 1933, § 38-501); Almon v. R.H. Macy & Co., 106 Ga. App. 123, 126 S.E.2d 641 (1962);(decided under former Code 1933, § 38-501).

Parol evidence cannot add to, take from, or vary writing itself. Buice Grading & Pipeline, Inc. v. Bales, 187 Ga. App. 263, 370 S.E.2d 26 (1988) (decided under former O.C.G.A. § 24-6-1); Price v. Age, Ltd., 194 Ga. App. 141, 390 S.E.2d 242 (1990);(decided under former O.C.G.A. § 24-6-1).

Parol evidence rule should not be relaxed. Howard & Soule v. Stephens, 52 Ga. 448 (1874) (decided under former Code 1882, § 3800).

Test for admissibility of oral agreement.

- Test to determine whether an oral agreement is one which the law will permit to be plead and proved is whether the oral agreement constitutes a part of the written contract or whether, instead, it is a separate and distinct oral contract which is not inconsistent with the written contract. If the latter, it admits of pleading and proof. S. & S. Bldrs., Inc. v. Equitable Inv. Corp., 219 Ga. 557, 134 S.E.2d 777 (1964) (decided under former Code 1933, § 38-501); Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977);(decided under former Code 1933, § 38-501).

Court will not ignore clear language of written contract between the parties to enforce an alleged oral contract in contradiction thereto. Johnson v. Ford Motor Credit Co., 142 Ga. App. 547, 236 S.E.2d 527 (1977) (decided under former Code 1933, § 38-501).

Oral agreement that contradicts written agreement inadmissible.

- Evidence that attorney verbally agreed to keep fees at the low end of the range specified in the attorney's written agreement with plaintiff and to complete the project within two weeks was inadmissible since that evidence contradicted the parties written agreement. Schluter v. Perrie, Buker, Stagg & Jones, 230 Ga. App. 776, 498 S.E.2d 543 (1998) (decided under former O.C.G.A. § 24-6-1).

All previous negotiations are merged in the subsequent written contract. Freeman v. Bass, 34 Ga. 355, 89 Am. Dec. 255 (1866) (decided under former Code 1863, § 3723); Roberts v. Investors' Sav. Co., 154 Ga. 45, 113 S.E. 398 (1922); Wynn v. First Nat'l Bank, 176 Ga. 218, 167 S.E. 513 (1933) (decided under former Civil Code 1910, § 5788); Allison v. United Small-Loan Corp., 54 Ga. App. 820, 189 S.E. 263 (1936); Thompson v. Riggs, 193 Ga. 632, 19 S.E.2d 299 (1942) (decided under former Civil Code 1910, § 5788); Heisley v. Allied Am. Mut. Fire Ins. Co., 71 Ga. App. 107, 30 S.E.2d 285 (1944); Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944) (decided under former Code 1933, § 38-501); Thompson v. Arrington, 209 Ga. 343, 72 S.E.2d 293 (1952); Simmons v. Wooten, 241 Ga. 518, 246 S.E.2d 639 (1978) (decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).

Evidence admitted without objection.

- Parol evidence as to the terms of the agreement, and as to statements of the defendant made previously to the execution of the paper was ineffectual to vary the terms of the written instrument, even though admitted without objection. Cleghorn v. Shields, 165 Ga. 362, 141 S.E. 55 (1927) (decided under former Civil Code 1910, § 5788).

Determination of timeliness of objection to parol evidence was unnecessary, since parol evidence, by its nature, was incompetent and without probative value to alter the terms or conditions of a written contract. Lyon v. Patterson, 138 Ga. App. 816, 227 S.E.2d 423 (1976) (decided under former Code 1933, § 38-501).

Uncertainty in contract.

- There can be no admission of parol evidence unless and until an application of the pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represent the true intention of the parties. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945) (decided under former Code 1933, § 38-501).

Violation of parol agreement not fraud.

- Making and violating a contemporaneous parol agreement if inconsistent with the writing would not be such fraud as would permit a varying of the written instrument, even if plead as fraud, no sufficient reason appearing why the agreement was not incorporated in the writing. Bowen v. Swift & Co., 52 Ga. App. 793, 184 S.E. 625 (1936) (decided under former Code 1933, § 38-501).

Invoices.

- Invoice for goods delivered on open account was not "a valid written instrument" as that term was used in former O.C.G.A. § 24-6-1. Wheeler v. IDN-Armstrong's, Inc., 288 Ga. App. 253, 653 S.E.2d 835 (2007) (decided under former O.C.G.A. § 24-6-1).

Jury question.

- It is for the jury to decide whether an independent collateral oral agreement was made and, if so, whether the oral agreement was part of the inducement to the written agreement. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977) (decided under former Code 1933, § 38-501).

Attempt to invoke rule on appeal.

- When a party who was entitled to the benefit of the rule prohibiting the admission of parol evidence to vary or contradict a writing waived the benefit thereof by allowing such evidence to be received without objection and without any effort to have the evidence stricken and disregarded by the trial judge or the jury, the party cannot, after the trial terminated and the case had been decided against the party, invoke the parol evidence rule in order to obtain a reversal of such verdict and judgment in the appellate court. Southern Envelope Co. v. Adamson Printing Co., 51 Ga. App. 475, 180 S.E. 770 (1935) (decided under former Code 1933, § 38-501); Commercial Credit Co. v. Lewis, 59 Ga. App. 144, 200 S.E. 566 (1938);(decided under former Code 1933, § 38-501).

Cited in Thomas v. Emory Clinic, Inc., 321 Ga. App. 457, 739 S.E.2d 138 (2013); Bates v. State, 322 Ga. App. 319, 744 S.E.2d 841 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); Wilson v. State, 295 Ga. 84, 757 S.E.2d 825 (2014); Crop Production Services, Inc. v. Moye, 345 Ga. App. 228, 812 S.E.2d 565 (2018).

Evidence Inadmissible

1. In General

Prior and contemporaneous statements or agreements cannot be shown to vary, contradict, or change the terms of a valid written contract purporting on the contract's face to contain all the terms of an agreement between the parties. Campbell v. Alkahest Lyceum Sys., 10 Ga. App. 839, 74 S.E. 443 (1912) (decided under former Civil Code 1910, § 5788); Roberts v. Investors' Sav. Co., 154 Ga. 45, 113 S.E. 398 (1922); Eaves v. Georgian Co., 47 Ga. App. 37, 169 S.E. 519 (1933) (decided under former Civil Code 1910, § 5788); Hardin v. Atlanta Gas Light Co., 71 Ga. App. 63, 30 S.E.2d 121 (1944); Owensby v. Byrd, 75 Ga. App. 729, 44 S.E.2d 452 (1947) (decided under former Civil Code 1910, § 5788); Cone Mills Corp. v. A.G. Estes, Inc., 399 F. Supp. 938 (N.D. Ga. 1975); Lewis v. Citizens & S. Nat'l Bank, 139 Ga. App. 855, 229 S.E.2d 765 (1976) (decided under former Code 1933, § 38-501); Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).

When the contract was complete on the contract's face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, parol evidence should not be admitted. American Cyanamid Co. v. Ring, 248 Ga. 673, 286 S.E.2d 1 (1982) (decided under former O.C.G.A. § 24-6-1).

In absence of fraud, accident, or mistake, parol evidence is not admissible to vary an unambiguous written agreement. Freeman v. Bass, 34 Ga. 355, 89 Am. Dec. 255 (1866) (decided under former Code 1863, § 3723); Roberts v. Investors' Sav. Co., 154 Ga. 45, 113 S.E. 398 (1922); Holloway v. Brown, 171 Ga. 481, 155 S.E. 917 (1930) (decided under former Civil Code 1910, § 5788); Long v. Sullivan, 52 Ga. App. 318, 183 S.E. 71 (1935); Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944) (decided under former Civil Code 1910, § 5788); Gilleland v. Welch, 199 Ga. 341, 34 S.E.2d 517 (1945); McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945) (decided under former Code 1933, § 38-501); Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971); Vulcan Materials Co. v. Douglas, 131 Ga. App. 21, 205 S.E.2d 84 (1974) (decided under former Code 1933, § 38-501); Wilson v. Sheppard, 136 Ga. App. 475, 221 S.E.2d 671 (1975); C.P.D. Chem. Co. v. National Car Rental Sys., 148 Ga. App. 756, 252 S.E.2d 665 (1979) (decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).

Parol evidence inadmissible even to establish fraud.

- Parol evidence was not admissible to vary the terms of a binding written agreement, even to establish fraud. Cosby v. A.M. Smyre Mfg. Co., 158 Ga. App. 587, 281 S.E.2d 332 (1981) (decided under former Code 1933, § 38-501).

Oral representations made as inducements to the contract are inadmissible to add to, take from, or vary a written contract. Pepsico Truck Rental, Inc. v. Eastern Foods, Inc., 145 Ga. App. 410, 243 S.E.2d 662 (1978) (decided under former Code 1933, § 38-501).

Different consideration.

- As a general rule, the consideration of a contract is open to inquiry as between the original parties, but if the consideration be so stated in the contract as to make it one of the contract's terms or conditions, as when the consideration consists of mutual promises expressed in the contract, a different consideration, whether variant or additional, cannot be shown by parol. Lynchburg Shoe Co. v. Daniel, 23 Ga. App. 186, 98 S.E. 107 (1919) (decided under former Civil Code 1910, § 5788); Georgia Cas. Co. v. Dixie Trust & Sec. Co., 23 Ga. App. 447, 98 S.E. 414 (1919); Ramsey-Fender Motor Co. v. Chapman, 46 Ga. App. 385, 168 S.E. 92 (1932) (decided under former Civil Code 1910, § 5788); Phillips v. Phillips, 46 Ga. App. 838, 169 S.E. 537 (1933);(decided under former Civil Code 1910, § 5788);(decided under former Civil Code 1910, § 5788).

Party cannot engraft new condition under guise of inquiring into consideration.

- Although it was permissible to inquire into consideration when the principles of justice require it, one of the parties to a contract cannot, under the guise of inquiring into consideration, engraft upon the contract a new condition which imposed an additional affirmative obligation upon the other party. Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981) (decided under former Code 1933, § 38-501).

Inquiry into consideration to vary terms of contract.

- When in some instances parol evidence that the real consideration of a contract was different from the one actually recited in the instrument was admissible for the purpose of proving that the true consideration has failed, it was never allowable, under the guise of inquiring into the consideration, to vary or contradict by parol the substance and meaning of the written terms of the contract itself. Lynchburg Shoe Co. v. Daniel, 23 Ga. App. 186, 98 S.E. 107 (1919) (decided under former Civil Code 1910, § 5788); Middlebrooks v. Dunlap-Huckabee Auto Co., 44 Ga. App. 543, 162 S.E. 153 (1932); Phillips v. Phillips, 46 Ga. App. 838, 169 S.E. 537 (1933) (decided under former Civil Code 1910, § 5788); Tyre v. Price, 52 Ga. App. 526, 183 S.E. 843 (1936); Redfearn v. Citizens & S. Nat'l Bank, 122 Ga. App. 282, 176 S.E.2d 627 (1970) (decided under former Civil Code 1910, § 5788); Zorn v. Robertson, 237 Ga. 395, 228 S.E.2d 804 (1976);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).

Proof of different contract.

- Entirely different contract from that evidenced by a writing cannot be pled or proved by parol as a substitute for that embodied in such writing. Branan v. Warfield & Lee, 3 Ga. App. 586, 60 S.E. 325 (1908) (decided under former Civil Code 1895, § 5201).

2. Notes

Admission to vary promissory note.

- In absence of fraud, accident, or mistake, parol evidence is not admissible to vary or contradict express terms of a promissory note. Tyson v. Henson, 159 Ga. App. 684, 285 S.E.2d 27 (1981) (decided under former O.C.G.A. § 24-6-1).

With respect to an unambiguous promissory note, in the absence of fraud, accident, or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note. Citizens & S. Trust Co. v. Johnson, 201 Ga. App. 464, 411 S.E.2d 543 (1991) (decided under former O.C.G.A. § 24-6-1).

Showing note to be conditional.

- In an action upon an unconditional promissory note, evidence of a contemporaneous parol agreement that the note was not to be paid except upon the happening of a certain event was inadmissible in the absence of evidence tending to show that the agreement was omitted from the note by accident, fraud, or mistake. Probasco v. Shaw, 144 Ga. 416, 87 S.E. 466 (1915) (decided under former Civil Code 1910, § 5788); Cairo Banking Co. v. Hall, 42 Ga. App. 785, 157 S.E. 346 (1931); Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797 (1941) (decided under former Civil Code 1910, § 5788); Mooney v. Boyd, 86 Ga. App. 369, 71 S.E.2d 685 (1952); Knight v. William Summerlin Co., 119 Ga. App. 575, 168 S.E.2d 179 (1969) (decided under former Code 1933, § 38-501); Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971); First Nat'l Bank v. Harrison, 408 F. Supp. 137 (N.D. Ga. 1975) (decided under former Code 1933, § 38-501); 529 F.2d 1350 (5th Cir. 1976); Hyman v. Horwitz, 148 Ga. App. 647, 252 S.E.2d 74 (1978) (decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);aff'd,(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).

Showing a want or failure of consideration.

- When the consideration underlying a note was at issue, the maker of the note had the right to show by parol a want or failure of consideration. Beasley v. Paul, 223 Ga. App. 706, 478 S.E.2d 899 (1996) (decided under former O.C.G.A. § 24-6-1).

Variance in time of payment.

- Parol evidence was inadmissible to vary the terms of payment or the date of the maturity of a promissory note, or to engraft upon the note a provision for an extension of time. Crooker v. Hamilton, 3 Ga. App. 190, 59 S.E. 722 (1907) (decided under former Civil Code 1895, § 5201); Wilder v. Federal Land Bank, 176 Ga. 813, 169 S.E. 13 (1933);(decided under former Civil Code 1910, § 5788).

Showing that note would not be enforced.

- An unconditional promise to pay could not be defeated by proof of a contemporaneous oral agreement that it would never be enforced. Pulliam v. Merchants & Miners State Bank, 33 Ga. App. 68, 125 S.E. 509 (1924) (decided under former Civil Code 1910, § 5788); Cohan v. Flanders, 315 F. Supp. 1046 (S.D. Ga. 1970);(decided under former Code 1933, § 38-501).

Note not to be paid in money.

- Note in which it was stipulated that a certain sum would be paid meant that this sum will be paid in money, and the maker would not be heard to plead or prove that there was a parol agreement by which the note was to be satisfied with something else than money. Kerr v. Holder, 13 Ga. App. 9, 78 S.E. 682 (1913) (decided under former Civil Code 1910, § 5788); Cole v. Bank of Bowersville, 31 Ga. App. 435, 120 S.E. 790 (1923);(decided under former Civil Code 1910, § 5788).

Express warranty.

- When a promissory note was given for purchase money, which was unambiguous and unconditional, and contained no warranty of soundness, no express warranty could be added to the note by parol. Fleming v. Satterfield, 4 Ga. App. 351, 61 S.E. 518 (1908) (decided under former Civil Code 1895, § 5201).

Additional warranty.

- Purchaser of an article, who accepted a note for the price of the article, and therein gave a limited warranty, and stipulated not to exact anything beyond, would not be allowed to prove by parol another representation or warranty of the seller, unless upon the ground of fraud. Commercial Credit Co. v. Lewis, 59 Ga. App. 144, 200 S.E. 566 (1938) (decided under former Code 1933, § 38-501).

Obligation conditioned on additional security.

- "Parol contemporaneous evidence was inadmissible generally to contradict or vary the terms of a valid written instrument," thus, when an unconditional promissory note was signed by two persons, while it was permissible for one of them to show that one was a mere surety, it was not permissible to alter the unconditional character of the obligation by setting up a prior or contemporaneous parol agreement to the effect that the obligation was conditional upon the payees taking a mortgage upon personalty from the principal debtor as additional security. Bowen v. Mobley, 40 Ga. App. 833, 151 S.E. 667 (1930) (decided under former Civil Code 1910, § 5788).

Claim only in rem.

- In a suit on a promissory note secured by a deed to land, it was not permissible for the maker to set up by way of plea and answer that by executing the two instruments together the payee agreed to look solely to the land for repayment of the debt due, and the maker of the note was not to be under any personal obligation, and no personal judgment could be procured against the maker, but only a judgment in rem against the property could be had for such an interpretation would be to vary by parol the plain terms of a written instrument by which the maker agreed to pay a stated sum on a certain day. Skeffington v. Rowland, 52 Ga. App. 619, 184 S.E. 330 (1936) (decided under former Code 1933, § 38-501).

Existence of prior cause of action.

- In a suit by a payee against the maker of a promissory note reciting that the note was given "for value received," a contemporaneous parol agreement cannot be engrafted thereon by the defendant by testimony to the effect that while the defendant, at the time of executing the note, actually received from the plaintiff the principal sum thereof, yet the defendant had a prior cause of action against the plaintiff and the note was to be set up against the demand of the defendant against the plaintiff in this case, and so understood at the time of the execution and delivery of the note. Dunson & Bros. Co. v. Smith Seed Co., 26 Ga. App. 585, 106 S.E. 914 (1921) (decided under former Civil Code 1910, § 5788).

Memorandum written at bottom of note.

- Parol evidence was inadmissible to vary or contradict an unambiguous contract in writing so as to include a memorandum written upon the bottom of one note showing the note to be collateral, and this memorandum cannot by parol be included in (nor can this stipulation in itself include) another note of a prior date when in such prior note no such words appear. Buffington v. Bank of College Park, 157 Ga. 570, 122 S.E. 50 (1924) (decided under former Civil Code 1910, § 5788).

3. Real Estate Transactions

Additional conditions.

- When expressed only by way of recital, parol evidence was admissible to show that the true consideration of the deed was in fact different from the one stated merely by way of recital. However, one of the parties to a deed cannot, under the guise of inquiring into the deed's consideration, engraft upon the instrument a new condition or covenant which imposed an additional affirmative obligation upon the other party. Awtrey v. Awtrey, 225 Ga. 666, 171 S.E.2d 126 (1969) (decided under former Code 1933, § 38-501).

Answer at variance with deed.

- Allegations of the defendant's answer, setting up an understanding at variance with the terms of the deed executed by the plaintiff to the defendant, should have been stricken. Groover v. Simmons, 152 Ga. 423, 110 S.E. 179 (1921) (decided under former Civil Code 1910, § 5788).

House not included in deed.

- When there was a conveyance of land by deed, containing no reservations as to the buildings, a parol understanding that the vendor retains the ownership of the houses, with the right to enter and remove the houses, was certainly inconsistent with the deed and ought to be excluded from evidence. Simpson v. Tate, 226 Ga. 558, 176 S.E.2d 62 (1970) (decided under former Code 1933, § 38-501).

Obligation to sell adjoining tract.

- When one of the parties to a contract involving a purchase and sale of land executed and delivered to the other a deed conveying a described tract of land for a named sum of money, a contemporaneous oral agreement obligating the grantee in the deed to purchase, at the option of the grantor and during the grantor's lifetime, an adjoining tract of land for an additional sum of money will not be enforced if it appears that the deed and the oral agreement constitute parts of the same contract, and the terms of the oral agreement add to and vary those of the written instrument. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936) (decided under former Code 1933, § 38-501).

Showing deed to be mortgage.

- Father, by a deed absolute, conveyed land to his son, who mortgaged the land for a large sum. Thereafter, with the consent of his father, he sold and assigned in writing the equity of redemption. Under the law, the father could not show by parol a subsequent rescission of the transfer, and that the original deed from himself to his son was intended only as a mortgage, and thereby establish a right in himself to redeem the land. New England Mtg. Sec. Co. v. Tarver, 60 F. 660 (5th Cir. 1894) (decided under former Code 1882, § 3800).

Failure to make improvements.

- In a suit based on a written contract given for the purchase money of described cemetery lots, the court did not err in sustaining demurrer to defense asserting failure of plaintiff to make certain improvements in the cemetery which prior to or contemporaneously with the execution of the contract it had verbally agreed to make. Slaten v. College Park Cem. Co., 185 Ga. 27, 193 S.E. 872 (1937) (decided under former Code 1933, § 38-501).

Administrator denying sale at auction.

- An administrator cannot dispute the truth of a solemn recital contained in a deed that the property was exposed for sale, that the highest bid was a stated sum, and that the administrator held the property therefor. The administrator may deny receipt of the proceeds, but the administrator cannot deny the sale at public auction for a stated sum. Gammage v. Perry, 29 Ga. App. 427, 116 S.E. 126 (1923) (decided under former Civil Code 1910, § 5788).

Real estate bond.

- Rule that negotiations in parol, occurring prior to or contemporaneously with the execution of a written contract, are considered as merged therein, and evidence as to parol terms which vary or contradict the terms of the written instrument should be excluded is ordinarily applied in a suit on the contract itself, but it also applies in suit against surety on real estate bond, as the alleged default under the bond sued on was in respect to the relation between the parties as fixed and governed by the real estate sales contract, especially in respect to the broker's right to commissions under the contract of sale. Pfeffer v. General Cas. Co. of Am., 87 Ga. App. 173, 73 S.E.2d 234 (1952) (decided under former Code 1933, § 38-501).

Real estate entire agreement clause.

- Provision in parties' contracts that there would be no verbal agreements of any kind between the parties was absolute, and as such, the provision barred the enforcement of a prior verbal agreement that, in fulfillment of its written contractual obligation to convey "lakefront" lots to the plaintiffs, contractor would provide plaintiffs with a permanent easement ensuring their littoral rights. Great Am. Bldrs., Inc. v. Howard, 207 Ga. App. 236, 427 S.E.2d 588 (1993) (decided under former O.C.G.A. § 24-6-1).

Conveyance of right of way.

- Written contract of conveyance of a right of way to a railroad company, duly executed and delivered by an owner of land, cannot be varied by oral testimony to the effect that the owner executed and delivered the contract upon agreement by the agent of the railroad company that the company would so construct the railroad as not to interfere with use of this land, on either side of the right of way, for pasturage purposes. Poole v. Elberton & E. Ry., 19 Ga. App. 631, 91 S.E. 1052 (1917) (decided under former Civil Code 1910, § 5788).

4. Other Agreements

Specific performance.

- Parol evidence rule is applicable in a suit for specific performance to deny another parol proof of an antecedent, inconsistent parol agreement. Thompson v. Arrington, 209 Ga. 343, 72 S.E.2d 293 (1952) (decided under former Code 1933, § 38-501).

Exclusion of specific performance in land purchase contract.

- When there is no language excluding specific performance as a remedy in a land purchase contract, the contract being unambiguous on this point, proffered evidence to the contrary, which purports to show that the parties intended liquidated damages to be the sole remedy, violates the parol evidence rule and is properly disregarded by the trial judge. Laseter v. Brown, 251 Ga. 179, 304 S.E.2d 72 (1983) (decided under former O.C.G.A. § 24-6-1).

Merger of prior negotiations.

- Contract of sale merges prior negotiations and all oral understandings and the court cannot rewrite the agreement to suit one of the parties. Worthington Pump & Mach. Corp. v. Briarcliff, 67 Ga. App. 71, 19 S.E.2d 574 (1942) (decided under former Code 1933, § 38-501); R.C. Craig, Ltd. v. Ships of Sea, Inc., 401 F. Supp. 1051 (S.D. Ga. 1975);(decided under former Code 1933, § 38-501).

Showing sale to be conditional.

- When a special agent makes a contract of sale in writing, evidence of prior conversations is inadmissible for the purpose of showing that the sale, on the sale's face absolute was in fact conditional. Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124, 45 S.E. 980 (1903) (decided under former Civil Code 1895, § 5201).

Oral understanding concerning contractual phrase.

- When a timber release contains a general descriptive phrase, the meaning of which was presumably well known to both the contracting parties, any attempt to prove that at the time of the execution of the contract the parties had an oral understanding as to the meaning of such phrase would clearly violate the statute of frauds, as well as the parol evidence rule. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947) (decided under former Code 1933, § 38-501).

Material contractual term.

- Statement in a complete conditional sales contract that one of the parties "has this day purchased" from the other party certain described personal property, for which one agrees to pay a stated amount of money, is a material contractual term and not a mere recital of the consideration of the contract, and may not be contradicted by parol evidence. Wade v. Ballard, 69 Ga. App. 669, 26 S.E.2d 542 (1943) (decided under former Code 1933, § 38-501).

Employment contract.

- Parol "lifetime" employment contract between the parties upon which the plaintiff relied, even if certain and definite enough to be enforceable, is superseded by the inconsistent, valid, complete, unambiguous, written employment contracts covering the same subject matter and providing for termination of employment by written notice. Vulcan Materials Co. v. Douglas, 131 Ga. App. 21, 205 S.E.2d 84 (1974) (decided under former Code 1933, § 38-501).

Sales contract.

- Parol evidence was inadmissible to establish that a seller breached a written contract for the sale of certain carpet-making technology because such evidence would contradict the express disclaimers of the parties' written contract. Textile Rubber & Chem. Co. v. Thermo-Flex Techs., Inc., 301 Ga. App. 491, 687 S.E.2d 919 (2009) (decided under former O.C.G.A. § 24-6-1).

Endorser.

- When the contract was not one by which the plaintiff was merely secured against loss which might result from the plaintiff becoming an endorser for the defendant, any testimony which sought to show that such was the understanding of the parties at the time the contract was entered into was inadmissible since the testimony sought to vary the express terms of the written contract by proof of a contemporaneous parol agreement. Macon Baseball Ass'n v. Pennington, 45 Ga. App. 611, 166 S.E. 35 (1932) (decided under former Civil Code 1910, § 5788).

Guarantor.

- After parties sign a bond as guarantors, the parties cannot set up, by way of defense to a suit thereon, that the instrument was executed by reason of a contemporaneous parol understanding with the principal debtor that they were not to be bound, and for a purpose wholly at variance with the instrument's plain tenor and import, as this would in effect be merely adding to and varying the terms of a written contract by parol evidence. Christopher v. Georgian Co., 22 Ga. App. 707, 97 S.E. 97 (1918) (decided under former Civil Code 1910, § 5788).

Replevy bond.

- When a defendant, on whose property a distress warrant was levied, gave a replevy bond for condemnation money, the security could not defend on the ground that the defendant signed on condition that the bond was only a forthcoming bond. Daniels v. Smith, 144 Ga. 561, 87 S.E. 774 (1916) (decided under former Civil Code 1910, § 5788).

Partnership agreement to dissolve.

- When one partner buys out another's interest, and assumes all the liabilities of the firm, and the terms of sale are in writing, parol evidence is not admissible to show that the purchaser agreed to pay an account of the vendor for board, though a memorandum of that account was on the partnership books and the board was due to a third member of the partnership. Delaney v. Anderson, 54 Ga. 586 (1875) (decided under former Code 1873, § 3800).

Prior indebtedness.

- In the absence of fraud, accident, or mistake, a writing signed by the parties and treated by the parties as an account stated would be presumed to contain or represent the entire agreement between the parties with reference to the indebtedness then existing between the parties by reason of contract of employment in question, and it was error for the court to admit testimony tending to contradict or vary the terms of the account stated. Bullard v. Western Waterproofing Co., 63 Ga. App. 547, 11 S.E.2d 713 (1940) (decided under former Code 1933, § 38-501).

Present transfer or discharge.

- Parol evidence rule forbids any attempt to prove that the promises stated in a writing do not accurately represent the agreement of the parties; and words, not merely reciting that a transfer or discharge had been made as consideration as an existing fact, but purporting to make a present transfer or present discharge, have also been held contractual in their nature and within the rule. Wade v. Ballard, 69 Ga. App. 669, 26 S.E.2d 542 (1943) (decided under former Code 1933, § 38-501).

Understandings between spouses not incorporated in divorce decree.

- Negotiations and oral agreements between husband and wife, preceding divorce, as to alimony or child support, are, by presumption of law, merged in the final judgment in the divorce suit. Understandings between the husband and wife which are not incorporated into the divorce decree are not binding. Cabaniss v. Cabaniss, 251 Ga. 177, 304 S.E.2d 65 (1983) (decided under former O.C.G.A. § 24-6-1).

E-mail was inadmissible hearsay of disqualification in unemployment benefits.

- Decision denying unemployment benefits to a discharged claimant under O.C.G.A. § 34-8-194 was reversed on appeal because the only evidence of the alleged violation of the employer's policy came by way of a patient's e-mail, which was inadmissible hearsay since the patient did not testify at the hearing. Robinson v. Butler, 319 Ga. App. 633, 737 S.E.2d 731 (2013) (decided under former O.C.G.A. § 24-6-1).

Evidence Admissible

1. In General

When writing incomplete.

- Before parol evidence can be received to show a collateral agreement, it must appear, either from the contract itself or from the attendant circumstances, that the contract is incomplete, and that what is sought to be shown as a collateral agreement does not in any way conflict with or contradict what is contained in the writing. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S.E. 485, 81 Am. St. R. 28 (1900) (decided under former Civil Code 1895, § 5201); McCommons v. Williams, 131 Ga. 313, 62 S.E. 230 (1908); Napier v. Strong, 19 Ga. App. 401, 91 S.E. 579 (decided under former Civil Code 1895, § 5201); 19 Ga. App. 828, 92 S.E. 558 (1917); Roberts v. Investors' Sav. Co., 154 Ga. 45, 113 S.E. 398 (1922), cert. denied, Bowen v. Swift & Co., 52 Ga. App. 793, 184 S.E. 625 (1936) (decided under former Civil Code 1910, § 5788); Shubert v. Speir, 201 Ga. 20, 38 S.E.2d 835 (1946); Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423, 211 S.E.2d 720 (1975) (decided under former Civil Code 1910, § 5788);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).

If the writing appears on the writing's face to be an incomplete contract and if the parol evidence offered is consistent with and not contradictory of the terms of the written instrument, then the parol evidence is admissible to complete the agreement between the parties. Thomas v. Clark, 178 Ga. App. 823, 344 S.E.2d 754 (1986) (decided under former O.C.G.A. § 24-6-1).

Invoices as valid written instrument.

- On an action on an open account, the trial court did not violate the parol evidence rule by admitting evidence that explained a "paid" notation on invoices. An invoice for goods delivered on open account was not "a valid written instrument" as that term was used in former O.C.G.A. § 24-6-1 (see now O.C.G.A. § 24-3-1); furthermore, former O.C.G.A. § 24-6-9 (see now O.C.G.A. § 24-3-9) specifically provided that receipts for money were always only prima facie evidence of payment and could be denied or explained by parol. Wheeler v. IDN-Armstrong's, Inc., 288 Ga. App. 253, 653 S.E.2d 835 (2007) (decided under former O.C.G.A. § 24-6-1).

Construction of contract or explanation of ambiguities.

- Parol evidence may be used to explain ambiguities, or aid on the construction of a contract, although it is clearly inadmissible to vary the terms of the written instrument. State Farm Fire & Cas. Co. v. Fordham, 148 Ga. App. 48, 250 S.E.2d 843 (1978) (decided under former Code 1933, § 38-501); Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138 (1980);(decided under former Code 1933, § 38-501).

Conflicting documents should be read consistently if possible.

- Courts may not use extrinsic evidence to vary the terms of or otherwise render ambiguous a written contract. However, when two releases both concern the allocation of liability between the parties and were executed on the same day, the court should read the releases together and consider the releases as a single contract in determining whether an ambiguity exists. But if one release violates public policy, the court may not consider extrinsic evidence altering or contradicting the unambiguous language of the valid release. Watson v. Union Camp Corp., 861 F. Supp. 1086 (S.D. Ga. 1994) (decided under former O.C.G.A. § 24-6-1).

Existence of fraud.

- Parol evidence is admissible to show that what appears to be a valid written contract is void because the complaining party was induced to execute the contract by the fraud of the other. Johnson v. Sherrer, 197 Ga. 392, 29 S.E.2d 581 (1944) (decided under former Code 1933, § 38-501); Hinson v. Hinson, 221 Ga. 291, 144 S.E.2d 381 (1965); Brown v. Techdata Corp., 238 Ga. 622, 234 S.E.2d 787 (1977) (decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).

Contracts procured by fraud.

- Rule that parol agreements shall not be received to change or add to terms of written contract does not apply when alleged contract was procured by fraud, and stipulation in contract that provisions thereof constitute sole and entire agreement between parties and that no modification thereof shall be binding on either party unless in writing and signed by seller can have no bearing in a case where fraud to induce the contract is at issue. Spires v. Relco, Inc., 165 Ga. App. 4, 299 S.E.2d 58 (1983) (decided under former O.C.G.A. § 24-6-1).

In a dispute over installment contract to purchase land, evidence of alleged oral agreement between the parties, which the buyer partially performed and the seller accepted the benefits of, was not violative of the parol evidence rule and helped to prove the existence of the oral agreement as the buyer alleged. Hernandez v. Carnes, 290 Ga. App. 730, 659 S.E.2d 925 (2008) (decided under former O.C.G.A. § 24-6-1).

Rebuttal of fraud.

- Parol evidence rule has no application when the defendant introduces testimony for the purpose of rebutting one of the elements of fraud, not for altering the instrument. Friendly Fin. Co. v. Stover, 109 Ga. App. 21, 134 S.E.2d 837 (1964) (decided under former Code 1933, § 38-501).

Lack of valid agreement.

- Parol evidence may be used to show no valid agreement ever existed. Citizens & S. Nat'l Bank v. Williams, 147 Ga. App. 205, 249 S.E.2d 289 (1978) (decided under former Code 1933, § 38-501).

Lack of consideration.

- While it is never allowable, under the guise of inquiring into the consideration of a valid written contract, to vary or contradict the terms or conditions of the instrument, it is permissible to show by parol evidence which does not vary or contradict the terms and conditions of the writing that it was never a contract for want of consideration. Miller v. Whitesburg Banking Co., 58 Ga. App. 84, 197 S.E. 906 (1938) (decided under former Code 1933, § 38-501).

Oral contract as inducement for written contract.

- Collateral oral agreement, not inconsistent with a written contract, is not necessarily merged into the written contract, and one contract may be the consideration for another contract and may induce the execution of the other contract; such independent oral contract may be proved and enforced. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977) (decided under former Code 1933, § 38-501).

Verbal agreement independent of written contract.

- When a verbal agreement is an independent and complete contract within itself and forms no part of the written contract, it does not come within the operation of the parol evidence rule. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977) (decided under former Code 1933, § 38-501).

Subsequent agreement.

- Rule is not violated by proof of a new and distinct subsequent agreement in the nature of a novation. Wimberly v. Tanner, 34 Ga. App. 313, 129 S.E. 306 (1925) (decided under former Civil Code 1910, § 5788); Mutual Furn. Co. v. Moore, 60 Ga. App. 655, 4 S.E.2d 711 (1939); Long Tobacco Harvesting Co. v. Brannen, 98 Ga. App. 142, 105 S.E.2d 390 (1958) (decided under former Code 1933, § 38-501); 99 Ga. App. 541, 109 S.E.2d 90 (1959);later appeal,(decided under former Code 1933, § 38-501).

Evidence of nondelivery.

- It is no contradiction of a written agreement, which does not of itself purport to have been delivered, to assert its nondelivery, and therefore parol evidence is admissible to disprove the fact of delivery. Nalley Land & Inv. Co. v. Merchants' & Planters' Bank, 178 Ga. 818, 174 S.E. 618 (1934), later appeal, 187 Ga. 142, 199 S.E. 815 (1938) (decided under former Code 1933, § 38-501).

Implication or rebuttal of trust.

- Parol evidence rule does not prevent the introduction of evidence to show the nature of the transaction or the circumstances or conduct of the parties, either to imply or rebut a trust, although the effect is to alter or vary a written instrument. Hodges v. Hodges, 221 Ga. 587, 146 S.E.2d 313 (1965) (decided under former Code 1933, § 38-501).

Identification of real party in interest.

- Parol evidence is admissible when not a variance with a written contract to identify the real party in interest. Contractors Mgt. Corp. v. McDowell-Kelley, Inc., 136 Ga. App. 116, 220 S.E.2d 473 (1975) (decided under former Code 1933, § 38-501).

Proof of signature.

- Although under O.C.G.A. § 13-2-2(1) and former O.C.G.A. § 24-6-1, parol evidence was inadmissible to add to, take from, or vary a written contract, it was properly admitted to show that a promisor who died signing a guaranty had actually signed the guaranty. A store employee testified that the employee witnessed the store owner sign the guaranty. John Deere Co. v. Haralson, 278 Ga. 192, 599 S.E.2d 164 (2004) (decided under former O.C.G.A. § 24-6-1).

Lack of malice.

- When evidence is not offered for the purpose of altering the substantive rights of the parties under a written sales contract, but for the purpose of establishing that one party did not act maliciously and oppressively, and if the evidence is probative on that issue, the evidence should be admitted. Oden & Sims Used Cars, Inc. v. McMullen, 153 Ga. App. 127, 264 S.E.2d 580 (1980) (decided under former Code 1933, § 38-501).

Division of consideration.

- While proof of parol contemporaneous agreements is generally inadmissible to add to, take from, or vary a written contract, the allegations of the petition setting forth the division to be made of the consideration to be paid to the co-obligees under the contract do not come within the inhibition of the parol evidence rule since such alleged facts do not add to, take from, or vary the terms of the written instrument, but merely set forth the respective interests of the obligees. Bernstein v. Fagelson, 38 Ga. App. 294, 143 S.E. 237 (1928) (decided under former Civil Code 1910, § 5788).

Waiver of stipulation of contract.

- While parol evidence is inadmissible to add to, take from, or vary a written contract, the parol evidence rule has no application to a case if waiver of a stipulation of the contract is being asserted. Henry v. Hemingway, 159 Ga. App. 375, 283 S.E.2d 341 (1981) (decided under former Code 1933, § 38-501).

2. Notes

Contract partly in parol.

- Parol evidence is admissible not only when a promissory note is obtained by fraud, but when the note is not the entire contract between the parties, and when the contract is partly in parol and partly in writing. Crooker v. Hamilton, 3 Ga. App. 190, 59 S.E. 722 (1907) (decided under former Civil Code 1895, § 5201).

Inquiry into consideration.

- When a promissory note recited no consideration except in the words "for value received," the real consideration of the note may be inquired into as far as may be necessary to the defense pleaded. Dunson & Bros. Co. v. Smith Seed Co., 26 Ga. App. 585, 106 S.E. 914 (1921) (decided under former Civil Code 1910, § 5788).

Failure of consideration.

- In a suit on an unconditional promise to pay, although the consideration may not be expressed in the instrument, it is ordinarily permissible for the defendant to plead, and to prove by parol, that the consideration supporting the promise has failed either in whole or in part. Tyre v. Price, 52 Ga. App. 526, 183 S.E. 843 (1936) (decided under former Code 1933, § 38-501).

Note placed as collateral.

- When there was evidence of a parol agreement on the part of the payee of the collateral note that a note should be held as collateral, which was itself a fact not affecting the contents of the writing, and which, if credible, tended to show that the note had been placed as collateral, the fact as to the pledge, being entirely independent from the contents of the note, could properly be shown by parol. Buffington v. Bank of College Park, 157 Ga. 570, 122 S.E. 50 (1924) (decided under former Civil Code 1910, § 5788).

When the alleged oral agreement was entered into subsequent to the execution of the promissory note, former O.C.G.A. § 24-6-1 (see now O.C.G.A. § 24-3-1) did not stand as a barrier to the agreement's enforcement. South Atl. Prod. Credit Ass'n v. Gibbs, 257 Ga. 521, 361 S.E.2d 167 (1987) (decided under former O.C.G.A. § 24-6-1).

3. Real Estate Transactions

Creation of trust.

- Deed absolute in form may be shown by parol evidence to have been made in trust for the benefit of the grantor if the maker remains in possession of the land. Hall v. Turner, 198 Ga. 763, 32 S.E.2d 829 (1945) (decided under former Code 1933, § 38-501).

Clerical error.

- In view of the particular statement in a deed that the tract conveyed was bounded on the east and south by lands of named owners, parol evidence was admissible for the purpose of applying the description to the intended subject matter and to show that the statement as to the district number was a clerical error. Smith v. Federal Land Bank, 181 Ga. 1, 181 S.E. 149 (1935) (decided under former Code 1933, § 38-501).

4. Other Agreements

Receipt in full.

- Receipt for money in full of all demands is always open to contradiction or explanation. Walters v. Odom, 53 Ga. 286 (1874) (decided under former Code 1873, § 3800).

Implied trust.

- While an express trust must be created by writing and cannot be proved by parol, implied trusts may be established by parol evidence, although the effect of such evidence is to alter or vary a written instrument, and although the defendant sets up and insists upon the statute of frauds. Hall v. Turner, 198 Ga. 763, 32 S.E.2d 829 (1945) (decided under former Code 1933, § 38-501).

Implied warranty.

- In an action to recover the purchase price of defective goods, testimony that the defendant told the plaintiff the goods would give satisfactory service and that the defendant would give a one-year warranty with reference to the service was admissible to show the alleged breach of an implied contract and the trial court did not err in failing to charge the general rule concerning parol evidence. Cloud v. Stewart, 92 Ga. App. 247, 88 S.E.2d 323 (1955) (decided under former Code 1933, § 38-501).

Surety induced by false representation.

- Plea to the effect that a surety was induced to sign by a false representation that a surety whose name appeared as such had already signed the contract of suretyship is not an effort to vary the terms of a written contract. W.T. Rawleigh Co. v. Kelly, 78 Ga. App. 10, 50 S.E.2d 113 (1948) (decided under former Code 1933, § 38-501).

Assignment of salary as cover for usurious loan.

- Parol evidence is admissible to show that a purported assignment of salary is but a cover for a usurious loan, notwithstanding its recitals to the contrary. Hinton v. Mack Purchasing Co., 41 Ga. App. 823, 155 S.E. 78 (1930) (decided under former Civil Code 1910, § 5788).

Variance in deposit slip.

- When husband had withdrawn money from the wife's account, in subsequent suit by the wife against the bank to recover money, evidence offered by the defendant bank, to the effect that while the deposit slip showed the money deposited to the separate account of the wife, such money was in fact placed to the credit of a joint business enterprise of the husband and wife, and thereafter drawn out on checks against this account by the plaintiff and her husband, was admissible in support of the defense urged by the defendant bank. Greeson v. Farmers' & Merchants' Bank, 50 Ga. App. 566, 179 S.E. 191 (1935) (decided under former Code 1933, § 38-501).

Bill of sale.

- Court erred in admitting parol evidence that a "bill of sale" was not intended to transfer ownership of a boat, the bill being executed on the regular required Coast Guard form, and all language therein relating to a sale and conveyance, the other provisions merely relating to the method of payment. Peterson v. Lexington Ins. Co., 753 F.2d 1016 (11th Cir. 1985) (decided under former O.C.G.A. § 24-6-1).

Conversations supplementing recertification documents for lease.

- When a public housing lease required information about family size and income annually, but the lease did not indicate that completion of the recertification documents was a condition precedent to renewal of the lease, the recertification document was not an agreement and was not merged with the lease so as to make admission of conversations supplementing the information contained in the recertification documents a violation of the parol evidence rule. Decatur Hous. Auth. v. Christian, 182 Ga. App. 270, 355 S.E.2d 764 (1987) (decided under former O.C.G.A. § 24-6-1).

Collective bargaining agreement.

- In action by retired employees to prevent the corporation from modifying their health insurance benefits, the fact that both parties offered reasonable interpretations of a collective bargaining agreement that gave full effect to one clause and qualified the other was sufficient to establish that the contract was ambiguous and that the trial court should have considered extrinsic evidence. Stewart v. KHD Deutz of Am., Corp., 980 F.2d 698 (11th Cir. 1993), cert. denied, 519 U.S. 930, 117 S. Ct. 300, 136 L. Ed. 2d 218 (1996) (decided under former O.C.G.A. § 24-6-1).

Not admissible if contract unambiguous.

- Trial court properly struck a paragraph in an estate executrix's affidavit in opposition to the decedent's nephew's motion for summary judgment, arising from an action regarding estate assets and joint venture agreements, as the executrix's assertions regarding a handwritten note by the husband constituted parol evidence which could not be used to alter the meaning of the unambiguous language of the agreements, and necessity was not shown for admission of the hearsay evidence; accordingly, the handwritten notation that the properties at issue were to be sold for "market value" could not change the contractual language that indicated that the properties would be sold for a predetermined price. Zaglin v. Atlanta Army Navy Store, Inc., 275 Ga. App. 855, 622 S.E.2d 73 (2005) (decided under former O.C.G.A. § 24-6-1).

Life insurance beneficiary designation form.

- Trial court erred by granting summary judgment to a child in a suit brought by a sibling seeking a determination that the sibling was the sole beneficiary of their parent's life insurance policy as the sibling sufficiently alleged fraud and/or forgery with regard to a second beneficiary designation form allegedly signed by the parent. As such, the trial court should have permitted the sibling to introduce two affidavits that supported the sibling's allegations that the second beneficiary designation form was void. Weatherly v. Weatherly, 292 Ga. App. 879, 665 S.E.2d 922 (2008) (decided under former O.C.G.A. § 24-6-1).

With regard to the defendant's murder conviction, the trial court properly denied the defendant's motion for a new trial because the victim's out-of-court statements to the victim's brother were admissible under the necessity exception set forth in O.C.G.A. § 24-3-1(b); therefore, the defendant's counsel was not deficient because there is no deficient performance when an attorney fails to object to admissible evidence. Bulloch v. State, 293 Ga. 179, 744 S.E.2d 763 (2013).

Written consent required for timber cutting.

- In an action for timber conversion, the trial court erred when the court denied the plaintiff's motion in limine to exclude parol evidence concerning the plaintiff's alleged consent to the timber company's cutting and other topics because O.C.G.A. § 51-12-51(a) clearly and unambiguously required written consent and any verbal consent to cut timber on the property was inadequate; parol evidence regarding an understanding to cut timber at or even after the closing was inadmissible as it could be taken to contradict the plain terms of the loan documents, which barred cutting without written consent; and the jury apparently considered the parol evidence in the course of reaching the jury's verdict for the timber company. AgSouth Farm Credit, ACA v. Gowen Timber Co., 336 Ga. App. 581, 784 S.E.2d 913 (2016).

RESEARCH REFERENCES

Am. Jur. 2d.

- 17A Am. Jur. 2d, Contracts, § 329 et seq. 29A Am. Jur. 2d, Evidence, § 1104.

C.J.S.

- 32A C.J.S., Evidence, §§ 1125 et seq., 1130 et seq., 1148 et seq., 1207, 1211, 1212, 1216, 1241 et seq., 1247, 1249 et seq., 1270, 1271.

ALR.

- Parol evidence to prove title to real property when the title is only collaterally involved, 1 A.L.R. 1143.

Admissibility of parol evidence to vary or explain the contract implied from the regular endorsement of a bill or note, 11 A.L.R. 637; 22 A.L.R. 527; 35 A.L.R. 1120; 54 A.L.R. 999; 92 A.L.R. 721.

Parol evidence rule as applied to lease, 25 A.L.R. 787; 88 A.L.R. 1380; 151 A.L.R. 279.

Parol evidence rule as applied to escrow agreement, 49 A.L.R. 1529.

Parol evidence in relation to assumption of mortgage debt by grantee of mortgaged property, 50 A.L.R. 1220; 143 A.L.R. 548.

Parol evidence rule as applicable to agreement for improvement or alterations by vendor of real property, 68 A.L.R. 245.

Parol evidence rule as applied to letters or other informal writings not purporting to be the agreement itself, 68 A.L.R. 1251.

Admissibility of parol evidence of contents of lost certificate of protest, 75 A.L.R. 134.

Parol evidence rule as affecting extrinsic evidence to show or to negative usury, 82 A.L.R. 1199; 104 A.L.R. 1261.

Admissibility of parol or extrinsic evidence to show promise of employment or other consideration not embodied in written release of claim for bodily injury or death, 92 A.L.R. 248.

Admissibility of parol or extrinsic evidence to alter or supplement written records of local legislative bodies, 98 A.L.R. 1229.

"Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Admissibility of parol evidence to show whether particular word or phrase was intended to connote a chattel mortgage or conditional sale, 101 A.L.R. 625.

Exception to rule of admissibility of parol evidence to show that deed absolute on its face was intended as a mortgage, 111 A.L.R. 448.

Duty of federal courts to follow decisions of state courts as to the so-called "parol evidence rule"; and conflict of laws as to that rule, 141 A.L.R. 1043.

Application and effect of parol evidence rule as determinable upon the pleading, 10 A.L.R.2d 720.

Parol evidence rule as applicable to agreement not to engage in competition with a business sold, 11 A.L.R.2d 1227.

Parol evidence to show duration of written contract for support or maintenance, 14 A.L.R.2d 897.

Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds, 15 A.L.R.2d 1330.

Parol evidence rule as applied to deposit of funds in name of depositor and another, 33 A.L.R.2d 569.

Parol evidence rule as applied to written guaranty, 33 A.L.R.2d 960.

Applicability of parol evidence to written listing agreement of real estate broker, 38 A.L.R.2d 542.

Admissibility of extrinsic evidence to explain or contradict bank deposit slips, deposit entries in passbooks, certificate of deposit, or similar instruments, 42 A.L.R.2d 600.

Admissibility of parol evidence of election officials to impeach election returns, 46 A.L.R.2d 1385.

Admissibility of parol evidence as to proceedings at meetings of stockholders or directors of private corporations or associations, 48 A.L.R.2d 1259.

Parol evidence to show that lease of personalty, absolute on its face, is conditional sale, 57 A.L.R.2d 1076.

Applicability of parol evidence rule to agreement between stockbroker and customer, 60 A.L.R.2d 1135.

Admissibility of parol evidence with respect to reservations or exceptions upon conveyance of real property, 61 A.L.R.2d 1390.

Admissibility of parol evidence as to limitation on cost structure in builder's action on written cost-plus-fee construction contract, 84 A.L.R.2d 1324.

"Merger" clause in written contract as precluding conviction for false pretenses based on earlier oral false representations, 94 A.L.R.2d 570.

Applicability of parol evidence rule in favor of or against one not a party to contract of release, 13 A.L.R.3d 313.

Parol exception of fixtures from conveyance or lease, 29 A.L.R.3d 1441.

Application of parol evidence rule in action on contract for architect's services, 69 A.L.R.3d 1353.

Modern status of rules governing legal effect of failure to object to admission of extrinsic evidence violative of parol evidence rule, 81 A.L.R.3d 249.

Admissibility of evidence to establish oral antenuptial agreement, 81 A.L.R.3d 453.

Liability in tort for interference with physician's contract or relationship with hospital, 7 A.L.R.4th 572.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through interpreter - state cases, 97 A.L.R.6th 567.

Validity, construction, and enforcement of oral antenuptial agreements, 15 A.L.R.7th 2.

24-3-2. Proof of unwritten portions of contract admissible where not inconsistent.

If the writing does not purport to contain all the stipulations of the contract, parol evidence shall be admissible to prove other portions thereof not inconsistent with the writing; collateral undertakings between parties of the same part among themselves would not properly be looked for in the writing.

(Code 1981, §24-3-2, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3726, former Code 1868, § 3750, former Code 1873, § 3803, former Code 1882, § 3803, former Civil Code 1895, § 5204, former Civil Code 1910, § 5791, former Code 1933, § 38-504, and former O.C.G.A. § 24-6-2 are included in the annotations for this Code section.

Requirements for application.

- To bring a case within the rule admitting parol evidence to complete an entire agreement of which a writing is only a part, two things are essential. First, the writing must appear on inspection to be an incomplete contract; and, second, the parol evidence must be consistent with and not contradictory of the written instrument. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S.E. 485, 81 Am. St. R. 28 (1900) (decided under former Civil Code 1895, § 5204); McCreary v. Acton, 29 Ga. App. 162, 114 S.E. 230 (1922); Rauschenberg v. Peeples, 30 Ga. App. 384, 118 S.E. 409 (1923) (decided under former Civil Code 1910, § 5791) Bowen v. Swift & Co., 52 Ga. App. 793, 184 S.E. 625 (1936) See also Harden v. Orr, 219 Ga. 54, 131 S.E.2d 545 (1963) (decided under former Civil Code 1910, § 5791);(decided under former Code 1933, § 38-504);(decided under former Code 1933, § 38-504).

Writing must have essential elements of contract.

- While it is true that parol evidence as to all attendant and surrounding facts and circumstances may be admitted to explain ambiguities in a written contract and that if it appears from the contract itself that it was not intended that the instrument should embrace the entire agreement, parol evidence is admissible to set up collateral agreements not inconsistent with the terms of the writing, in order for these principles of law to have application, the instrument relied on must embrace within itself the essential elements of a contract. Jones v. Knight Mercantile Co., 51 Ga. App. 57, 179 S.E. 569 (1935) (decided under former Code 1933, § 38-504).

Mere unsigned slip of paper, although in the handwriting of the president of the plaintiff corporation, containing only the words "Contract price, $2,950 - J.A. Glass, carpenter, San Verner, plumber and elect," wholly failed to disclose the subject matter of the alleged contract, did not purport to bind anyone with reference thereto, and cannot be construed as such an instrument as, when aided by parol, would constitute a binding agreement. Jones v. Knight Mercantile Co., 51 Ga. App. 57, 179 S.E. 569 (1935) (decided under former Code 1933, § 38-504).

Contracts within the statute of frauds.

- Parol evidence rule does not apply to contracts covered by the statute of frauds. Douglass v. Bunn, 110 Ga. 159, 35 S.E. 339 (1900) (decided under former Civil Code 1895, § 5204); Shinall Bros. v. Skelton, 28 Ga. App. 527, 112 S.E. 163 (1922);(decided under former Civil Code 1910, § 5791).

Provision of former O.C.G.A. § 24-6-2 that if a writing did not purport to be entire agreement between parties, parol evidence was admissible to prove other portions thereof not inconsistent with the writing, was inapplicable to a contract of guaranty because such contracts are required to be entirely in writing under O.C.G.A. § 13-5-30(2), statute of frauds. Builder's Supply Corp. v. Taylor, 164 Ga. App. 127, 296 S.E.2d 417 (1982) (decided under former O.C.G.A. § 24-6-2).

In action to recover on contract of guaranty, parol evidence was not admissible to prove identity of principal debtor, the identity not having been provided by the subject written agreement. Builder's Supply Corp. v. Taylor, 164 Ga. App. 127, 296 S.E.2d 417 (1982) (decided under former O.C.G.A. § 24-6-2).

Contract, partly oral and partly written, for a period of one year is valid and enforceable. Empire Box, Inc. v. Moore, 87 Ga. App. 57, 73 S.E.2d 63 (1952) (decided under former Code 1933, § 38-504).

Collateral agreement which is inducement for written agreement.

- Distinct, collateral oral agreement that is consistent with and usually forms part of the consideration or inducement for the second written agreement, may be established by parol evidence. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977) (decided under former Code 1933, § 38-504).

When the evidence showed the existence of a separate and independent collateral agreement, the renewal of which, for three consecutive years, induced appellee to renew a written agreement with appellant and that the appellant honored this agreement, the appellant could not now keep the agreement from evidence under the sanction of the parol evidence rule. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977) (decided under former Code 1933, § 38-504).

Filling blanks.

- Parol evidence is admissible to fill blanks in the writing not inconsistent with the writing itself. Westbrook v. Griffin, 24 Ga. App. 808, 102 S.E. 453 (1920) (decided under former Civil Code 1910, § 5791).

When, in a special contract in writing between a common carrier and a shipper of livestock, the amount of freight is left blank, the blank may be filled by parol evidence showing the actual amount contracted for and paid by the shipper. Georgia R.R. & Banking Co. v. Reid, 91 Ga. 377, 17 S.E. 934 (1893) (decided under former Code 1882, § 3803).

Subscription for stock.

- Parol evidence rule applies to a written subscription for stock. Hendrix v. Academy of Music, 73 Ga. 437 (1884) (decided under former Code 1882, § 3803).

Receipt given by attorney.

- Parol evidence rule applies to a receipt given by an attorney for a note placed in the attorney's hands for collection. Barclay v. Hopkins, 59 Ga. 562 (1877) (decided under former Code 1882, § 3803).

Contract excluding other representations.

- If a written contract of sale stated that the writing was "made under inducements and representations herein expressed and no others," it could not be proved by parol that plaintiff's agent made any other representation or warranty. Shinall Bros. v. Skelton, 28 Ga. App. 527, 112 S.E. 163 (1922) (decided under former Civil Code 1910, § 5791).

Unambiguous maturity date not waived.

- Former O.C.G.A. § 24-6-2 permitted parol evidence of collateral undertakings between the parties only when the writing did not purport to contain all the stipulations of the contract and only when such evidence was not inconsistent with the writing. In this case, defendant's testimony that the maturity date was waived by parol agreement was directly inconsistent with the certain and unambiguous maturity date stipulated in the written note. Moreover, the general rule prohibiting parol evidence may not be avoided on the theory of a confidential or fiduciary relationship between the parties. Barton v. Marubeni Am. Corp., 204 Ga. App. 346, 419 S.E.2d 342 (1992) (decided under former O.C.G.A. § 24-6-2).

Letter reciting writer's understanding of oral contract.

- Letter written by vice-president of corporation reciting the vice-president's understanding of the oral contract of employment between the president of corporation and the recipient of the letter, since it did not purport to be the contract itself, did not prevent the use of parol evidence to show what the full contract was. Marston v. Downing Co., 73 F.2d 94 (5th Cir. 1934) (decided under former Code 1933, § 38-504).

When written part may be varied.

- When a contract is entire, part of which is in writing and part in parol, the written part cannot be varied by parol evidence in the absence of fraud, accident, or mistake. Rauschenberg v. Peeples, 30 Ga. App. 384, 118 S.E. 409 (1923) (decided under former Civil Code 1910, § 5791).

Contract held complete on contract's face.

- See McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945) (timber lease);(decided under former Code 1933, § 38-504).

Effect of part performance.

- Acceptance of the benefits and part performance of the contract by the plaintiff would preclude the defendant from attacking the alleged oral portion of a contract which appeared to be an explanation of the entire contract rather than conflicting with any written provisions. Consumers Fin. Corp. v. Lamb, 217 Ga. 359, 122 S.E.2d 101 (1961) (decided under former Code 1933, § 38-504).

Admitting contract in answer.

- When the defendants admitted in their answer that the written order and notes constituted the entire contract, the defendants were precluded from offering evidence of any other contract. Shinall Bros. v. Skelton, 28 Ga. App. 527, 112 S.E. 163 (1922) (decided under former Civil Code 1910, § 5791).

Assignment of note to secure assignor's debts to bank.

- For application of former O.C.G.A. § 24-6-2 to a situation where debts secured by an assignment of a note included only the assignor's debts on notes signed by the assignor as maker or also to notes on which the assignor might be liable as an endorser or accommodation party, see National City Bank v. Busbin, 175 Ga. App. 103, 332 S.E.2d 678 (1985) (decided under former O.C.G.A. § 24-6-2).

Promissory note held complete.

- If the promissory note constituted an unconditional promise to pay, defendants were prohibited from proving the lender's alleged oral promise which, if proven, would clearly have contradicted the terms of the note requiring payment. Devin Lamplighter, Ltd. v. American Gen. Fin., Inc., 206 Ga. App. 747, 426 S.E.2d 645 (1992) (decided under former O.C.G.A. § 24-6-2).

Written part may not be varied.

- Trial court properly struck a paragraph in an estate executrix's affidavit in opposition to the decedent's nephew's motion for summary judgment, arising from an action regarding estate assets and joint venture agreements, as the executrix's assertions regarding a handwritten note by the husband constituted parol evidence which could not be used to alter the meaning of the unambiguous language of the agreements, and necessity was not shown for admission of the hearsay evidence; accordingly, the handwritten notation that the properties at issue were to be sold for "market value" could not change the contractual language that indicated that the properties would be sold for a predetermined price. Zaglin v. Atlanta Army Navy Store, Inc., 275 Ga. App. 855, 622 S.E.2d 73 (2005) (decided under former O.C.G.A. § 24-6-2).

Cited in Stallings v. State, 319 Ga. App. 587, 737 S.E.2d 592 (2013); Bulloch v. State, 293 Ga. 179, 744 S.E.2d 763 (2013); Carter v. State, 324 Ga. App. 118, 749 S.E.2d 404 (2013); Miller v. State, 296 Ga. 9, 764 S.E.2d 823 (2014); Epstein, Becker & Green, P.C. v. Anduro Holdings, LLC, 346 Ga. App. 874, 816 S.E.2d 695 (2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, § 1128 et seq.

C.J.S.

- 32A C.J.S., Evidence, §§ 1176, 1195, 1196, 1219, 1243, 1244, 1245, 1255 et seq., 1269.

ALR.

- Competency of parol evidence to show a money consideration additional to that stipulated in a written contract, 12 A.L.R. 354.

Competency of parol evidence to vary, contradict, or add to terms of ticket or token issued by carrier for transportation or accommodation of passenger, 62 A.L.R. 655.

Parol evidence rule: tests for determining whether entire agreement is embodied in the writing (rule of integration), 70 A.L.R. 752.

Admissibility of parol or extrinsic evidence to show promise of employment or other consideration not embodied in written release of claim for bodily injury or death, 92 A.L.R. 248.

Admissibility of parol or extrinsic evidence to alter or supplement written records of local legislative bodies, 98 A.L.R. 1229.

"Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Parol evidence rule as applied to rights or liabilities of coparties to contract as between themselves or their privies, 129 A.L.R. 673.

Election by beneficiary to take under or against will as predictable upon initiation of, or participation in, court proceedings, 166 A.L.R. 316.

Performance of work previously contracted for as consideration for promise to pay greater or additional amount, 12 A.L.R.2d 78.

Parol evidence to show duration of written contract for support or maintenance, 14 A.L.R.2d 897.

Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds, 15 A.L.R.2d 1330.

Admissibility of oral agreement as to specific time for performance where written contract is silent, 85 A.L.R.2d 1269.

Admissibility of oral agreement respecting duration of employment or agency where written contract is silent, 85 A.L.R.2d 1331.

Effectiveness of stipulation of parties or attorneys, notwithstanding its violating form requirements, 7 A.L.R.3d 1394.

Enforceability of voluntary promise of additional compensation because of unforeseen difficulties in performance of existing contract, 85 A.L.R.3d 259.

24-3-3. Contemporaneous writings explaining each other; parol evidence explaining ambiguities.

  1. All contemporaneous writings shall be admissible to explain each other.
  2. Parol evidence shall be admissible to explain all ambiguities, both latent and patent.

(Code 1981, §24-3-3, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Law reviews.

- For article, "Supplementing Written Agreements: Restating the Parol Evidence Rule in Terms of Credibility and Relative Fault," see 34 Emory L.J. 93 (1985).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3724, former Code 1868, § 3748, former Code 1873, § 3801, former Code 1882, § 3801, former Civil Code 1895, § 5202, former Civil Code 1910, § 5789, former Code 1933, § 38-502, and former O.C.G.A. § 24-6-3 are included in the annotations for this Code section.

Parol evidence is admissible to explain an ambiguity in a writing. Chero-Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656, 116 S.E. 325 (1923) (decided under former Civil Code 1910, § 5789); Commercial Credit Co. v. Lewis, 59 Ga. App. 144, 200 S.E. 566 (1938); Hanson v. Stern, 102 Ga. App. 341, 116 S.E.2d 237 (1960) (decided under former Code 1933, § 38-502); R.C. Craig, Ltd. v. Ships of Sea, Inc., 401 F. Supp. 1051 (S.D. Ga. 1975); Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804, 278 S.E.2d 708 (1981) (decided under former Code 1933, § 38-502);(decided under former Code 1933, § 38-502);(decided under former Code 1933, § 38-502).

Parol evidence is admissible to explain an ambiguity in a written contract, although such evidence is inadmissible to add to, take from, or vary the writing itself. Andrews v. Skinner, 158 Ga. App. 229, 279 S.E.2d 523 (1981) (decided under former Code 1933, § 38-502).

If parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument. Andrews v. Skinner, 158 Ga. App. 229, 279 S.E.2d 523 (1981) (decided under former Code 1933, § 38-502).

One writing purports to contain the entire understanding.

- Contemporaneous writings should be considered even if one of the writings purports to contain the entire understanding of the parties in the transaction contemplated and even if the writings are not cross-referenced. Duke v. KHD Deutz of Am. Corp., 221 Ga. App. 452, 471 S.E.2d 537 (1996) (decided under former O.C.G.A. § 24-6-3).

Abbreviations.

- When a writing is obscure or ambiguous, by reason of an unfamiliar abbreviation, what it means is for the jury and to arrive at the meaning, clear and intelligible expressions in the instrument may be compared with facts otherwise proved. Holland v. Long & Bro., 57 Ga. 36 (1876) (decided under former Code 1873, § 3801).

Letters "O.K." being ambiguous, their meaning may be explained by parol evidence. Penn Tobacco Co. v. Leman & Co., 109 Ga. 428, 34 S.E. 679 (1899) (decided under former Civil Code 1895, § 5202).

Capacity of signer.

- When there is a written contract, not under seal and not containing a so-called integration or "entire agreement" clause, parol is admissible to show the capacity in which one signed such agreement. Evans v. Smithdeal, 143 Ga. App. 287, 238 S.E.2d 278 (1977) (decided under former Code 1933, § 38-502).

Jury question.

- As a general rule, the construction of a contract is a question for the court; but if the terms of a written instrument are ambiguous, the contract's meaning should be left to the jury. Illges v. Dexter, 77 Ga. 36 (1886) (decided under former Code 1882, § 3801).

Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981) (decided under former O.C.G.A. § 24-6-3).

Cited in Dulcio v. State, 292 Ga. 645, 740 S.E.2d 574 (2013); Johnson v. State, 323 Ga. App. 65, 744 S.E.2d 921 (2013); Wilson v. State, 295 Ga. 84, 757 S.E.2d 825 (2014).

Writings Explaining Each Other

Affidavits admissible.

- Summary judgment was proper and parol evidence was admissible to show the meaning of a separation agreement when a former wife's affidavits established that four certificates of deposit were purchased with the proceeds from the sale of her premarital property and were her separate property and decedent husband's redemption of one of the CD's was in contravention of their separation agreement. Bradley v. Frank, 264 Ga. App. 772, 592 S.E.2d 138 (2003) (decided under former O.C.G.A. § 24-6-3).

Contract is not necessarily contained in a single paper, and law provides that all contemporaneous writings shall be admissible to explain each other. Manry v. Hendricks, 66 Ga. App. 442, 18 S.E.2d 97 (1941) (decided under former Code 1933, § 38-502).

Legal effect of two writings.

- If it takes both writings to make the real contract of the parties, the legal effect is the same as if one paper held the contents of the note and the contemporaneous writing. Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797 (1941) (decided under former Code 1933, § 38-502).

Terms of contract cannot be varied by parol.

- When a written contract is expressly entered into on terms and conditions expressed and stated in two papers which constituted but one entire written contract, a party cannot change such terms and conditions in the written contract and set up terms and conditions by parol which are contrary to the written terms. Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797 (1941) (decided under former Code 1933, § 38-502).

"Contemporaneous" means, literally, according to Webster, "living, existing, or occurring at the same time," but numerous authorities could be cited to the effect that the word does not connote perfect or absolute coincidence in point of time. One thing is contemporaneous with a given transaction when it is so related in point of time as reasonably to be said to be a part of such transaction. Manry v. Hendricks, 66 Ga. App. 442, 18 S.E.2d 97 (1941) (decided under former Code 1933, § 38-502).

Letters to explain note.

- When a promissory note did not express within itself the entire contract between the parties, but the remainder thereof was contained in letters written by the parties in connection with the making of the note, such letters were admissible in evidence in a suit between the maker and one who took the note after maturity. Marietta Sav. Bank v. Janes, 66 Ga. 286 (1881) (decided under former Code 1873, § 3801).

Documents properly construed together.

- Trial court correctly evaluated an asset purchase agreement between a buyer and the owners of a dialysis center, including a doctor's spouse, a covenant not to compete, and a medical director agreement between a doctor and a buyer, all signed the same day, together under former O.C.G.A. § 24-6-3 as related to the sale of a business as the doctor was integral to the continued success of the center, and the doctor's execution of the medical director agreement was integral to the execution of the asset purchase agreement. Martinez v. DaVita, Inc., 266 Ga. App. 723, 598 S.E.2d 334 (2004) (decided under former O.C.G.A. § 24-6-3).

In a breach of contract action arising from a guaranty agreement between a guarantor and a retail space owner, the trial court properly granted summary judgment in the owner's favor as the court properly construed contemporaneous written agreements, which were executed on the same date, at the same time, and at the same location, despite a misnomer contained therein, as such did not render the agreement unenforceable. Thus, it was not erroneous for the court to correct an obvious error in the agreement, specifically, the failure to substitute one entity's name for another as the parties intended, and interpret the guaranty accordingly. C.L.D.F., Inc. v. Aramore, LLC, 290 Ga. App. 271, 659 S.E.2d 695 (2008), cert. denied, No. S08C1224, 2008 Ga. LEXIS 668 (Ga. 2008) (decided under former O.C.G.A. § 24-6-3).

As the evidence supported a finding that the defendant freely and voluntarily consented to a special condition in a bond, allowing a warrantless search of the defendant's residence, denial of suppression with respect to drugs and a handgun seized during the search was proper as was the finding that the defendant had waived rights under U.S. Const., amend. IV; the special condition form was considered along with the bond order as the documents had been executed contemporaneously pursuant to former O.C.G.A. § 24-6-3(a). Curry v. State, 309 Ga. App. 338, 711 S.E.2d 314 (2011) (decided under former O.C.G.A. § 24-6-3).

Trial court erred in granting a flea market operator and a property owner summary judgment in their slander of title action against a real estate investment firm and the estate of the firm's sole member because there was a genuine issue of material fact as to whether the firm was a party to the sales contract entered into between the operator and the member since at the time the sales contract was executed contemporaneously with the promissory note and deed to secure debt, the member executed an affidavit of filing claiming specifically that the firm had a vested interest in the property pursuant to the sales contract; that affidavit was recorded along with the contract as an attachment, and the contemporaneous filings, considered together under former O.C.G.A. § 24-6-3, created an ambiguity as to whether the member signed the sales contract in a personal or corporate capacity. Shiva Mgmt., LLC v. Walker, 308 Ga. App. 878, 708 S.E.2d 710 (2011) (decided under former O.C.G.A. § 24-6-3).

Statute of frauds did not bar a landlord's claim on a guaranty because the guaranty identified the debt, and the assignment contemplated in the guaranty was documented by a written agreement; the guaranty and the assignment, along with an amendment, could be read together to determine whether the guaranty complied with the statute of frauds, and when read together the documents identified the principal debt as required by the statute of frauds. Patterson v. Bennett St. Props., 314 Ga. App. 896, 726 S.E.2d 147 (2012) (decided under former O.C.G.A. § 24-6-3).

Contract for sale of coal.

- When at the time of making a written contract for the sale of coal, the parties also executed a contemporaneous writing as to the kind of coal to be furnished, both writings should be considered together to determine the true intent of the parties. National Rosin Oil & Size Co. v. South Atl. Coal Co., 23 Ga. App. 87, 97 S.E. 559 (1918) (decided under former Civil Code 1910, § 5789).

Pleading contemporaneous writings.

- It is not intimated in law that in order for contemporaneous writings to be admitted in evidence, even though the writings may govern and control the contract, the writings must be pled in the plaintiff's petition. International Harvester Co. of Am. v. Morgan, 19 Ga. App. 716, 92 S.E. 35 (1917) (decided under former Civil Code 1910, § 5789).

Contemporaneous writings need not be cross-referenced.

- If all the necessary terms of an agreement are contained in signed contemporaneous writings, the statutory requirements and purpose of the statute of frauds have been met whether or not the writings are cross-referenced. Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874 (1984) (decided under former O.C.G.A. § 24-6-3); Harris v. Distinctive Builders, Inc., 249 Ga. App. 686, 549 S.E.2d 496 (2001);(decided under former O.C.G.A. § 24-6-3).

Language clear and unambiguous may not be contradicted by parol evidence of custom, surrounding circumstances, or intent. Daniel & Daniel, Inc. v. Cosmopolitan Co., 146 Ga. App. 200, 245 S.E.2d 885 (1978) (decided under former Code 1933, § 38-502).

When the words and phrases are not technical nor in any sense ambiguous, a witness cannot, as an expert or otherwise, give the witness's opinion of the meaning of the instrument. Chero-Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656, 116 S.E. 325 (1923) (decided under former Civil Code 1910, § 5789).

Parol evidence inadmissible in unambiguous contract.

- Rule that the construction put upon the contract by the parties before or after the contract's execution may be considered in arriving at the contract's true meaning does not apply to an unambiguous contract. Alexander Film Co. v. Brittain, 63 Ga. App. 384, 11 S.E.2d 66 (1940) (decided under former Code 1933, § 38-502).

If the provisions of a deed to land are plain and unambiguous, parol evidence is not admissible for the purpose of showing an intent at variance with the plain terms of the deed. Rowland v. Sumner, 201 Ga. 317, 39 S.E.2d 655 (1946) (decided under former Code 1933, § 38-502).

In the absence of fraud, parol evidence is not admissible to overcome the express unambiguous language of a contract. Wilson v. Sheppard, 136 Ga. App. 475, 221 S.E.2d 671 (1975) (decided under former Code 1933, § 38-502).

Parol evidence cannot be employed to add to, take from, or vary the terms of the written instrument. R.C. Craig, Ltd. v. Ships of Sea, Inc., 401 F. Supp. 1051 (S.D. Ga. 1975) (decided under former Code 1933, § 38-502) Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138 (1980);(decided under former Code 1933, § 38-502).

When the contract is complete on the contract's face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, parol evidence should not be admitted. American Cyanamid Co. v. Ring, 248 Ga. 673, 286 S.E.2d 1 (1982) (decided under former O.C.G.A. § 24-6-3).

"Ambiguity" defined.

- "Ambiguity" is defined as duplicity, indistinctness, an uncertainty of meaning or expression. Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800, 55 S.E. 923 (1906) (decided under former Civil Code 1895, § 5202); Wood v. Phoenix Ins. Co., 199 Ga. 461, 34 S.E.2d 688 (1945);(decided under former Code 1933, § 38-502).

"Ambiguity" also signifies doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations. Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800, 55 S.E. 923 (1906) (decided under former Civil Code 1895, § 5202).

Ambiguity refers to words or phrases of duplicitous, indistinct, or uncertain meanings which may fairly be understood in more ways than one. Contractors Mgt. Corp. v. McDowell-Kelley, Inc., 136 Ga. App. 116, 220 S.E.2d 473 (1975) (decided under former Code 1933, § 38-502).

Intent of parties.

- If a written contract is ambiguous as to the intention of the parties, evidence, otherwise competent, of acts and transactions between the parties, tending to show the construction the parties themselves put upon the agreement when the agreement was executed, whether occurring prior to or subsequently to the execution of the contract, is admissible. Armistead v. McGuire, 46 Ga. 232 (1872) (decided under former Code 1868, § 3748); Georgia Iron & Coal Co. v. Ocean Accident & Guarantee Corp., 133 Ga. 326, 65 S.E. 775 (1909);(decided under former Civil Code 1895, § 5202).

Even if the instrument is ambiguous, the testimony of one party as to that party's intent, undisclosed to the other, is not competent. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515, 173 S.E. 408 (1934) (decided under former Code 1933, § 38-502).

If the language of the contract defining what interest the petitioners were buying is ambiguous, the court does not err in admitting testimony of the petitioners of what the petitioners thought the petitioners were buying. Manning v. Carroll, 204 Ga. 100, 48 S.E.2d 737 (1948), later appeal, 206 Ga. 158, 56 S.E.2d 278 (1949) (decided under former Code 1933, § 38-502).

Through the proper admission of parol evidence, the intent of the parties can be determined and any ambiguity present can be resolved by the jury in the trial. Wright v. Piedmont Eng'r & Constr. Corp., 106 Ga. App. 401, 126 S.E.2d 865 (1962) (decided under former Code 1933, § 38-502).

If a release is ambiguous on the question of whether a plaintiff released a defendant from claims arising out of defendant's relationship with a corporation, parol evidence may be introduced on the issue of the parties' intent. Southern Stone Co. v. Singer, 665 F.2d 698 (5th Cir. 1982) (decided under former O.C.G.A. § 24-6-3).

Trial court was authorized to construe the commercial lease and the shareholder buyout agreements between a lessor and a lessee together as multiple documents executed during the course of a single transaction; in so doing, the court's finding that the agreement was linked to the lease's 10-year term upheld the contract as a whole, reflected the parties' intent as expressed in the testimony and documentary evidence offered at trial, and was supported by all the attendant and surrounding circumstances proved in this case. Allen v. Harkness Stone Co., 271 Ga. App. 397, 609 S.E.2d 647 (2004) (decided under former O.C.G.A. § 24-6-3).

Contract of goods over $50.00.

- Law applies to a contract of goods over $50.00, even in view of the statute of frauds. Wilson v. Coleman & Ray, 81 Ga. 297, 6 S.E. 693 (1888) (decided under former Code 1882, § 3801).

Contract with contradictory terms.

- When a contract embodied in two separate written instruments, simultaneously executed and delivered, contains contradictory and ambiguous terms, parol evidence is admissible to explain the contradiction and remove the ambiguity. Cable Co. v. McFeeley, 7 Ga. App. 435, 66 S.E. 1103 (1910) (decided under former Civil Code 1895, § 5202).

When the clause of sales contract referring to the amount of the purchase price is rendered ambiguous by contradictory statements as to the amount, the trial judge does not err in permitting defendant purchaser to testify, in explanation of the ambiguity, that at the time the defendant entered into the contract, the defendant had a conversation with the seller's agent and that it was distinctly understood that the items of insurance, carrying charges, and interest were included. Wood v. Phoenix Ins. Co., 199 Ga. 461, 34 S.E.2d 688 (1945) (decided under former Code 1933, § 38-502).

If a written contract incorporates an ambiguous condition, parol evidence is admissible to aid in the construction of the condition. Columbia Nitrogen Corp. v. Dean's Power Oil Co., 136 Ga. App. 879, 222 S.E.2d 602 (1975) (decided under former Code 1933, § 38-502).

Effect of "whole agreement" clause in contract.

- If a contract is in fact ambiguous as to some matters, a stipulation in the contract to the effect that the contract expresses "the whole agreement" and that there is no agreement or modification of any kind in connection therewith that is not expressly set forth therein, will not prevent explanation in the usual manner. Wood v. Phoenix Ins. Co., 199 Ga. 461, 34 S.E.2d 688 (1945) (decided under former Code 1933, § 38-502); Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874 (1984);(decided under former O.C.G.A. § 24-6-3).

Descriptions in instruments.

- If, for want of fullness of statement, the writing be indefinite or uncertain, parol evidence is admissible, not to vary, add to, or take from the writing, but to explain and so illuminate the writing as to make the real intention of the parties apparent. So parol evidence is admissible to explain ambiguous descriptive terms in a written instrument and to apply the same to their subject matter. Georgia Iron & Coal Co. v. Ocean Accident & Guarantee Corp., 133 Ga. 326, 65 S.E. 775 (1909) (decided under former Civil Code 1895, § 5202). Walnut Creek Milling Co. v. Smith Bros. Co., 178 Ga. 341, 173 S.E. 95 See also, 49 Ga. App. 116, 174 S.E. 255 (1934), answer conformed to,(decided under former Code 1933, § 38-502).

Names.

- When a grant was issued to a name and there was no such person, this made a case of latent ambiguity, and aliunde evidence was admissible to show who was the person meant. Bowen v. Slaughter, 24 Ga. 338, 71 Am. Dec. 135 (1858) (decided under former law).

It is admissible to apply, by parol testimony, the description given in an instrument so as to ascertain the particular person or persons intended to be embraced in that description. Indeed, parol evidence is admissible to explain all such ambiguities. Houston v. Bryan, 78 Ga. 181, 1 S.E. 252, 6 Am. St. R. 252 (1887) (decided under former Code 1882, § 3801).

Parol evidence admissible for goods.

- Parol evidence was admissible to show that contract for sale of "Snoflour" contemplated a grade of flour equal to another brand with which the vendee was familiar. Walnut Creek Milling Co. v. Smith Bros. Co., 178 Ga. 341, 173 S.E. 95, answer conformed to, 49 Ga. App. 116, 174 S.E. 255 (1934) (decided under former Code 1933, § 38-502).

Receipts.

- Parol evidence was admissible to show whether the parties intended the receipt given to the defendant by the assignee of the leased contract, to be a settlement of all future liability of the defendants for rent, or was only meant as a discharge of whatever the assignee could claim by the transfer to them, and was not to affect the rights of the lessor under a reassignment of the lease to the lessor. Bell v. Boyd & Brumby, 53 Ga. 643 (1875) (decided under former Code 1873, § 3801).

Whether a receipt of a promissory note amounts to the payment of a preexisting debt depends upon the intention of the parties. If such intention can be gathered with certainty from the papers themselves, resort need not be had to the attending circumstances. If the papers are ambiguous, parol evidence is admissible to establish intent. Hall's Self-Feeding Cotton Gin Co. v. Black, 71 Ga. 450 (1883) (decided under former Code 1882, § 3801).

Receipt in full given by the administrator de bonis non with the will annexed, to the administratrix of the deceased executor, was open to explanation in view of the parol evidence rule. Watts v. Baker, 78 Ga. 622, 3 S.E. 773 (1887) (decided under former Code 1882, § 3801).

Release.

- Parol evidence is admissible to explain ambiguous language in a release. In determining the existence of an ambiguity in a release, reference is permitted only to the face of the document. Southern Stone Co. v. Singer, 665 F.2d 698 (5th Cir. 1982) (decided under former O.C.G.A. § 24-6-3).

Bill of sale.

- Court erred in admitting parol evidence that a "bill of sale" was not intended to transfer ownership of a boat, the bill being executed on the regular required Coast Guard form, and all language therein relating to a sale and conveyance, the other provisions merely relating to the method of payment. Peterson v. Lexington Ins. Co., 753 F.2d 1016 (11th Cir. 1985) (decided under former O.C.G.A. § 24-6-3).

Construction of insurance policy is for the court, generally. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981) (decided under former Code 1933, § 38-502).

Auctioneer's memorandum of sale.

- Rule as to the admissibility of parol evidence to explain a patent ambiguity in a deed to land applies with equal force to an auctioneer's memorandum of the sale of land. Mohr v. Dillon, 80 Ga. 572, 5 S.E. 770 (1888) (decided under former Code 1882, § 3801); Wilson v. Coleman & Ray, 81 Ga. 297, 6 S.E. 693 (1888);(decided under former Code 1882, § 3801).

Submission to award.

- Ambiguities in a submission to award which describes the subject matter of controversy are explainable by parol evidence. Riley v. Hicks, 81 Ga. 265, 7 S.E. 173 (1888) (decided under former Code 1882, § 3801).

Whether lease included in contract.

- Parol evidence was admissible to explain an ambiguity as to whether the lease of a building was also included in the terms of the contract sued on. Vaughn v. Castleberry, 24 Ga. App. 496, 101 S.E. 299 (1919) (decided under former Civil Code 1910, § 5789).

Lease ambiguous as to time may be explained by parol. Carmichael v. Brown, 97 Ga. 486, 25 S.E. 357 (1895) (decided under former Code 1882, § 3801).

If the date of an entry is uncertain because of illegibility of the handwriting, this would constitute an ambiguity, and make a jury question. Bolton v. Keys, 38 Ga. App. 573, 144 S.E. 406 (1928) (decided under former Civil Code 1910, § 5789).

Phrase "value received".

- Expression, "value received," is a patent ambiguity, and the expression may be explained, and failure of consideration shown by parol. Pitts v. Allen, 72 Ga. 69 (1883) (decided under former Code 1882, § 3801); Waller v. Martin-Senour Co., 45 Ga. App. 808, 166 S.E. 53 (1932); Building Assocs. v. Crider, 141 Ga. App. 825, 234 S.E.2d 666 (1977) (decided under former Civil Code 1910, § 5789);(decided under former Code 1933, § 38-502).

Phrase "as hereafter agreed".

- One clause in a written contract providing for the payment of a certain sum "as hereafter agreed," parol evidence was admissible to explain the ambiguity, and to show not only the date but the conditions, if any, on which such payment was to be made. Morrison v. Dickey, 119 Ga. 698, 46 S.E. 863 (1904) (decided under former Civil Code 1895, § 5202). Morrison v. Dickey, 122 Ga. 417, 50 S.E. 178 (1905) See also (decided under former Civil Code 1895, § 5202).

Phrase "good cotton".

- Term "good cotton" was subject to parol explanation to show the term's meaning as used in the contract. Ford & Co. v. Lawson, 133 Ga. 237, 65 S.E. 444 (1909) (decided under former Civil Code 1895, § 5202).

Determining meaning of ambiguous language.

- If the language of an instrument in writing is ambiguous and may be fairly understood in more ways than one, it should be taken in the sense put upon it by the parties at the time of its execution, and the court will hear evidence as to the facts and surroundings, and decree according to the truth of the matter. Irwin v. Young, 212 Ga. 1, 90 S.E.2d 22 (1955) (decided under former Code 1933, § 38-502).

Unpriced, unexecuted damages provision.

- In a claim for damages resulting from delays in the performance of a construction contract, parol evidence was relevant to construe the intent of the parties to incorporate and be bound by an unexecuted contract form containing an unpriced damages provision. Atlanta Economic Dev. Corp. v. Ruby-Collins, Inc., 206 Ga. App. 434, 425 S.E.2d 673 (1992) (decided under former O.C.G.A. § 24-6-3).

Parol evidence inadmissible for guaranty.

- Lessor was not entitled to recover on an equipment lease guaranty because the guaranty was unenforceable since the guaranty omitted essential elements and under former O.C.G.A. § 24-6-3(a) the lease could not supply the missing elements since this required consideration of parol evidence, which was inadmissible for a contract required by the statute of frauds to be in writing. Dabbs v. Key Equip. Fin., Inc., 303 Ga. App. 570, 694 S.E.2d 161 (2010) (decided under former O.C.G.A. § 24-6-3).

Consent judgment.

- Trial court erred in determining that a corporation was not a party to a consent judgment because the consent judgment was ambiguous, and the provision stating that judgment was not entered against the corporation "at this time" since the corporation was in bankruptcy implied that the entry of judgment was contemplated at a later time; the surrounding circumstances showed that the corporation filed a dismissal of the corporation's counterclaim with prejudice contemporaneously with the filing of the consent judgment, thereby manifesting an understanding that the corporation was included in, and obligated by, the consent judgment, and the corporation was listed as a defendant in the style of the case on the face of the consent judgment. Duke Galish, LLC v. Manton, 308 Ga. App. 316, 707 S.E.2d 555 (2011) (decided under former O.C.G.A. § 24-6-3).

Effect of part performance.

- Acceptance of the benefits and part performance of the contract by plaintiff would preclude the defendant from attacking the alleged oral portion of a contract which appeared to be an explanation of the entire contract rather than conflicting with any written provisions. Consumers Fin. Corp. v. Lamb, 217 Ga. 359, 122 S.E.2d 101 (1961) (decided under former Code 1933, § 38-502).

Contract not ambiguous.

- See McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945) (timber lease) (decided under former Code 1933, § 38-502).

Integration clause precluded consideration of parol evidence.

- Court of appeals could not consider parol evidence to add to, take from, contradict, or vary an assignment contract containing the terms of an estoppel certificate because the contract's integration clause provided that the consent to assignment and all its exhibits, including the estoppel certificate, constituted the entire agreement of the parties and that all prior understandings and agreements among the parties concerning the matters were merged into the consent. Fundus Am. (Atlanta) L.P. v. RHOC Consolidation, LLC, 313 Ga. App. 118, 720 S.E.2d 176 (2011) (decided under former O.C.G.A. § 24-6-3).

Writings in Real Estate Transactions

Admissibility of parol evidence of site plan to show nonexistence of use restriction.

- In a land use restriction action, a trial court erred by failing to consider a 1997 site plan, which allowed the parties to seek to amend the use of the land at issue and future development of the land; therefore, the trial court erred in enjoining a developer from constructing condominium towers since no such use restriction existed. CPI Phipps, LLC v. 100 Park Ave. Partners, L.P., 288 Ga. App. 614, 654 S.E.2d 690 (2007), cert. denied, No. S08C0618, 2008 Ga. LEXIS 286 (Ga. 2008) (decided under former O.C.G.A. § 24-6-3).

Dates on multiple real estate documents.

- Note, warranty deed, and agreement concerning a real estate transaction were all dated on the same day; therefore, the note and deed could be considered to establish the missing property description in the agreement. Owenby v. Holley, 256 Ga. App. 13, 567 S.E.2d 351 (2002) (decided under former O.C.G.A. § 24-6-3).

Deed construed with petition.

- Deed by a wife to her husband was construed together with a petition that she be allowed to execute the deed. McCreary v. Gewinner, 103 Ga. 528, 29 S.E. 960 (1898) (decided under former Civil Code 1895, § 5202).

Use restriction in easement not applicable to deeds.

- As there were no restrictions on use in warranty deeds that a property owner conveyed to a city, a restrictive use that was in a contemporaneously-executed easement could not be imposed on the deeds pursuant to former O.C.G.A. § 24-6-3(a). White House Inn & Suites, Inc. v. City of Warm Springs, 285 Ga. 322, 676 S.E.2d 178 (2009) (decided under former O.C.G.A. § 24-6-3).

Description in lease.

- If a lease contains a general descriptive phrase, the meaning of which was presumably well known to both the contracting parties, parol evidence is admissible for the purpose of applying the description to the subject matter, but any attempt to prove that at the time of the execution of the contract the parties had an oral understanding as to the meaning of such phrase would clearly violate the statute of frauds, as well as the parol evidence rule. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947) (decided under former Code 1933, § 38-502).

Descriptions in real property transactions.

- If there is a discrepancy as to a party's name in a plat and grant, this is a patent ambiguity and explainable by parol evidence. Ferrell v. Hurst, 68 Ga. 132 (1881) (decided under former Code 1873, § 3801).

If the description in a deed is ambiguous but sufficient to furnish a key to the boundary, extrinsic evidence may be used to correctly apply the description to the true boundary intended by the parties. Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438 (1945) (decided under former Code 1933, § 38-502).

When the descriptive averments contained in a deed are sufficient to furnish a key whereby the land which the grantor intended to convey may be ascertained, parol evidence which does not add to, enlarge, or in any way change the description is admissible for the purpose of identifying the conveyed land. Gainsville M.R.R. v. Tyner, 204 Ga. 535, 50 S.E.2d 108 (1948) (decided under former Code 1933, § 38-502). Haygood v. Duncan, 204 Ga. 540, 50 S.E.2d 214 (1948) See also (decided under former Code 1933, § 38-502).

If a property description in a written contract is ambiguous, in that it can be interpreted as referring to more than one piece of property, parol evidence is admissible to explain the ambiguity and the contract is not rendered unenforceable for vagueness. Tuggle v. Wilson, 248 Ga. 335, 282 S.E.2d 110 (1981) (decided under former Code 1933, § 38-502).

Claim of title in deed.

- Any ambiguities in a deed may be explained by parol, if the evidence can be applied to elucidate the claim of title. Daniels v. Cagle, 180 Ga. 853, 181 S.E. 178 (1935) (decided under former Code 1933, § 38-502).

RESEARCH REFERENCES

Am. Jur. 2d.

- 17A Am. Jur. 2d, Contracts, §§ 329 et seq., 350, 356. 29A Am. Jur. 2d, Evidence, § 1145 et seq.

C.J.S.

- 32A C.J.S., Evidence, §§ 1207, 1221, 1246, 1248, 1265, 1266.

ALR.

- Admissibility of parol evidence as to amount of commodity specified in written contract of sale, 8 A.L.R. 747.

Parol evidence as to whether one whose name appears on the face of a note signed as a witness or as maker, 15 A.L.R. 197.

Parol evidence rule as applied to lease, 25 A.L.R. 787; 88 A.L.R. 1380; 151 A.L.R. 279.

Admissibility of parol evidence to explain ambiguity in description of land in deed or mortgage, 68 A.L.R. 4.

"Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Admissibility of parol evidence to show whether particular word or phrase was intended to connote a chattel mortgage or conditional sale, 101 A.L.R. 625.

Rule that latent ambiguities may be explained by parol evidence but that patent ambiguities may not, 102 A.L.R. 287.

Admissibility of oral or extrinsic evidence on question of liability on bill of exchange, promissory note, or other contract where signature is followed by word or abbreviation which may be either descriptive or indicative of contracting character, 113 A.L.R. 1364.

Election by beneficiary to take under or against will as predictable upon initiation of, or participation in, court proceedings, 166 A.L.R. 316.

Extrinsic evidence regarding character and size of trees contemplated by written timber contract or lease, 173 A.L.R. 518.

Parol evidence to show duration of written contract for support or maintenance, 14 A.L.R.2d 897.

Admissibility of parol evidence to connect signed and unsigned documents relied upon as memorandum to satisfy statute of frauds, 81 A.L.R.2d 991.

Wills: admissibility of extrinsic evidence to determine whether fee or absolute interest, or only estate for life or years, was given, 21 A.L.R.3d 778.

The parol evidence rule and admissibility of extrinsic evidence to establish and clarify ambiguity in written contract, 40 A.L.R.3d 1384.

Admissibility of parol evidence to show whether guaranty of corporation's obligation was signed in officer's representative or individual capacity, 70 A.L.R.3d 1276.

24-3-4. Circumstances surrounding execution of contracts.

The surrounding circumstances shall always be proper subjects of proof to aid in the construction of contracts.

(Code 1981, §24-3-4, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Law reviews.

- For article, "Supplementing Written Agreements: Restating the Parol Evidence Rule in Terms of Credibility and Relative Fault," see 34 Emory L.J. 93 (1985).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3727, former Code 1868, § 3751, former Code 1873, § 3804, former Code 1882, § 3804, former Civil Code 1895, § 5205, former Civil Code 1910, § 5792, former Code 1933, § 38-505, and former O.C.G.A. § 24-6-4 are included in the annotations for this Code section.

When former statute applied.

- Former statute applied only if a contract was of doubtful meaning; but a plain and unambiguous contract cannot be contradicted by parol. Ward v. Campbell, 73 Ga. 97 (1884) (decided under former Code 1882, § 3804); Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138 (1980);(decided under former Code 1933, § 38-505).

Ambiguities are explainable by the surrounding circumstances. Armistead v. McGuire, 46 Ga. 232 (1872) (decided under former Code 1868, § 3751); National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515, 173 S.E. 408 (1934);(decided under former Code 1933, § 38-505).

When the language of the written instrument may be fairly understood in more ways than one, it should be taken in the sense put upon it by the parties at the time of its execution, and the court will hear evidence as to the facts and surroundings. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515, 173 S.E. 408 (1934) (decided under former Code 1933, § 38-505); Irwin v. Young, 212 Ga. 1, 90 S.E.2d 22 (1955);(decided under former Code 1933, § 38-505).

Circumstances accompanying making of note.

- Parol evidence was admissible to show the circumstances under which notes were made, and to explain the consideration and show the year in which the consideration appearing on the face of the notes was actually advanced. Anderson v. Brown, 72 Ga. 713 (1884) (decided under former Code 1882, § 3804); Camp v. Matthews, 143 Ga. 393, 85 S.E. 196 (1915);(decided under former Civil Code 1910, § 5792).

Admissibility of parol evidence of site plan to show nonexistence of use restriction.

- In a land use restriction action, a trial court erred by failing to consider a 1997 site plan, which allowed the parties to seek to amend the use of the land at issue and future development of the land; therefore, the trial court erred in enjoining a developer from constructing condominium towers since no such use restriction existed. CPI Phipps, LLC v. 100 Park Ave. Partners, L.P., 288 Ga. App. 614, 654 S.E.2d 690 (2007), cert. denied, No. S08C0618, 2008 Ga. LEXIS 286 (Ga. 2008) (decided under former O.C.G.A. § 24-6-4).

Improper admission.

- If surrounding circumstances were improperly admitted, it was harmless error since substantially the same facts had already been established by the evidence of the plaintiff. Wells v. Gress, 118 Ga. 566, 45 S.E. 418 (1903) (decided under former Civil Code 1895, § 5205).

RESEARCH REFERENCES

Am. Jur. 2d.

- 17A Am. Jur. 2d, Contracts, § 351 et seq. 29A Am. Jur. 2d, Evidence, §§ 1112, 1150, 1151.

ALR.

- Parol evidence rule; right to show fraud in inducement or execution of written contract, 56 A.L.R. 13.

Competency of parol evidence to vary, contradict, or add to terms of ticket or token issued by carrier for transportation or accommodation of passenger, 62 A.L.R. 655.

"Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Admissibility of parol evidence to show that a bill or note was conditional, or given for a special purpose, 105 A.L.R. 1346.

Admissibility of subsequent declarations of settlor to aid interpretation of trust, 51 A.L.R.2d 820.

Admissibility of evidence of value or extent of decedent's estate in action against estate for reasonable value of services furnished decedent, 65 A.L.R.2d 945.

Admissibility of oral evidence to show that a writing was a sham agreement not intended to create legal relations, 71 A.L.R.2d 382.

Admissibility of parol evidence to connect signed and unsigned documents relied upon as memorandum to satisfy statute of frauds, 81 A.L.R.2d 991.

24-3-5. Known usage.

Evidence of known and established usage shall be admissible to aid in the construction of contracts as well as to annex incidents.

(Code 1981, §24-3-5, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3728, former Code 1868, § 3752, former Code 1873, § 3805, former Code 1882, § 3805, former Civil Code 1895, § 5206, former Civil Code 1910, § 5793, former Code 1933, § 38-506, and former O.C.G.A. § 24-6-5 are included in the annotations for this Code section.

To make a proof of a custom as such proper testimony, it should appear by the proof itself that such custom is a general one, and that it is so well known and recognized within the sphere of the custom's operation, as to be usually considered a part of all contracts made in that particular locality in business transactions to which such custom relates. Hardeman v. English, 79 Ga. 387, 5 S.E. 70 (1887) (decided under former Code 1882, § 3805).

Custom can only be proved by word of mouth from the men engaged in the business. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955) (decided under former Code 1933, § 38-506).

Evidence thereof is necessarily in parol. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955) (decided under former Code 1933, § 38-506).

Testimony of custom as matter of fact.

- If a witness is shown to have knowledge of a custom, the witness can state what it is, not as a matter of opinion or law, but as a fact. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804 (1916) (decided under former Civil Code 1910, § 5793).

Custom is inadmissible when agreement is unambiguous.

- Custom or usage, while admissible to explain an ambiguous written agreement, is inadmissible if repugnant to or inconsistent with a clear, express agreement. Stamey v. Western Union Tel. Co., 92 Ga. 613, 18 S.E. 1008, 44 Am. St. R. 95 (1894) (decided under former Code 1882, § 3805).

When the intent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant and unavailing. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79 (1932) (decided under former Civil Code 1910, § 5793); TBS v. Europe Craft Imports, Inc., 186 Ga. App. 286, 367 S.E.2d 99 (1988);(decided under former O.C.G.A. § 24-6-5).

While proof of a custom is sometimes admissible to aid in the construction of a contract, such proof is not admissible when the contract is clear and unambiguous. Atlantic Fertilizer Co. v. Southern States Phosphate & Fertilizer Co., 53 Ga. App. 798, 187 S.E. 237 (1936) (decided under former Code 1933, § 38-506).

Law cannot be changed.

- Custom may sometimes be invoked as entering into a contract or supplying incidents, but not to change the law. Fidelity & Deposit Co. v. Butler, 130 Ga. 225, 60 S.E. 851, 16 L.R.A. (n.s.) 994 (1908) (decided under former Civil Code 1895, § 5206); Happ Bros. Co. v. Hunter Mfg. & Comm'n Co., 145 Ga. 836, 90 S.E. 61 (1916);(decided under former Civil Code 1910, § 5793).

Usage cannot make a contract when there is none nor prevent the effect of the settled rules of law. Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79 (1932) (decided under former Civil Code 1910, § 5793).

In the absence of knowledge of the existence of the custom, it cannot be said that there was any meeting of the minds on this item. Franco v. Bank of Forest Park, 118 Ga. App. 700, 165 S.E.2d 593 (1968) (decided under former Code 1933, § 38-506).

If there was no evidence tending to show a contract by known and established usage, it was error to charge on known usage or custom. Craig v. Augusta Roofing & Metal Works, Inc., 78 Ga. App. 514, 51 S.E.2d 565 (1949) (decided under former Code 1933, § 38-506).

Signing other party's name to contract.

- It was not admissible to show that it was the custom in a particular business for one party making sales, or its agent representing it in such a transaction, to sign the name of the other party to a contract therefor, so as to bind the latter. Happ Bros. Co. v. Hunter Mfg. & Comm'n Co., 145 Ga. 836, 90 S.E. 61 (1916) (decided under former Civil Code 1910, § 5793).

Time of performance of contract.

- Usage in business as to time of performance of contract for services is admissible in suit for breach thereof. Beck v. Thompson & Taylor Spice Co., 108 Ga. 242, 33 S.E. 894 (1899) (decided under former Civil Code 1895, § 5206).

Customs of warehousemen.

- On the trial of a suit against warehousemen to recover the value of certain cotton which had been burned, and which plaintiff alleged the warehousemen had agreed to keep insured for plaintiff's benefit, but had failed to do so, proof, in their behalf, that it was their custom to insure cotton only to the extent of the advances the warehousemen had made thereon and for the warehousemen's own benefit, unless instructed by the customer to insure for full value, was primarily inadmissible; but after testimony had been allowed, without objection, in favor of plaintiff, tending to show it was the warehousemen's custom to insure cotton on which the warehousemen had made advances to its full value, such proof was properly admitted. Hardeman v. English, 79 Ga. 387, 5 S.E. 70 (1887) (decided under former Code 1882, § 3805).

If a general custom existed on the part of the warehouses in a certain municipality to insure to its full value the cotton of patrons stored with them with the necessary characteristics, patrons who stored cotton with one of such warehousemen, knowing of the custom, and relying upon the custom, can assert a duty on the part of such warehouseman to so insure one's cotton. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804 (1916) (decided under former Civil Code 1910, § 5793).

It was not necessary that a witness should be a warehouseman in order to have sufficient knowledge to render the witness competent to testify as to the existence of such usage or custom among the warehouses of a particular town or city. If a person has been accustomed to deal with such warehouses, and to deposit cotton with those warehouses, so as to know those warehouses usage or custom on that subject, the witness was competent to testify as to that usage or custom. Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 87 S.E. 804 (1916) (decided under former Civil Code 1910, § 5793).

Customs of insurance companies.

- It was well settled that insurers were bound to know the customs of a place where insurers transact business; and were assumed to have made contracts in reference to such customs. Todd v. German-American Ins. Co., 2 Ga. App. 789, 59 S.E. 94 (1907) (decided under former Civil Code 1895, § 5206).

In this state, when life insurance companies deal with the assured for a time sufficient to make it their usage and custom to give notice to the assured of the date when the premiums fall due, and fail to give notice thereof, the policy will not be forfeited if, within a period so reasonably short as to show an intent to continue one's policy, the assured take steps to inquire and pay the premium. Grant v. Alabama Gold Life Ins. Co., 76 Ga. 575 (1886) (decided under former Code 1882, § 3805).

Cited in Dulcio v. State, 292 Ga. 645, 740 S.E.2d 574 (2013); Garcia-Carrillo v. State, 322 Ga. App. 439, 746 S.E.2d 137 (2013); Hernandez-Garcia v. State, 322 Ga. App. 455, 745 S.E.2d 706 (2013); Folston v. State, 294 Ga. 778, 755 S.E.2d 803 (2014); Lawrence v. State, 342 Ga. App. 396, 802 S.E.2d 859 (2017), cert. denied, No. S18C0094, 2018 Ga. LEXIS 322 (Ga. 2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, §§ 1112, 1151, 1154 et seq.

C.J.S.

- 32A C.J.S., Evidence, § 1207.

ALR.

- "Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Validity and construction of "zoning with compensation" regulation, 41 A.L.R.3d 636.

24-3-6. Rebuttal of equity; discharge of contract; proof of subsequent agreement; change of time or place of performance.

Parol evidence shall be admissible to rebut an equity, to discharge an entire contract, to prove a new and distinct subsequent agreement, to enlarge the time of performance, or to change the place of performance.

(Code 1981, §24-3-6, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Discharge of Contract

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3729, former Code 1868, § 3753, former Code 1873, § 3806, former Code 1882, § 3806, former Civil Code 1895, § 5207, former Civil Code 1910, § 5794, former Code 1933, § 38-507, and former O.C.G.A. § 24-6-6 are included in the annotations for this Code section.

Plea of accord and satisfaction may be supported by parol evidence that the notes sued on were paid in full and satisfied by the surrender of the property described in the mortgage deed (given to secure the debt) in full and complete satisfaction of the debt; that the owner and holder of the note accepted the property in settlement of the notes sued on; and that the settlement was beneficial to the then owners and the holders of the notes, in that it enabled the owners to obtain property without the expense of foreclosure. Butts v. Maryland Cas. Co., 52 Ga. App. 838, 184 S.E. 774 (1936) (decided under former Code 1933, § 38-507).

Subsequent Agreement

Admissible testimony generally.

- When there is strong presumptive evidence that, subsequently to the execution of a written contract, the parties agreed orally upon a new contract, which was a modification of the former, testimony may be received of negotiations and conversations between these parties previous to the written contract for the purpose of throwing light upon, and showing more clearly, the nature and character of the subsequent agreement. Collins v. Lester, 16 Ga. 410 (1954) (decided under former Code 1933, § 38-507).

Agreement must be based on valuable consideration.

- While parol evidence was admissible to prove a new and distinct agreement subsequent to the original written contract in reference to the same subject matter, such new agreement must be based upon a valuable consideration. Phelps v. Belle Isle, 29 Ga. App. 571, 116 S.E. 217 (1923) (decided under former Civil Code 1910, § 5794); Guthrie v. Rowan, 34 Ga. App. 671, 131 S.E. 93 (1925); Moon Motor Car Co. v. Savannah Motor Car Co., 41 Ga. App. 231, 152 S.E. 611 (1930) (decided under former Civil Code 1910, § 5794); Alexander Film Co. v. Brittain, 63 Ga. App. 384, 11 S.E.2d 66 (1940); P & O Mach. Works, Inc. v. Pollard, 115 Ga. App. 96, 153 S.E.2d 631 (1967) (decided under former Civil Code 1910, § 5794); American Century Mtg. Investors v. Bankamerica Realty Investors, 246 Ga. 39, 268 S.E.2d 609 (1980); Llop v. National Bank, 154 Ga. App. 504, 268 S.E.2d 777 (1980) (decided under former Code 1933, § 38-507);(decided under former Code 1933, § 38-507);(decided under former Code 1933, § 38-507);(decided under former Code 1933, § 38-507).

Agreement must embody essentials of new contract. Phelps v. Belle Isle, 29 Ga. App. 571, 116 S.E. 217 (1923) (decided under former Civil Code 1910, § 5794); Guthrie v. Rowan, 34 Ga. App. 671, 131 S.E. 93 (1925);(decided under former Civil Code 1910, § 5794).

All previous verbal negotiations respecting a sale were merged in the subsequently written contract, and it was not permissible to prove a prior or contemporaneous parol agreement which had the effect of varying the terms of the written contract. Cottle v. Tomlinson, 192 Ga. 704, 16 S.E.2d 555 (1941) (decided under former Code 1933, § 38-507).

Agreement to give collateral security.

- Parol agreement of parties subsequent to the execution of a contract of sale that the purchaser would turn over to the vendor a certain paper as collateral security was admissible. Loveless v. Bridges, 136 Ga. 338, 71 S.E. 166 (1911) (decided under former Civil Code 1910, § 5794).

Agreement as to time of delivery.

- When a written contract for the purchase and sale of goods fixed no time for performance, it will be construed as implying that delivery will be made and accepted within a reasonable time, but parol evidence was admissible to prove a new and distinct subsequent agreement, mutually acted upon, that the deliveries would be made in installments at certain stated intervals. Breman v. Rodbell, 31 Ga. App. 358, 120 S.E. 697 (1923) (decided under former Civil Code 1910, § 5794).

Evidence of agreement to rescind contract held admissible.

- See Manry v. Selph, 77 Ga. App. 808, 50 S.E.2d 27 (1948) (decided under former Code 1933, § 38-507); Flatauer v. Goodman, 84 Ga. App. 881, 67 S.E.2d 794 (1951);(decided under former Code 1933, § 38-507).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, § 1125.

C.J.S.

- 32A C.J.S., Evidence, § 1213 et seq.

ALR.

- "Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Provision in sale contract to effect that only conditions incorporated therein shall be binding, 127 A.L.R. 132; 133 A.L.R. 1360.

Performance of work previously contracted for as consideration for promise to pay greater or additional amount, 12 A.L.R.2d 78; 85 A.L.R.3d 259.

Application of parol evidence rule in action on contract for architect's services, 69 A.L.R.3d 1353.

Enforceability of voluntary promise of additional compensation because of unforeseen difficulties in performance of existing contract, 85 A.L.R.3d 259.

24-3-7. Proof of mistake in deed or written contract.

Parol evidence shall be admissible to prove a mistake in a deed or any other contract required by law to be in writing.

(Code 1981, §24-3-7, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3063, former Code 1873, § 3118, former Code 1882, § 3118, former Civil Code 1895, § 3975, former Civil Code 1910, § 4572, former Code 1933, § 38-510, and former O.C.G.A. § 24-6-7 are included in the annotations for this Code section.

In general.

- If the description in a deed is unambiguous, extrinsic evidence cannot be resorted to, except for the purpose of reforming the deed so as to make the deed express the real intention of the parties and correct a mutual mistake of fact. Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438 (1945) (decided under former Code 1933, § 38-510).

Resort to parol evidence is necessary to reform an instrument.

- Written instrument is evidence of what the parties intend to do; but when a party seeks information of an instrument, the instrument is not the best evidence in such controversy. The very purpose of resorting to parol evidence is to contradict the instrument. Nelson v. Spence, 129 Ga. 35, 58 S.E. 697 (1907) (decided under former Civil Code 1895, § 3975); Gaulding v. Baker, 9 Ga. App. 578, 71 S.E. 1018 (1911); Green v. Johnson, 153 Ga. 738, 113 S.E. 402 (1922) (decided under former Civil Code 1910, § 4572); Sapp v. Ritch, 169 Ga. 33, 149 S.E. 636 (1929); Head v. Stephens, 215 Ga. 184, 109 S.E.2d 772 (1959) (decided under former Civil Code 1910, § 4572); 218 Ga. 191, 126 S.E.2d 623 (1962);(decided under former Civil Code 1910, § 4572);later appeal,(decided under former Code 1933, § 38-510).

Because the decedent's offspring sought reformation of the option contract entered into with the decedent on the basis of mutual mistake of fact due to a scrivener's error mistakenly describing the property to be sold, parol evidence of the real terms of the agreement was admissible. Morris v. Morris, 282 Ga. App. 127, 637 S.E.2d 838 (2006) (decided under former O.C.G.A. § 24-6-7).

Parol evidence admissible.

- Grant of summary judgment to a corporation was vacated as reformation was a possible remedy against a corporation since an owner's warranty deed to a buyer contained a mistaken descriptor; the owner could seek reformation against the corporation as the corporation bought the property from the buyer under the same mistake and parol evidence was admissible in such a reformation action, even though the owner and the corporation were never parties to the same transaction. Amin v. Guruom, Inc., 280 Ga. 873, 635 S.E.2d 105 (2006) (decided under former O.C.G.A. § 24-6-7).

Trial court erred in granting a bank's motion for summary judgment in the bank's action for breach of a guaranty because parol testimony was admissible and created a genuine issue of material fact over whether the guaranty was executed after the bank had already extended credit to the underlying debtor, and thus over whether the guaranty was void for lack of consideration; as in the context of a deed, a witness is entitled to offer parol testimony that the guaranty was executed on a date other than the date inserted on the guaranty. Helton v. Jasper Banking Co., 311 Ga. App. 363, 715 S.E.2d 765 (2011) (decided under former O.C.G.A. § 24-6-7).

Deed reformed.

- See West Lumber Co. v. Moore, 179 Ga. 302, 175 S.E. 642 (1934) (stipulation as to assumption of liens) (decided under former Code 1933, § 38-510); Smith v. Smith, 223 Ga. 560, 156 S.E.2d 901 (1967) (date of execution of deed) (decided under former Code 1933, § 38-510).

Contract reformed.

- See West Lumber Co. v. Moore, 179 Ga. 302, 175 S.E. 642 (1935) (stipulation as to assumption of liens) (decided under former Code 1933, § 38-510).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, § 1123.

C.J.S.

- 32A C.J.S., Evidence, §§ 1205, 1232, 1233, 1254.

ALR.

- Does right of grantor to maintain a suit in equity to set aside his conveyance for cause survive to his heir, 33 A.L.R. 51.

Exception to rule of admissibility of parol evidence to show that deed absolute on its face was intended as a mortgage, 111 A.L.R. 448.

Parol evidence rule as applied to lease, 151 A.L.R. 279.

Admissibility of extrinsic evidence to identify person or persons intended to be designated by the name in which a contract is made, 80 A.L.R.2d 1137.

Application of parol evidence rule in action on contract for architect's services, 69 A.L.R.3d 1353.

24-3-8. Original or subsequent voidness of writing.

Parol evidence shall be admissible to show that a writing either was originally void or subsequently became void.

(Code 1981, §24-3-8, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3725, former Code 1868, § 3749, former Code 1882, § 3802, former Civil Code 1895, § 5203, former Civil Code 1910, § 5790, former Code 1933, § 38-503, and former O.C.G.A. § 24-6-8 are included in the annotations for this Code section.

Failure of consideration.

- It may be shown that a note sued on was in fact without legal consideration of any kind, and that the actual basis of the undertaking was wholly illegal and the resultant promise absolutely void. Simmons v. International Harvester Co. of Am., 22 Ga. App. 358, 96 S.E. 9 (1918) (decided under former Civil Code 1910, § 5790). Miller v. Whitesburg Banking Co., 58 Ga. App. 84, 197 S.E. 906 (1938) See also S. & S. Bldrs., Inc. v. Equitable Inv. Corp., 219 Ga. 557, 134 S.E.2d 777 (1964) (decided under former Code 1933, § 38-503);(decided under former Code 1933, § 38-503).

Writing which undertakes to contract about a fictitious thing, even though it be denominated a consideration in the writing is in fact without consideration, is void, and the fact that it is void may be shown by parol under the rule of evidence. Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797 (1941) (decided under former Code 1933, § 38-503).

When the promise as stated in the writing is admitted, the promisor can show that there was no consideration or that there was a consideration which has failed wholly or in part, and therefore the promise is no longer supported, and must fail either in whole or in part, according to the facts. First Nat'l Bank v. Harrison, 408 F. Supp. 137 (N.D. Ga. 1975), aff'd, 529 F.2d 1350 (5th Cir. 1976) (decided under former Code 1933, § 38-503).

Consideration of a contract may be always inquired into in order to show that the promise is no longer binding according to its tenor; but in inquiring into the consideration the promisor cannot deny that the promisor made the promise evidenced by the writing. First Nat'l Bank v. Harrison, 408 F. Supp. 137 (N.D. Ga. 1975), aff'd, 529 F.2d 1350 (5th Cir. 1976) (decided under former Code 1933, § 38-503).

Different consideration may be shown by parol evidence. Harris v. Tisereau, 52 Ga. 153 (1874) (decided under former Code 1863, § 3725).

Nonperformance of condition precedent.

- Written document may by parol or other extrinsic evidence be shown not to be a contract at all because of the nonperformance of a condition precedent as to which the writing is silent. Rudder v. Belle Isle, 46 Ga. App. 336, 167 S.E. 753 (1933) (decided under former Civil Code 1910, § 5790).

Violation of public policy.

- When a contract apparently valid on the contract's face was attacked on the ground that the contract was entered into in violation of public policy, a court, when called upon to approve such a contract, will closely examine the terms of the contract and the circumstances under which the contract was entered into, before permitting the agreement to be made the judgment of the court. Beverly v. Beverly, 209 Ga. 468, 74 S.E.2d 89 (1953) (decided under former Code 1933, § 38-503); Funderburk v. Funderburk, 229 Ga. 457, 192 S.E.2d 262 (1972);(decided under former Code 1933, § 38-503).

Fraud.

- Parol evidence was admissible to show that a writing was void on account of fraud. Hinkle v. Hixon, 154 Ga. 193, 113 S.E. 805 (1922) (decided under former Civil Code 1910, § 5790); Johnson v. Sherrer, 197 Ga. 392, 29 S.E.2d 581 (1944); S. & S. Bldrs., Inc. v. Equitable Inv. Corp., 219 Ga. 557, 134 S.E.2d 777 (1964) (decided under former Code 1933, § 38-503); Hinson v. Hinson, 221 Ga. 291, 144 S.E.2d 381 (1965); Cone Mills Corp. v. A.G. Estes, Inc., 399 F. Supp. 938 (N.D. Ga. 1975) (decided under former Code 1933, § 38-503); Lewis v. Citizens & S. Nat'l Bank, 139 Ga. App. 855, 229 S.E.2d 765 (1976); Thompson v. Wilkins, 143 Ga. App. 739, 240 S.E.2d 183 (1977) (decided under former Code 1933, § 38-503);(decided under former Code 1933, § 38-503);(decided under former Code 1933, § 38-503);(decided under former Code 1933, § 38-503).

Trial court erred by granting summary judgment to a child in a suit brought by a sibling seeking a determination that the sibling was the sole beneficiary of their parent's life insurance policy as the sibling sufficiently alleged fraud and/or forgery with regard to a second beneficiary designation form allegedly signed by the parent. As such, the trial court should have permitted the sibling to introduce two affidavits that supported the sibling's allegations that the second beneficiary designation form was void. Weatherly v. Weatherly, 292 Ga. App. 879, 665 S.E.2d 922 (2008) (decided under former O.C.G.A. § 24-6-8).

Promise by bank not to enforce promissory note.

- There is no confidential relationship between a bank and a customer borrowing funds and therefore an oral agreement not to enforce a promissory note, which is a contract in writing, is not a type of fraud constituting an exception to the parol evidence rule. Boatman v. Citizens & S. Nat'l Bank, 155 Ga. App. 848, 273 S.E.2d 190 (1980) (decided under former Code 1933, § 38-503).

Colorable scheme between husband and wife.

- If a wife did not in fact purchase and was not to receive the machinery under the contract sued on, but the whole transaction was merely a colorable scheme or device by which the wife was induced by the plaintiff to assume the previous debt of the husband, without any consideration flowing to her, she would have the right to repudiate the entire illegal and void transaction, no matter by what device its true inwardness and purpose had been concealed. Simmons v. International Harvester Co. of Am., 22 Ga. App. 358, 96 S.E. 9 (1918) (decided under former Civil Code 1910, § 5790).

Evidence that party signed blank paper.

- Evidence tending to prove that a party only signed a blank sheet of paper, instead of signing a written and printed contract, was admissible. Chicago Bldg. & Mfg. Co. v. Butler, 139 Ga. 816, 78 S.E. 244 (1913) (decided under former Civil Code 1910, § 5790).

Contract to evade usury, penalty, or forfeiture.

- Parol evidence was admissible to show the circumstances attending the execution of papers and the sayings of the parties at the time for the purpose of ascertaining their intention as to a shipment of the cotton and enabling a jury to determine whether the contract of shipment was a device to evade the law relating to usury. Dwelle & Daniel v. Blackwood, 106 Ga. 486, 32 S.E. 593 (1899) (decided under former Civil Code 1895, § 5203).

While a valid written contract cannot be contradicted or varied by parol, it is competent by such evidence to show that the writing is but a cover for usury, penalty, or forfeiture. Lytle v. Scottish Am. Mtg. Co., 122 Ga. 458, 50 S.E. 402 (1905) (decided under former Civil Code 1895, § 5203).

What is called rent may be shown to have been really a part of the purchase money, or a device to obtain a penalty. Lytle v. Scottish Am. Mtg. Co., 122 Ga. 458, 50 S.E. 402 (1905) (decided under former Civil Code 1895, § 5203).

It was always permissible to show by parol evidence that a paper was but a cover for usury, penalty, forfeiture, or other illegal advantage to one of the parties. For if the law did not sedulously disregard form and seek for substance, nothing would be easier than the law's evasion by giving innocent names to prohibited acts. Flood v. Empire Inv. Co., 35 Ga. App. 266, 133 S.E. 60 (1926) (decided under former Civil Code 1910, § 5790).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, § 1119 et seq.

C.J.S.

- 32A C.J.S., Evidence, §§ 1207, 1221, 1224 et seq., 1234 et seq.

ALR.

- Parol evidence rule; right to show fraud in inducement or execution of written contract, 56 A.L.R. 13.

"Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Parol evidence rule as applied to lease, 151 A.L.R. 279.

Election by beneficiary to take under or against will as predictable upon initiation of, or participation in, court proceedings, 166 A.L.R. 316.

Admissibility of declarations by testator on issue of revocation of will, 172 A.L.R. 354.

Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds, 15 A.L.R.2d 1330.

Admissibility of oral evidence to show that a writing was a sham agreement not intended to create legal relations, 71 A.L.R.2d 382.

24-3-9. Explanation or denial of receipts.

Receipts for money shall always be only prima-facie evidence of payment and may be denied or explained by parol.

(Code 1981, §24-3-9, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3754, former Code 1873, § 3807, former Code 1882, § 3807, former Civil Code 1895, § 5208, former Civil Code 1910, § 5795, former Code 1933, § 38-508, and former O.C.G.A. § 24-6-9 are included in the annotations for this Code section.

Definition.

- Receipt was a written admission or acknowledgment of payment or delivery. It was not required by law to be in a particular form. Crider v. City Supply Co., 16 Ga. App. 377, 85 S.E. 350 (1915) (decided under former Civil Code 1910, § 5795).

Receipt was not a contract, but merely an admission in writing of the fact of payment or other settlement between a debtor and a creditor. Hamlin v. Lupo, 24 Ga. App. 408, 101 S.E. 5 (1919) (decided under former Civil Code 1910, § 5795).

Exception to general rule.

- Receipt for money mentioned in the former provisions was, as a general rule, an exception to the principle that parol evidence was inadmissible to explain or contradict a writing. Dunagan v. Dunagan, 38 Ga. 554 (1868) (decided under former Code 1868, § 3754); Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797 (1941);(decided under former Code 1933, § 38-508).

For admission rules when receipt was also contract, see Dunagan v. Dunagan, 38 Ga. 554 (1868) (decided under former Code 1868, § 3754).

If a receipt was a contract and not simply a receipt, there was no reason why the receipt should be susceptible of attack or explanation by parol more than any other contract. Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797 (1941) (decided under former Code 1933, § 38-508).

No receipt was conclusive evidence, and evidence may be introduced to show the receipt did not correctly express the truth of the case. Parker v. Wellons, 43 Ga. App. 721, 160 S.E. 109 (1931) (decided under former Civil Code 1910, § 5795).

Receipt may be explained.

- It was held not error to permit the maker of a receipt in evidence to explain the items in the receipt, or to cast upon the various amounts and testify to the sum total for which the receipt was given. Bigham v. Coleman, 71 Ga. 176 (1883) (decided under former Code 1882, § 3807).

Defendant may show that the defendant received less on certain promissory notes made by the defendant than the receipt shows. New England Mtg. Sec. Co. v. Gay, 33 F. 636 (S.D. Ga. 1888), dismissed for lack of jurisdiction, 145 U.S. 123, 12 S. Ct. 815, 36 L. Ed. 646 (1892) (decided under former Code 1882, § 3807).

On an action on an open account, the trial court did not violate the parol evidence rule by admitting evidence that explained a "paid" notation on invoices. An invoice for goods delivered on open account was not "a valid written instrument" as that term was used in former O.C.G.A. § 24-6-1 (see now O.C.G.A. § 24-3-1); furthermore, former O.C.G.A. § 24-6-9 specifically provided that receipts for money were always only prima facie evidence of payment and could be denied or explained by parol. Wheeler v. IDN-Armstrong's, Inc., 288 Ga. App. 253, 653 S.E.2d 835 (2007) (decided under former O.C.G.A. § 24-6-9).

Combination receipt and contract.

- Written instrument may sometimes partake of the nature of both a receipt and a contract. Insofar as it was merely a receipt, the former statute was applicable; but insofar as it was a contract, it cannot be changed, modified, or have its terms enlarged by parol evidence. Southern Bell Tel. & Tel. Co. v. Smith, 129 Ga. 558, 59 S.E. 215 (1907) (decided under former Civil Code 1895, § 5208); Graham v. Peacock, 131 Ga. 785, 63 S.E. 348 (1909); Riverside Milling & Power Co. v. Bank of Cartersville, 141 Ga. 578, 81 S.E. 892 (1914) (decided under former Civil Code 1895, § 5208).See also (decided under former Civil Code 1910, § 5795).

Acknowledgment in form of affidavit.

- Fact that an acknowledgment of payment was in the form of an affidavit did not render the affidavit inadmissible when offered in evidence as a receipt. Crider v. City Supply Co., 16 Ga. App. 377, 85 S.E. 350 (1915) (decided under former Civil Code 1910, § 5795).

Letter and a reply amounting to nothing more than a receipt was explainable by parol evidence. Halls Self-Feeding Cotton Gin Co. v. Black, 71 Ga. 450 (1883) (decided under former Code 1882, § 3807).

Ancient receipt.

- When a receipt, as any other written instrument, was more than 30 years old, the receipt's execution need not be proved to admit the receipt in evidence, although the subscribing witness may be living. Settle v. Alison, 8 Ga. 201, 52 Am. Dec. 393 (1850) (decided under former law).

Administrator's receipt.

- Receipt in full given by the administrator de bonis non with the will annexed, to the administratrix of the deceased executor, was open to explanation. Watts v. Baker, 78 Ga. 622, 3 S.E. 773 (1887) (decided under former Code 1882, § 3807).

Receipts by wards to guardian.

- Receipts in full by wards to their guardian which, in express terms, discharge the guardian from all liability, may be explained by parol evidence. Alexander v. Alexander, 46 Ga. 283 (1872) (decided under former Code 1868, § 3754).

Attorney's receipts.

- When an attorney gave a receipt for a note to collect, in which the note is described, but omitting the fact that the note was endorsed in an action for damages, it was competent to prove by parol the fact of the indorsement. Cox v. Sullivan, 7 Ga. 144, 50 Am. Dec. 386 (1849) (decided under former law); Barclay v. Hopkins, 59 Ga. 562 (1877);(decided under former Code 1873, § 3807).

Recital in lease that rent paid.

- When a written lease states that the rent was a certain amount and contained a mere recital that it was paid, it was permissible to show by parol testimony that only a part of the rent was paid at the execution of the agreement and that the balance was still unpaid. Googe v. York, 38 Ga. App. 62, 142 S.E. 562 (1928) (decided under former Civil Code 1910, § 5795).

Words in a release placed upon a recorded security instrument importing payment of the secured indebtedness are not a contract but constitute a receipt, or evidence of payment of money, and can be contradicted by parol evidence. Security Fin. Corp. v. Blackwood, 111 Ga. App. 850, 143 S.E.2d 515 (1965) (decided under former Code 1933, § 38-508).

Parol agreement at variance with contract as to time of payment.

- When a contract calls for the payment of money at a certain time, evidence of a parol agreement at variance with the writing as to such matter was not admissible. Googe v. York, 38 Ga. App. 62, 142 S.E. 562 (1928) (decided under former Civil Code 1910, § 5795).

Effect of accepting incorrect receipt.

- When a passenger accepts an incorrect receipt for fare paid, the passenger was not estopped from asserting that the passenger paid a different amount. Atlantic C.L.R.R. v. Thomas, 14 Ga. App. 619, 82 S.E. 299 (1914) (decided under former Civil Code 1910, § 5795).

Province of jury to disregard receipt.

- If an explanation given by authority of the law was satisfactory, the receipt may be disregarded by the jury. Atlantic Coast Line R.R. v. Blalock, 8 Ga. App. 44, 68 S.E. 743 (1910) (decided under former Civil Code 1910, § 5795).

As receipts for money were only prima facie evidence of payment and may be denied or explained by parol, if an explanation was given, the existence of the receipt may be disregarded by the trier of fact. Meadows v. Phillips, 188 Ga. App. 377, 373 S.E.2d 27 (1988) (decided under former O.C.G.A. § 24-6-9).

Instructions.

- Court should instruct the jury, in addition to the statutory language, that it was a question for the jury to say whether or not the party's evidence sufficiently explained the receipts. McJenkin Ins. & Realty Co. v. Thompson, 79 Ga. App. 473, 54 S.E.2d 336 (1949) (decided under former Code 1933, § 38-508).

Application.

- See Newsom v. Reynolds Chevrolet Co., 43 Ga. App. 376, 158 S.E. 763 (1931) (recital in written contract of sale of personalty concerning purchase-money) (decided under former Civil Code 1910, § 5795); Greeson v. Farmers' & Merchants' Bank, 50 Ga. App. 566, 179 S.E. 191 (1935) (deposit slip) (decided under former Code 1933, § 38-508).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, § 1141.

C.J.S.

- 32A C.J.S., Evidence, § 1206.

ALR.

- Admissibility of parol evidence to vary or explain contract implied from the regular endorsement of a bill or note, 92 A.L.R. 721.

Parol evidence rule as applied to deposit of funds in name of depositor and another, 33 A.L.R.2d 569.

Admissibility of extrinsic evidence to explain or contradict bank deposit slips, deposit entries in passbooks, certificates of deposit, or similar instruments, 42 A.L.R.2d 600.

24-3-10. Explanation of blank endorsements.

Blank endorsements of negotiable paper may always be explained between the parties themselves or those taking with notice of dishonor or of the actual facts of such endorsements.

(Code 1981, §24-3-10, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Effect of blank endorsement generally, § 11-3-204.

Provision that signature on negotiable instrument is an endorsement unless instrument clearly indicates that signature was made in some other capacity, § 11-3-402.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 3808, former Code 1882, § 3808, former Civil Code 1895, § 5209, former Civil Code 1910, § 5796, former Code 1933, § 38-509, and former O.C.G.A. § 24-6-10 are included in the annotations for this Code section.

Only blank endorsements affected by statute.

- Law of blank endorsements changes the rule that even a blank endorsement was not subject to be modified in the endorsement's legal effect by parol evidence, but the law does not expose any other endorsements to like modification. Meador v. Dollar Sav. Bank, 56 Ga. 605 (1876) (decided under former Code 1873, § 3808); Jones v. Commercial Credit Co., 52 Ga. App. 796, 184 S.E. 652 (1936);(decided under former Code 1933, § 38-509).

Application to parties or those taking with notice.

- As between the parties themselves, or those taking with notice of dishonor or of the actual facts of the endorsement, parol evidence was admissible to explain the endorsement. Pickett v. Bank of Ellijay, 182 Ga. 540, 186 S.E. 426, answer conformed to, 53 Ga. App. 607, 186 S.E. 746 (1936) (decided under former Code 1933, § 38-509); Hopkins Auto. Equip. Co. v. Lyon, 59 Ga. App. 468, 1 S.E.2d 460 (1939); Massell v. Prudential Ins. Co. of Am., 57 Ga. App. 460, 196 S.E. 115 (1938) (decided under former Code 1933, § 38-509).See also (decided under former Code 1933, § 38-509).

But not to innocent third parties.

- Law was plain and emphatic that a blank endorsement may be explained by parol, except as against subsequent holders for value, bona fide and without notice. McMillan v. Fourth Nat'l Bank, 17 Ga. App. 590, 87 S.E. 843 (1916) (decided under former Civil Code 1910, § 5796).

Law had application between the parties, or those taking with notice of dishonor, or of the actual facts of such endorsement, and had no application to the rights of third parties. Pickett v. Bank of Ellijay, 182 Ga. 540, 186 S.E. 426, answer conformed to, 53 Ga. App. 607, 186 S.E. 746 (1936) (decided under former Code 1933, § 38-509).

As against a third party, the holder of the note before maturity, for value, and without notice of dishonor or of the actual facts of the endorsement, parol evidence was not admissible to contradict or explain the capacity in which such written endorsement was signed, but the construction thereof was for the court. Guaranty Mtg. Co. v. National Life Ins. Co., 55 Ga. App. 104, 189 S.E. 603 (1936), aff'd, 184 Ga. 644, 192 S.E. 298 (1937) (decided under former Code 1933, § 38-509). Hopkins Auto. Equip. Co. v. Lyon, 59 Ga. App. 468, 1 S.E.2d 460 (1939) See also (decided under former Code 1933, § 38-509).

Endorsements.

- Former statute was not confined to technical endorsements, i.e., endorsements essential to transfer of title, but extended to endorsements in the broader sense which were irregular and unnecessary to pass title. Atkinson v. Bennett, 103 Ga. 508, 30 S.E. 599 (1898) (decided under former Civil Code 1895, § 5209).

Former statute was not confined merely to blank endorsements in the strict sense as when the endorser wrote only the endorser's name upon the negotiable instrument; the former statute related to all endorsements which were not full or complete. McMillan v. Fourth Nat'l Bank, 17 Ga. App. 590, 87 S.E. 843 (1916) (decided under former Civil Code 1910, § 5796); Procter v. Royster Guano Co., 21 Ga. App. 617, 94 S.E. 821 (1918); Bowden v. Owens, 33 Ga. App. 700, 127 S.E. 664 (1925) (decided under former Civil Code 1910, § 5796);(decided under former Civil Code 1910, § 5796).

Agreement to endorse may be construed as a contract of guarantee. Georgia Cas. Co. v. Dixie Trust & Sec. Co., 23 Ga. App. 447, 98 S.E. 414 (1919) (decided under former Civil Code 1910, § 5796).

Endorsement in full.

- If an endorsement in blank had been partially completed by a subsequent endorser writing the words, "without recourse," and signing the endorser's name, it was not an endorsement in full, and parol evidence was admissible. West Yellow Pine Co. v. Kendrick, 9 Ga. App. 350, 71 S.E. 504 (1911) (decided under former Civil Code 1910, § 5796).

When the endorsement was one "in full," though followed by the words "without recourse," parol evidence was not admissible to explain any unambiguous terms. Odom Realty Co. v. Central Trust Co., 22 Ga. App. 711, 97 S.E. 116 (1918) (decided under former Civil Code 1910, § 5796).

Endorsement for special purpose.

- It may be shown by parol evidence that the endorsement of a note was made for a special purpose. Carhart Bros. & Co. v. Wynn, 22 Ga. 24 (1857) (decided under former law).

Transfer for collection.

- When the payee of a note, payable to the payee or order, transfers the note in writing to a third person, without recourse, and signs the transfer, parol evidence was admissible, at the instance of the payee or the payee's executors to show that such transfer was made for collection. This was the rule at common law; and the former statute was not intended to abrogate this principle of the common law, the purpose of the former statute being, not to narrow the admission of parol evidence when it was permissible by common law, but to extend the admission of such evidence to the explanation of endorsements in blank, which was not permissible by that law. Sanders v. Ayers, 155 Ga. 630, 117 S.E. 651 (1923) (decided under former Civil Code 1910, § 5796).

Accommodation endorsements.

- Former law applied to accommodation endorsements. Taff v. Larey, 29 Ga. App. 631, 116 S.E. 866 (1923) (decided under former Civil Code 1910, § 5796).

Accommodation endorser had the right to stipulate the character of the liability which the endorser assumed in signing a particular paper. Taff v. Larey, 29 Ga. App. 631, 116 S.E. 866 (1923) (decided under former Civil Code 1910, § 5796).

Endorsements to pass title merely.

- Parol evidence was, in any given instance, admissible to show that such an endorsement upon a promissory note was made simply to pass title and not to create liability in the endorser. Bryan v. Windsor, 99 Ga. 176, 25 S.E. 268 (1896) (decided under former Civil Code 1895, § 5209); Cowart Co. v. Sheffield, 18 Ga. App. 512, 89 S.E. 1101 (1916); Stapler v. Burns, 43 Ga. 382 (1871) (decided under former Civil Code 1910, § 5796). Galceran v. Noble, 66 Ga. 367 (1881) See also (decided under former law);(suit by plaintiff who took note after dishonor) (decided under former Code 1873, § 3808).

In a suit by the payee of a promissory note signed in the name of a corporation as maker, a plea by certain individuals who had signed their names in blank upon the back of the note, to the effect that their names were so placed upon the instrument "only for the purpose of perfecting title and passing title, and upon the distinct understanding that they were not to be held liable thereon in any way," did not set up a good defense. Proctor v. Royster Guano Co., 21 Ga. App. 617, 94 S.E. 821 (1918) (decided under former Civil Code 1910, § 5796).

Assuming that the contract of suretyship or accommodation endorsement sued on should be taken as having been signed in blank, a plea merely denying all liability thereunder, without showing any bona fide reason why the endorsement was entered for a purpose other than that of incurring liability, cannot be taken as an effort to explain the true nature and intent of the contract, as was permitted by the former statute, and did not set up a good defense. Pearce v. Swift & Co. Fertilizer Works, 21 Ga. App. 622, 94 S.E. 915 (1918) (see former Civil Code 1910, § 5796).

Capacity of signers.

- When a promissory note was upon the note's face payable to the order of the payee at a chartered bank, though reading "we promise to pay," etc., and signed by one person only, the prima facie import of an endorsement thereon in blank by a third person was that such endorser undertook to be liable as a second endorser, and not as a joint maker. The true intent of the parties, however, in an action by the payee upon the instrument, was open to explanation by parol evidence. Neal & Co. v. Wilson, 79 Ga. 736, 5 S.E. 54 (1887) (decided under former Code 1882, § 3808).

Party signing negotiable paper in blank may show by parol that the party was a surety only. Sibley v. American Exch. Nat'l Bank, 97 Ga. 126, 25 S.E. 470 (1895) (decided under former Code 1882, § 3808).

When several parties are sued on a check, one as maker and the others as endorsers, the payee could show by parol that those signing apparently as endorsers were in fact sureties or joint makers. James v. Calder, 7 Ga. App. 707, 67 S.E. 1125 (1910) (decided under former Civil Code 1910, § 5796).

Evidence could not be introduced, as against third persons, to show a different capacity, but could be introduced to show as between the immediate parties, an agreement that the person signing should be bound in a capacity different from that shown by the instrument. Massell v. Prudential Ins. Co. of Am., 57 Ga. App. 460, 196 S.E. 115 (1938) (decided under former Code 1933, § 38-509).

Showing agency of drawer.

- Agency of the drawer and knowledge by the payee and endorsee cannot be shown by parol in defense to a suit on a draft. Bedell v. Scarlett, 75 Ga. 56 (1885) (decided under former Code 1882, § 3808).

Endorsement of mortgage note.

- Blank endorsement of a mortgage note may be explained by parol to show an agreement that an indebtedness of the mortgagee was to be first satisfied out of the mortgaged property. Willingham & Cone v. Huguenin, 129 Ga. 835, 60 S.E. 186 (1908) (decided under former Civil Code 1895, § 5209).

Cited in Rai v. Reid, 294 Ga. 270, 751 S.E.2d 821 (2013).

RESEARCH REFERENCES

ALR.

- Endorsement, "to the order of any bank or banker," as a restrictive endorsement, 10 A.L.R. 709.

Admissibility of parol evidence to vary or explain the contract implied from the regular endorsement of a bill or note, 35 A.L.R. 1120; 54 A.L.R. 999; 92 A.L.R. 721.

Parol evidence as to liability of irregular endorser to payee, 37 A.L.R. 1222.

CHAPTER 4 RELEVANT EVIDENCE AND ITS LIMITS

Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 enactment of this chapter, see 28 Ga. St. U.L. Rev. 1 (2011). For comment, "Lyrics for Lockups: Using Rap Lyrics to Prosecute in America," see 69 Mercer L. Rev. 917 (2018).

RESEARCH REFERENCES

ALR.

- Admissibility of evidence, and propriety and effect of questions, statements, comments, etc., tending to show that defendant in a personal injury or death action carries liability insurance, 4 A.L.R.2d 761.

Admissibility, as against objection of remoteness, of evidence as to past earnings, upon issue as to amount of damages in action for personal injury or death, 81 A.L.R.2d 733.

Admissibility on issue of value of real property of evidence of sale price of other real property, 85 A.L.R.2d 110.

Evidence: use and admissibility of maps, plats, and other drawings to illustrate or express testimony, 9 A.L.R.2d 1044.

Admissibility, in damage action arising out of explosion or blasting, of evidence of damage to other property in vicinity, 45 A.L.R.2d 1121.

Admissibility of testimony of transferee as to his knowledge, purpose, intention, or good faith on issue whether conveyance was in fraud of transferor's creditors, 52 A.L.R.2d 418.

Admissibility and conclusiveness, as against insured, of statements in proof of loss, 58 A.L.R.2d 429.

Admissibility and effect, in criminal case, of evidence as to juror's statements, during deliberations, as to facts not introduced into evidence, 58 A.L.R.2d 556.

Propriety and prejudicial effect of comment or evidence as to accused's willingness to take lie detector test, 95 A.L.R.2d 819.

Price fixed in contract violating statute of frauds as evidence of value in action on quantum meruit, 21 A.L.R.3d 9.

Admissibility, in civil action, of disposal of property as bearing on question of liability, 38 A.L.R.3d 996.

Admissibility in evidence, on issue of negligence, of codes or standards of safety issued or sponsored by governmental body or by voluntary association, 58 A.L.R.3d 148.

Admissibility on defendant's behalf, as matter in mitigation of punitive damages, of evidence as to his lack of financial resources, 79 A.L.R.3d 1138.

Admissibility of evidence of character or reputation of party in civil action for sexual assault on issues other than impeachment, 100 A.L.R.3d 569.

Admissibility, in criminal case, of results of residue detection test to determine whether accused or victim handled or fired gun, 1 A.L.R.4th 1072.

Modern status of rules as to admissibility of evidence of prior accidents or injuries at same place, 21 A.L.R.4th 472.

Admissibility of evidence as to other offense as affected by defendant's acquittal of that offense, 25 A.L.R.4th 934.

Proof of mailing by evidence of business or office custom, 45 A.L.R.4th 476.

Admissibility and weight of evidence of prior misidentification of accused in connection with commission of crime similar to that presently charged, 50 A.L.R.4th 1049.

Thermographic tests: admissibility of test results in personal injury suits, 56 A.L.R.4th 1105.

Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids, 75 A.L.R.4th 897.

Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding, 79 A.L.R.4th 576.

Admissibility, after enactment of Rule 411, Federal Rules of Evidence, of evidence of liability insurance in negligence actions, 40 A.L.R. Fed. 541.

Admissibility of evidence not related to air travel security, disclosed by airport security procedures, 108 A.L.R. Fed. 658.

24-4-401. "Relevant evidence" defined.

As used in this chapter, the term "relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

(Code 1981, §24-4-401, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Test for relevant evidence, Fed. R. Evid. 401.

Law reviews.

- For article, "The Myth of Conditional Relevancy," see 14 Ga. L. Rev. 435 (1980). For article, "'They Say He's Gay': The Admissibility of Evidence of Sexual Orientation," see 37 Ga. L. Rev. 793 (2003). For annual survey on evidence law, see 70 Mercer L. Rev. 97 (2018). For note discussing the possible uses of video tape and its admissibility as evidence, see 5 Ga. St. B.J. 393 (1969). For comment discussing the admissibility of ex parte affidavit in nonjury situations, in light of Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957), see 20 Ga. B.J. 392 (1958). For comment discussing admissibility of relevant motion picture films, in light of Long v. General Elec. Co., 213 Ga. 809, 102 S.E.2d 9 (1958), see 22 Ga. B.J. 92 (1959).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5158, former Civil Code 1910, § 5744, former Code 1933, § 38-201, and former O.C.G.A. § 24-2-1 are included in the annotations for this Code section.

It is error to admit irrelevant evidence. Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983) (decided under former O.C.G.A. § 24-2-1).

Admission of irrelevant evidence is not a ground for reversal unless it can be shown the evidence was prejudicial. Hill v. State, 177 Ga. App. 850, 341 S.E.2d 322 (1986) (decided under former O.C.G.A. § 24-2-1).

Objecting party failed to carry burden of proving that admission of evidence unduly prejudicial to that party's rights. DOT v. 2.734 Acres of Land, 168 Ga. App. 541, 309 S.E.2d 816 (1983) (decided under former O.C.G.A. § 24-2-1).

When testimony is part material and in part irrelevant, a general objection to the whole is not well taken; if however, the objecting party points out the irrelevant portion of the testimony offered, it is not error for the court to reject the evidence in toto, when the party offering the evidence fails to segregate the relevant portions from those which are irrelevant; and when it is shown that designated portions of the evidence are irrelevant, but the court over such objection admits the testimony as a whole, a new trial will be granted provided such irrelevant testimony could have been harmful to the complaining party. Taintor v. Rogers, 197 Ga. 872, 30 S.E.2d 892 (1944) (decided under former Code 1933, § 38-201).

See Richardson v. State, 308 Ga. 70, 838 S.E.2d 759 (2020); Chatham v. Gardner Excavating, Inc., 353 Ga. App. 806, 840 S.E.2d 46 (2020).

Cited in Morgan v. State, 307 Ga. 889, 838 S.E.2d 878 (2020).

Relevancy Defined

Any evidence is relevant which logically tends to prove or disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. Sample v. Lipscomb, 18 Ga. 554 (1855) (decided under former law); Walker v. Roberts, 20 Ga. 15 (1856); Alexander v. State, 7 Ga. App. 88, 66 S.E. 274 (1909) (decided under former law); Carter v. Marble Prods., Inc., 179 Ga. 122, 175 S.E. 480 (1934); Rogers v. State, 80 Ga. App. 585, 56 S.E.2d 633 (1949) (decided under former Civil Code 1895, § 5158); MacNerland v. Johnson, 137 Ga. App. 541, 224 S.E.2d 431 (1976); Citizens & S. Nat'l Bank v. Hodnett, 139 Ga. App. 839, 229 S.E.2d 792 (1976) (decided under former Code 1933, § 38-201); Johnson v. State, 148 Ga. App. 702, 252 S.E.2d 205 (1979); Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979) (decided under former Code 1933, § 38-201); Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979); Kelly v. Floor Bazaar, Inc., 153 Ga. App. 163, 264 S.E.2d 697 (1980) (decided under former Code 1933, § 38-201); Williams v. State, 153 Ga. App. 890, 267 S.E.2d 305 (1980); Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980) (decided under former Code 1933, § 38-201); Guest v. State, 155 Ga. App. 374, 270 S.E.2d 904 (1980); DOT v. Delta Mach. Prods. Co., 157 Ga. App. 423, 278 S.E.2d 73 (1981) (decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

Every fact or circumstance serving to elucidate or throw light upon the issue being tried constitutes proper evidence in the case. A.A.A. Hwy. Express, Inc. v. Hagler, 72 Ga. App. 519, 34 S.E.2d 462 (1945) (decided under former Code 1933, § 38-201); Miller Serv., Inc. v. Miller, 76 Ga. App. 143, 45 S.E.2d 466 (1947); 77 Ga. App. 413, 48 S.E.2d 761 (1948), later appeal, Hodnett v. Hodnett, 99 Ga. App. 285, 109 S.E.2d 285 (1959) (decided under former Code 1933, § 38-201); DOT v. Delta Mach. Prods. Co., 157 Ga. App. 423, 278 S.E.2d 73 (1981);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

Evidence is relevant if the evidence renders the desired inference more probable than it would be without the evidence. Baker v. State, 246 Ga. 317, 271 S.E.2d 360 (1980) (decided under former Code 1933, § 38-201).

Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. Owens v. State, 248 Ga. 629, 284 S.E.2d 408 (1981) (decided under former Code 1933, § 38-201).

Any fact is relevant which, when taken alone or in connection with another or others, would warrant the drawing by the jury of a logical inference with reference to the issue on trial. Pope v. Triangle Chem. Co., 157 Ga. App. 386, 277 S.E.2d 758 (1981) (decided under former Code 1933, § 38-201).

Evidence of victim's gang membership irrelevant.

- Trial court did not commit plain error by excluding evidence that the first victim was a member of a street gang because any such affiliation was irrelevant and had no connection to the shooting; and the defendant provided nothing to indicate that the motivation for the shooting, or anything related to the shooting for that matter, was related to street gang activity. Walton v. State, 303 Ga. 11, 810 S.E.2d 134 (2018).

Evidence of witness's feelings towards parties.

- Former O.C.G.A. §§ 24-2-1 and24-9-68 (see now O.C.G.A. §§ 24-4-401 through24-4-403 and24-9-622) should be considered in pari materia; thus, even if testimony sought to be admitted relates to the feelings a witness has toward a party, if that particular feeling would have no relevance to the questions being tried by the jury, then such evidence may be excluded in the sound discretion of the trial court. Lockett v. State, 217 Ga. App. 328, 457 S.E.2d 579 (1995) (decided under former O.C.G.A. § 24-2-1).

Crime participant's testimony relevant.

- During the appellant's trial for felony murder, aggravated assault, and possession of a firearm during the commission of a felony, it was not error to admit the testimony of a witness related to their personal observations as a participant and witness to the crimes as the testimony clearly was damaging to the appellant's defense, it was relevant to establish the appellant's guilt and the circumstances surrounding the charged crimes, and did not improperly place the appellant's character in issue. Williams v. State, 298 Ga. 538, 783 S.E.2d 594 (2016).

Testimony on use of Facebook.

- Trial court did not err by excluding as irrelevant the testimony of a witness the defendant sought to have testify regarding the witness's general experience using Facebook because the testimony was not relevant to a replaced juror's personal style. Smith v. State, 335 Ga. App. 497, 782 S.E.2d 305 (2016).

Consideration of relevancy in motion to strike.

- Georgia Supreme Court held that courts should not ordinarily decide to strike a portion of the complaint on the grounds that the material could not possibly be relevant on the sterile field of pleading alone; relevance, which is a broad concept even in the trial context, O.C.G.A. § 24-4-401, is viewed even more liberally in the context of O.C.G.A. § 9-11-12(f) motions. Chappuis v. Ortho Sport & Spine Physicians Savannah, LLC, 305 Ga. 401, 825 S.E.2d 206 (2019).

Consideration of relevancy in motion to strike.

- Georgia Supreme Court held that courts should not ordinarily decide to strike a portion of the complaint on the grounds that the material could not possibly be relevant on the sterile field of pleading alone; relevance, which is a broad concept even in the trial context, O.C.G.A. § 24-4-401, is viewed even more liberally in the context of O.C.G.A. § 9-11-12(f) motions. Chappuis v. Ortho Sport & Spine Physicians Savannah, LLC, 305 Ga. 401, 825 S.E.2d 206 (2019).

Criteria of Admissibility

Questions as to the relevancy and admissibility of the testimony are properly for the court, and the question must be determined in each case according to the facts of that particular case and in accordance with the teachings of reason and judicial experience. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119 (1974) (decided under former Code 1933, § 38-201); MacNerland v. Johnson, 137 Ga. App. 541, 224 S.E.2d 431 (1976); Downs v. State, 145 Ga. App. 588, 244 S.E.2d 113 (1978) (decided under former Code 1933, § 38-201); Church's Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154, 256 S.E.2d 916 (1979); Henderson v. State, 153 Ga. App. 801, 266 S.E.2d 522 (1980) (decided under former Code 1933, § 38-201); Williams v. State, 153 Ga. App. 890, 267 S.E.2d 305 (1980); Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980) (decided under former Code 1933, § 38-201); Brand v. State, 154 Ga. App. 781, 270 S.E.2d 206 (1980); Guest v. State, 155 Ga. App. 374, 270 S.E.2d 904 (1980) (decided under former Code 1933, § 38-201); Baker v. State, 246 Ga. 317, 271 S.E.2d 360 (1980);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make the evidence relevant and admissible. Lewis v. State, 158 Ga. App. 586, 281 S.E.2d 331 (1981) (decided under former Code 1933, § 38-201).

Insufficient funds evidence relevant and admissible.

- Trial court did not err when the court allowed the state to introduce evidence that, on the date of the death of the defendant's wife, the defendant received an email notifying the defendant that the defendant had insufficient funds in the defendant's bank account because it was within the discretion of the trial court to conclude that the evidence was relevant to show that the defendant was under some degree of financial stress and had some reason to be upset on the day of the killing; and the prejudicial effect of the evidence, if any, was minimal and not unfair. McClain v. State, 303 Ga. 6, 810 S.E.2d 77 (2018).

Evidence of defendants' financial worth.

- In a premises liability suit, the trial court erred by excluding evidence of the defendants' security expenditures by failing to determine whether the financial worth of the defendants was relevant to the issue since the plaintiffs contended that such evidence would show that the defendants' increased security expenditures constituted only a small percentage of the defendants' security budget. Cham v. ECI Mgmt. Corp., 353 Ga. App. 162, 836 S.E.2d 555 (2019).

Question for the jury.

- When facts are such that the jury, if permitted to hear the facts, may or may not make an inference pertinent to the issue, according to the view which the jury may take of the facts, in connection with the other facts in evidence, the facts are such that the jury ought to be permitted to hear the facts. Williams v. State, 153 Ga. App. 890, 267 S.E.2d 305 (1980) (decided under former Code 1933, § 38-201); Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980); Brand v. State, 154 Ga. App. 781, 270 S.E.2d 206 (1980) (decided under former Code 1933, § 38-201); Paxton v. State, 160 Ga. App. 19, 285 S.E.2d 741 (1981);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

Relevant evidence cannot be kept from the jury by admission of the fact or waiver of the requirement of proof. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1980) (decided under former Code 1933, § 38-201); Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980); 451 U.S. 976, 101 S. Ct. 2059, 68 L. Ed. 2d 357 (1981), cert denied,(decided under former Code 1933, § 38-201).

If the evidence offered by a party is of doubtful relevancy, the evidence should nevertheless be admitted and the weight of the evidence left to the jury. Continental Trust Co. v. Bank of Harrison, 36 Ga. App. 149, 136 S.E. 319 (1926) (decided under former Civil Code 1910, § 5744); Brown v. Wilson, 55 Ga. App. 262, 189 S.E. 860 (1937); A.A.A. Hwy. Express, Inc. v. Hagler, 72 Ga. App. 519, 34 S.E.2d 462 (1945) (decided under former Code 1933, § 38-201); Smith v. Davis, 76 Ga. App. 154, 45 S.E.2d 237 (1947); Miller Serv., Inc. v. Miller, 76 Ga. App. 143, 45 S.E.2d 466 (1947) (decided under former Code 1933, § 38-201); 77 Ga. App. 413, 48 S.E.2d 761 (1948); Manners v. State, 77 Ga. App. 843, 50 S.E.2d 158 (1948) (decided under former Code 1933, § 38-201); Burton v. Campbell Coal Co., 95 Ga. App. 338, 97 S.E.2d 924 (1957); Carroll v. Hayes, 98 Ga. App. 450, 105 S.E.2d 755 (1958), later appeal, Smith v. Morning News, Inc., 99 Ga. App. 547, 109 S.E.2d 639 (1959) (decided under former Code 1933, § 38-201); Citizens & S. Nat'l Bank v. Hodnett, 139 Ga. App. 839, 229 S.E.2d 792 (1976); Johnson v. State, 148 Ga. App. 702, 252 S.E.2d 205 (1979) (decided under former Code 1933, § 38-201); Calhoun v. Branan, 149 Ga. App. 160, 253 S.E.2d 838 (1979); Williams v. State, 153 Ga. App. 890, 267 S.E.2d 305 (1980) (decided under former Code 1933, § 38-201); DOT v. Delta Mach. Prods. Co., 157 Ga. App. 423, 278 S.E.2d 73 (1981); Lewis v. State, 158 Ga. App. 586, 281 S.E.2d 331 (1981) (decided under former Code 1933, § 38-201); Owens v. State, 248 Ga. 629, 284 S.E.2d 408 (1981);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

Question as to admissibility of evidence is not to be determined by the evidence's weight; if the evidence has any probative value, however small, and is otherwise competent, the evidence should be admitted. Fuller v. State, 196 Ga. 237, 26 S.E.2d 281 (1943) (decided under former Code 1933, § 38-201).

Res gestae.

- In a murder trial, the trial court did not err in admitting the defendant's own evidence that the defendant had been free-basing cocaine the night before the killing and again on the day of the killing; this evidence, as part and parcel of the crime and as res gestae, was admissible even though the killing did not appear to have directly involved drug usage and even though the evidence incidentally put the defendant's character in issue. Latham v. State, 195 Ga. App. 355, 393 S.E.2d 498 (1990) (decided under former O.C.G.A. § 24-2-1).

Mere circumstance that certain evidence may fall short of proving a fact is not a sufficient reason for excluding that evidence; unless otherwise objectionable, the evidence should be admitted, even though the evidence may only tend to prove the matter in issue. Livingston v. Barnett, 193 Ga. 640, 19 S.E.2d 385 (1942) (decided under former Code 1933, § 38-201); Miller Serv., Inc. v. Miller, 76 Ga. App. 143, 45 S.E.2d 466 (1947); 77 Ga. App. 413, 48 S.E.2d 761 (1948), later appeal, Rogers v. State, 80 Ga. App. 585, 56 S.E.2d 633 (1949) (decided under former Code 1933, § 38-201); Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

When the admissibility of evidence is doubtful, the burden is on the objecting party to show wherein it is inadmissible. Smith v. Morning News, Inc., 99 Ga. App. 547, 109 S.E.2d 639 (1959) (decided under former Code 1933, § 38-201).

When evidence is admitted for one purpose, it is not error for the court to fail to instruct the jury to limit the jury's consideration to the one purpose for which the evidence is admissible, in the absence of a request to so instruct the jury. Tankersley v. State, 155 Ga. App. 917, 273 S.E.2d 862 (1980) (decided under former Code 1933, § 38-201).

Relevant evidence is not subject to an objection that the evidence might inflame the minds of the jury or prejudice the jury and this is true even when the offered evidence is only cumulative; this rule favors the admission of any relevant evidence, no matter how slight the probative value. Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (1979) (decided under former Code 1933, § 38-201).

Evidence indirectly relevant.

- Evidence which is only indirectly relevant to the issue on trial, but which tends somewhat to illustrate the issue, and to aid the jury in arriving at the truth of the matter, should be admitted. Brown v. Wilson, 55 Ga. App. 262, 189 S.E. 860 (1937) (decided under former Code 1933, § 38-201); A.A.A. Hwy. Express, Inc. v. Hagler, 72 Ga. App. 519, 34 S.E.2d 462 (1945); Smith v. Davis, 76 Ga. App. 154, 45 S.E.2d 237 (1947) (decided under former Code 1933, § 38-201); Kalish v. King Cabinet Co., 140 Ga. App. 345, 232 S.E.2d 86 (1976); Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 244 S.E.2d 573 (1978) (decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

Evidence of similar occurrences is admitted when it appears that all the essential physical conditions on two occasions are identical; for under such circumstances the observed uniformity of nature raises an inference that like causes will produce like results, even though there may be some dissimilarity of conditions in respect to matters which cannot reasonably be expected to have affected the result. McCrea v. Georgia Power Co., 46 Ga. App. 276, 167 S.E. 540 (1933) (decided under former Code 1933, § 38-201).

Evidence excludable.

- It is not error to refuse to receive evidence not pertinent to the proceeding. Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696, 193 S.E. 627 (1937) (decided under former Code 1933, § 38-201); Gaskill v. Brown, 103 Ga. App. 33, 118 S.E.2d 113 (1961); Roberts v. Farmer, 127 Ga. App. 237, 193 S.E.2d 216 (1972) (decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

County was properly precluded from introducing evidence of a school district's condemnation of a landowner's property to indirectly show that the value of the property the county was condemning was less than that proposed by the landowner's expert. The admission of such evidence would have been improper because: (1) the landowner's compulsory sale of the property to the school district a year after the county initiated the county's condemnation action would not have affected the value of the land at the time of the county's taking a year earlier; and (2) the school district's inability to use the property as rezoned did not change the fact that the property was already in the process of being rezoned in a manner that affected the property's value for purposes of just and adequate compensation to the landowner at the time of the county's taking. Gwinnett County v. Howington, 280 Ga. App. 347, 634 S.E.2d 157 (2006) (decided under former O.C.G.A. § 24-2-1).

In a medical malpractice action, even if evidence of the doctor's professional liability policy, which a decedent's executrix sought as impeachment evidence, consisted of a prior inconsistent statement by the doctor, the trial court properly excluded evidence of the policy, as well as its inclusion in the court's instruction to the jury, as it involved a collateral matter and was more prejudicial than probative. King v. Zakaria, 280 Ga. App. 570, 634 S.E.2d 444 (2006) (decided under former O.C.G.A. § 24-2-1).

Grounds for new trial.

- While generally the admission of irrelevant testimony or illegal evidence, which is wholly immaterial, will not be cause for the grant of a new trial, it will be such ground if it appears of sufficient consequence to injuriously affect the complaining party. Travelers Ins. Co. v. Thornton, 119 Ga. 455, 46 S.E. 678 (1904) (decided under former Civil Code 1895, § 5158); McGriff v. McGriff, 154 Ga. 560, 115 S.E. 21 (1922); McDaniel v. State, 197 Ga. 757, 30 S.E.2d 612 (1944) (decided under former Civil Code 1910, § 5744); Dismuke v. State, 142 Ga. App. 381, 236 S.E.2d 12 (1977); Drew v. Collins, 153 Ga. App. 794, 266 S.E.2d 570 (1980) (decided under former Code 1933, § 38-201); Murdock v. Godwin, 154 Ga. App. 824, 269 S.E.2d 905 (1980);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

In a negligent misrepresentation action filed by a business against the business's accountants, the business was entitled to a new trial as the trial court twice erred by admitting irrelevant and prejudicial evidence that: (1) the business was sold for $65.5 million in 2005, in order to establish the business's 1993 value, as the sale was too remote, the business had undergone physical changes since the sale, and the market conditions had also changed; and (2) the loans from a shareholder to purchase and operate the business were later reclassified as a shareholder investment of capital, and that the debt owed to the shareholder was forgiven in exchange for the issuance of additional stock in the business as such was irrelevant to the determination of whether the business was entitled to direct damages. Atlando Holdings, LLC v. BDO Seidman, LLP, 290 Ga. App. 665, 660 S.E.2d 463 (2008) (decided under former O.C.G.A. § 24-2-1).

Conjectural testimony not competent evidence.

- Testimony as to what one thinks would have been the result of an occurrence had the occurrence happened in a particular way is not competent evidence, being merely conjectural and without probative value. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933) (decided under former Code 1933, § 38-201).

Foundation for introduction of evidence must be laid.

- There is no legal ground to complain of the failure to admit certain evidence or testimony when it is not shown what the evidence or testimony would have been. Lakeview Estates Homeowners Corp. v. Hilltop Enters. of Ga., Inc., 153 Ga. App. 323, 265 S.E.2d 120 (1980) (decided under former Code 1933, § 38-201).

Relevant Evidence in Civil Cases

Evidence relevant.

- See Benton v. Roberts, 41 Ga. App. 189, 152 S.E. 141 (1930) (issue not raised in pleadings) (decided under former Civil Code 1910, § 5744); Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933) (decided under former Civil Code 1910, § 5744); Miller v. Clermont Banking Co., 180 Ga. 556, 179 S.E. 718 (1935); A.A.A. Hwy. Express, Inc. v. Hagler, 72 Ga. App. 519, 34 S.E.2d 462 (1945) (decided under former Code 1933, § 38-201); Wade v. Drinkard, 76 Ga. App. 159, 45 S.E.2d 231 (1947); Norton v. Norton, 213 Ga. 384, 99 S.E.2d 139 (1957) (custom, practice, and habit) (decided under former Code 1933, § 38-201); Gallant v. Gallant, 223 Ga. 397, 156 S.E.2d 61 (1967); Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 244 S.E.2d 573 (1978) (treatment of one spouse by another in divorce proceedings) (decided under former Code 1933, § 38-201); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 260 S.E.2d 20 (1979) (financial status of spouse in divorce proceedings) (decided under former Code 1933, § 38-201); Gwinnett Com. Bank v. Flake, 151 Ga. App. 578, 260 S.E.2d 523 (1979) (medical treatment for accidental injury) (decided under former Code 1933, § 38-201); Sasser v. Lester, 153 Ga. App. 220, 264 S.E.2d 728 (1980) (manufacturer's recall letter) (decided under former Code 1933, § 38-201); Ponder v. Ponder, 251 Ga. 323, 304 S.E.2d 61 (1983) (documentary evidence) (decided under former Code 1933, § 38-201); Spencer v. Kyle Realty Co., 225 Ga. App. 203, 483 S.E.2d 639 (1997) (insurance) (decided under former Code 1933, § 38-201);(income tax returns) (decided under former Code 1933, § 38-201);(decided under former O.C.G.A. § 24-2-1).

Evidence of the abusive and violent relationship between a murder victim and a defendant was relevant under former O.C.G.A. § 24-2-1 (see now O.C.G.A. §§ 24-4-401 through24-4-403) to show defendant's motive, intent, and bent of mind, and the remoteness of events relating to such relationship affected the weight of the evidence but not the admissibility of the evidence. Mote v. State, 277 Ga. 429, 588 S.E.2d 748 (2003), cert. denied, 541 U.S. 1066, 124 S. Ct. 2395, 158 L. Ed. 2d 968 (2004) (decided under former O.C.G.A. § 24-2-1).

Evidence that a college had removed credit hours from a student's transcript was relevant to the student's claim for breach of contract damages as the student could recover the cost of tuition for classes the student was forced to repeat due to the college's actions. Morehouse College, Inc. v. McGaha, 277 Ga. App. 529, 627 S.E.2d 39 (2005) (decided under former O.C.G.A. § 24-2-1).

In a dispute over two subdivision lots, the trial court did not err in admitting evidence that was cumulative to evidence showing a legal property owner's record title. The evidence was not hearsay, as alleged by a claimant who sought title to that property by prescription; further, the evidence was relevant to the issue of whether a claimant's adverse possession ripened into title by prescription. Smith v. Stacey, 281 Ga. 601, 642 S.E.2d 28 (2007) (decided under former O.C.G.A. § 24-2-1).

In a divorce case after the wife was awarded child support, the trial court did not abuse the court's discretion in overruling the husband's objection to the wife's questions regarding checks that had been paid to him but that he had not deposited into his bank account. The wife was entitled to inquire whether the deposited and undeposited checks matched the amount of income reported by the husband. Leggette v. Leggette, 284 Ga. 432, 668 S.E.2d 251 (2008) (decided under former O.C.G.A. § 24-2-1).

Evidence of diminished value after unauthorized cutting of timber.

- Holder of a security deed on property from which timber was cut without authorization was not entitled to damages for the diminished value of the property, but only for the value of the trees; however, evidence of diminished value was relevant for purposes of attorney's fees and punitive damages. Redcedar, LLC v. CML-GA Social Circle, LLC, 341 Ga. App. 110, 798 S.E.2d 334 (2017).

Homeowner countersued a contractor for fraud. Testimony by a subcontractor that the contractor's project supervisor told the subcontractor to increase the bid because the homeowner was "loaded" was not hearsay because the testimony was not admitted to show the truth of the matters asserted, and the testimony was a circumstance relevant to the fraud claim. Lumpkin v. Deventer N. Am., Inc., 295 Ga. App. 312, 672 S.E.2d 405 (2008) (decided under former O.C.G.A. § 24-2-1).

A trial court did not err in admitting evidence that a nursing home was short staffed, lacked various supplies, that residents, including the deceased patient, were observed soiled with urine and waste, and that residents, including the patient, were not turned as often as required, as relevant under former O.C.G.A. § 24-2-1 (see now O.C.G.A. §§ 24-4-401 through24-4-403). The witnesses were certified nursing assistants who were directly involved in patient care while the patient was a resident, and the evidence showed both negligence and that the nursing home was aware of these conditions and did nothing to correct them. Tucker Nursing Ctr., Inc. v. Mosby, 303 Ga. App. 80, 692 S.E.2d 727 (2010) (decided under former O.C.G.A. § 24-2-1).

Evidence in legal malpractice cases.

- Rules of the State Bar of Georgia, while not determinative of the standard of care applicable in a legal malpractice case, may be considered along with other facts and circumstances to determine whether an attorney treated a client with the requisite degree of skill and care. Watkins & Watkins, P.C. v. Williams, 238 Ga. App. 646, 518 S.E.2d 704 (1999) (decided under former O.C.G.A. § 24-2-1).

In a legal malpractice action arising from attorney's alleged filing of a voluntary dismissal based upon the erroneous and negligent assumption that the underlying medical malpractice case could be re-filed, the trial court abused its discretion in granting defendant attorneys' motion in limine effectively prohibiting plaintiffs from introducing expert testimony related to the issue of whether, but for the attorneys' negligence, the plaintiffs would have prevailed in the underlying action. It was an abuse of discretion to conlude that plaintiffs were categorically restricted to the evidence already in the record at the time the attorneys represented them. Blackwell v. Potts, 266 Ga. App. 702, 598 S.E.2d 1 (2004) (decided under former O.C.G.A. § 24-2-1).

Evidence in condemnation case.

- Trial court erred in denying a housing authority's motion in limine in a condemnation case seeking to exclude evidence of the commercial value of the land at issue; since the property was restricted by a federal court order for use as a public playground, there was no basis for the admission of evidence regarding any potential commercial value that the property could have had under other, non-existent circumstances. Housing Auth. of Macon v. Younis, 279 Ga. App. 599, 631 S.E.2d 802 (2006) (decided under former O.C.G.A. § 24-2-1).

Trial court properly granted the Georgia Department of Transportation's (DOT) motion in limine to preclude a property owner from questioning an expert witness about the fact that the expert had been originally hired by the DOT in the DOT's condemnation proceeding as that information was not relevant to the just and adequate compensation determination. H.D. McCondichie Props. v. Ga. DOT, 280 Ga. App. 197, 633 S.E.2d 558 (2006) (decided under former O.C.G.A. § 24-2-1).

In a condemnation action, the trial court erred in denying a lessor's motion in limine to exclude evidence of the lessor's entitlement to statutory pre-judgment interest under O.C.G.A. § 32-3-19 because the fact that the trial court could later instruct the jury to disregard irrelevant evidence was not a reason to allow the jury to hear the irrelevant evidence; under the statutory framework of § 32-3-19, the amount of pre-judgment interest due a condemnee is determined after the jury enters a verdict. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862 (2010) (decided under former O.C.G.A. § 24-2-1).

In a condemnation proceeding, the trial court did not abuse the court's discretion in denying the lessees' motion in limine to exclude evidence that the lessees and the lessor knew of the possible condemnation when the lessees sold the property to the lessor because the Georgia Department of Transportation (DOT) sought to use the evidence to discredit the estimate the lessees and lessor made of the property's market value at the time of the taking by challenging the use of the sale as a factor in reaching that estimate used in that way, the evidence of the knowledge of a possible condemnation would bear, at least indirectly, on the question of the just and adequate compensation due the condemnees. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862 (2010) (decided under former O.C.G.A. § 24-2-1).

In a condemnation proceeding, the trial court did not err in denying a motion in limine to exclude evidence of the rent a lessee charged a sublessee for use of the property before the lessee sold the property to a lessor because the evidence bore upon the property's market value. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862 (2010) (decided under former O.C.G.A. § 24-2-1).

In a condemnation proceeding, the trial court erred in denying the lessees' motion in limine to exclude evidence of the cause of the fire that damaged the restaurant that was on the real property at issue because evidence concerning the reasons giving rise to the uncertainty in insurance coverage (i.e., the cause of the fire), as opposed to the fact of uncertainty, was not relevant to the issue of just and adequate compensation. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862 (2010) (decided under former O.C.G.A. § 24-2-1).

Evidence in negligent construction cases.

- Builder sued homeowners to recover for services rendered in constructing a house under a theory of quantum meruit; the homeowners alleged negligent construction. The trial court properly admitted evidence of the homeowners' listing price for the home as the court instructed the jury that this evidence could be considered only to show the homeowners' opinion of the home's value, in regard to the quantum meruit and negligent construction claims, not to show the home's fair market value. Biederbeck v. Marbut, 294 Ga. App. 799, 670 S.E.2d 483 (2008) (decided under former O.C.G.A. § 24-2-1).

Similar transaction evidence on failure to pay.

- In an action alleging an automobile company's negligent design and placement of the fuel system in a car model, evidence relating to crash tests on vehicles from which the car model involved in the automobile collision evolved, a composite video tape of crash tests and related exhibits and internal documents were relevant to the issue of the automobile manufacturer's continuing negligence in regard to its knowledge of the safety hazard, its failure to warn the public of the danger and its continued marketing of the dangerous product, as well as to the issue of callous disregard upon which basis punitive damages were sought. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319 S.E.2d 470 (1984) (decided under former O.C.G.A. § 24-2-1).

In an action to recover expert fees, admitting evidence of defendant's failure to pay another expert was not error because of the similarity of the transactions involved and the issues of bad faith and fraud. Kent v. White, 238 Ga. App. 792, 520 S.E.2d 481 (1999) (decided under former O.C.G.A. § 24-2-1).

Evidence of witness's compensation relevant.

- In a products liability case, the prejudicial effect of admitting evidence of a car manufacturer's CEO's compensation did not so dramatically outweigh its probative value that it required reversal of the jury verdict; the actions of the CEO in allegedly interfering with a government recall of the vehicle made the CEO's credibility and bias relevant. Chrysler Group, LLC v. Walden, 303 Ga. 358, 812 S.E.2d 244 (2018).

Contract damages.

- In an action alleging that defendant company breached a sales representative agreement by removing areas from the representative's territory and by repeatedly reducing the commission rate below that provided in the agreement, evidence of actual commissions earned in the representative's territory was relevant to prove the representative's claim for damages. Douglas & Lomason Co. v. Hall, 212 Ga. App. 475, 441 S.E.2d 870 (1994) (decided under former O.C.G.A. § 24-2-1).

Summary judgment affidavit was not relevant to material issue.

- Partial summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted to a labor supplier in a construction company's counterclaim alleging tortuous interference with the company's contractual relations, based on an allegedly illegal lien filed by the supplier against a property, when no factual basis was found for the counterclaim and, accordingly, it was dismissed; it was noted that the affidavit of the administrative manager of the company contained irrelevant matter which was properly excluded under former O.C.G.A. § 24-2-1 (see now O.C.G.A. §§ 24-4-401 through24-4-403), as it related to the supplier's failure to sign a lien waiver and it had no logical bearing to the material fact in issue and, further, it was found to be inadmissible hearsay under former O.C.G.A. § 24-3-1(a) (see now O.C.G.A. §§ 24-8-801 and24-8-802). Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003) (decided under former O.C.G.A. § 24-2-1).

Prior lease violations.

- Trial court did not abuse the court's discretion by admitting evidence of previous lease violations in eviction proceedings instituted primarily for a tenant's child's criminal activity, but secondarily based on serious and repeated violations of the material terms of the tenant's lease with a public housing authority; the prior violations were relevant to the secondary reason for terminating the tenant's lease. Martinez v. Hous. Auth., 264 Ga. App. 282, 590 S.E.2d 245 (2003) (decided under former O.C.G.A. § 24-2-1).

Autopsy photographs.

- In a wrongful death action, it was not error for the trial court to refuse to allow publication to the jury of autopsy pictures of the decedent's bowel. Cornelius v. Macon-Bibb County Hosp. Auth., 243 Ga. App. 480, 533 S.E.2d 420 (2000) (decided under former O.C.G.A. § 24-2-1).

Trial court did not err in allowing certain autopsy photographs of the victim to be admitted because the challenged photographs did not depict the victim's autopsy incisions, and the photographs were not especially gory or gruesome in the context of autopsy photographs in a murder case; the photographs were relevant to show the nature and location of the victim's injuries, which corroborated the state's evidence of the circumstances of the killing; contrary to the defendant's assertion, the victim did not die solely from manual strangulation, but also from blunt force head trauma, and the photographs illustrated the nature and extent of the physical beating and resulting trauma sustained by the victim; and exclusion based on unfair prejudice was not warranted. Pike v. State, 302 Ga. 795, 809 S.E.2d 756 (2018).

Trial court did not abuse the court's discretion by admitting into evidence an autopsy photograph as relevant evidence because, even though the trial court concluded that the photograph was unpleasant to look at, the court also concluded that the medical examiner stated that the examiner's explanation of the trajectory and direction of the gunshot could be better explained by the examiner through the use of the photograph. Mitchell v. State, 307 Ga. 855, 838 S.E.2d 847 (2020).

Testimony by officer regarding merger.

- Testimony by an officer and agent of the successor legal entity regarding the merger was relevant and material to explain the course of conduct and corporate intent of the successor corporation after the merger and how the official came to have custody of the records. NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (1998) (decided under former O.C.G.A. § 24-2-1).

Photos in condemnation cases.

- Trial court properly refused to admit photos of a subdivision, tendered by a utility to rebut testimony by the condemnees' appraiser that property around power lines was usually the last piece of residential property to be developed, and was usually relegated to low income housing because the utility: (1) failed to authenticate the pictures by showing the identity or address of the subdivision; (2) failed to present any evidence as to the value of the property in the pictures; and (3) failed to demonstrate whether the subdivision was built before or after the power lines were installed. Ga. Power Co. v. Jones, 277 Ga. App. 332, 626 S.E.2d 554 (2006) (decided under former O.C.G.A. § 24-2-1).

Background and testimony about impact.

- Trial court did not err in preventing an invitee from providing the jury with background information regarding the effects of the injuries on the parties as: (1) the invitee cited no authorities to support this proposition; (2) lost wages were not an element of damages in a loss of consortium claim; (3) witness after witness testified about the effects of the invitee's injury on the invitee and the family; and (4) the issue was moot because a loss of consortium claim was derivative of the invitee's claim, and the jury declined to award the invitee any damages. Magill v. Edd Kirby Chevrolet, Inc., 277 Ga. App. 619, 627 S.E.2d 207 (2006) (decided under former O.C.G.A. § 24-2-1).

Breach of contract.

- In a breach of contract suit brought by a contractor who was engaged to advertise a computer program, the trial court properly excluded as irrelevant evidence regarding the purported illegality of the sale of the program as the reason why the defendants stopped selling the program was irrelevant to the issue of whether the contractor was owed commissions from past sales; even if it was relevant, the trial court was authorized to conclude that the substantially prejudicial impact of the evidence far outweighed any probative value. Smith v. Saulsbury, 286 Ga. App. 322, 649 S.E.2d 344 (2007) (decided under former O.C.G.A. § 24-2-1).

With regard to debtor's claim against creditor for intentional infliction of emotional distress, trial court properly excluded as irrelevant the testimony of debtor's coworker that creditor had been calling coworker at work because it mistook coworker for debtor; this conduct did not affect debtor, who was not aware of it until after debtor had a confrontation with creditor and its employees, and thus the conduct was irrelevant to issue of whether creditor's and employees' conduct was extreme or outrageous. Cook v. Covington Credit of Ga., Inc., 290 Ga. App. 825, 660 S.E.2d 855 (2008) (decided under former O.C.G.A. § 24-2-1).

Evidence of bad faith excluded.

- Trial court properly granted an insurer's motion in limine to exclude all evidence of bad faith and claims handling from the coverage trial because the trial court reasonably concluded that information involving bad faith and whether the insurer acted appropriately with respect to claims administration exceeded the scope of the coverage issues; the trial court found that issues regarding the insurer's handling of the claim and whether the insurer abided by the insurer's claims manual related to bad faith, not coverage, and thus could not be addressed by either party during the coverage phase. Saye v. Provident Life & Accident Ins. Co., 311 Ga. App. 74, 714 S.E.2d 614 (2011), cert. denied, No. S11C1857, 2011 Ga. LEXIS 984 (Ga. 2011) (decided under former O.C.G.A. § 24-2-1).

Trial court did not err in refusing to permit record title holder's descendants to show that a developer agreed to pay a property owner for an easement on the property because the trial court correctly limited the evidence to the issue of adverse possession; the developer's offer to pay the owner was irrelevant to the issues decided by the jury. DeFoor v. DeFoor, 290 Ga. 540, 722 S.E.2d 697 (2012) (decided under former O.C.G.A. § 24-2-1).

Witness failure to appear for lack of timely subpoena service.

- In a personal injury action, because a driver waited until the eve of trial to serve the doctor with a subpoena, the trial court: (1) did not abuse the court's discretion in determining that such service was not reasonable under former O.C.G.A. § 24-10-25(a) (see now O.C.G.A. § 24-13-26); and (2) did not err in refusing to grant the driver a continuance or citing the physician in contempt for failing to appear in court; moreover, since the subpoena was unenforceable, evidence surrounding the doctor's failure to appear became irrelevant under former O.C.G.A. § 24-2-1 (see now O.C.G.A. §§ 24-4-401 through24-4-403). Buster v. Poole, 279 Ga. App. 828, 632 S.E.2d 680 (2006) (decided under former O.C.G.A. § 24-2-1).

Document which is not relevant to any issue in a civil action is properly excluded. Farris v. Pazol, 166 Ga. App. 760, 305 S.E.2d 472 (1983) (decided under former O.C.G.A. § 24-2-1); City of Dalton v. Smith, 210 Ga. App. 858, 437 S.E.2d 827 (1993);(decided under former O.C.G.A. § 24-2-1).

Evidence of settlements with other tortfeasors.

- In an action against a vascular surgeon for medical negligence in ordering an arteriogram to be performed on a patient and in not being available to direct complications resulting therefrom, it was error to admit evidence of plaintiff's settlements with other alleged tortfeasors since the relevant issues were whether the defendant doctor was negligent and, if so, the damages for which the plaintiff should be compensated. Allison v. Patel, 211 Ga. App. 376, 438 S.E.2d 920 (1993) (decided under former O.C.G.A. § 24-2-1).

Fact and amount of a settlement with other parties is not relevant to the amount of damages to be awarded and were properly excluded from the jury's consideration. Bryant v. Haynie, 216 Ga. App. 430, 454 S.E.2d 533 (1995) (decided under former O.C.G.A. § 24-2-1).

Limine ruling not violated.

- Trial court did not abuse the court's discretion in concluding that an insurer did not violate the court's limine ruling excluding all evidence of bad faith and claims handling by submitting evidence that an insured did not claim that a disability arose from injury until after the insured's benefits were terminated under the sickness clause of the insurance policy because evidence relating to how the insurer characterized the condition was relevant to whether the condition arose from an injury or a sickness; although the insurer's assertion that the insured received payment under the policy potentially touched on claims handling, it also gave the jury context for how the disability claim and the litigation arose. Saye v. Provident Life & Accident Ins. Co., 311 Ga. App. 74, 714 S.E.2d 614 (2011), cert. denied, No. S11C1857, 2011 Ga. LEXIS 984 (Ga. 2011) (decided under former O.C.G.A. § 24-2-1).

Testimony on date rape drug admitted.

- Trial court did not abuse the court's discretion in denying an auto driver's motion in limine and in permitting a man, with whom the driver had been prior to an auto accident, to testify that the driver of the car, who collided the driver's car with another vehicle, had been at the man's residence to provide sex for money as the evidence was relevant to the driver's defense that the man had secretly slipped the driver a date rape drug, causing the driver to flee from the man. Further, the trial court did not abuse the court's discretion in granting the motion to the extent that the man could only testify as to the woman being a prostitute as impeachment evidence. Jackson v. Heard, 264 Ga. App. 620, 591 S.E.2d 487 (2003) (decided under former O.C.G.A. § 24-2-1).

Observations of teacher's conduct in student's class were relevant and material to the issue of the teacher's alleged mistreatment of the student. Houston v. Kinder-Care Learning Ctrs., Inc., 208 Ga. App. 235, 430 S.E.2d 24 (1993) (decided under former O.C.G.A. § 24-2-1).

Lottery ticket investigator's statement was relevant.

- In a dispute over a $1 million lottery ticket, an investigator's testimony regarding the investigator's conversations with one claimant, including that the claimant did not remember what gas station the claimant purchased the ticket from and that the claimant claimed to always play the numbers on the ticket, which was a quick pick ticket, was highly relevant to the main issue in the case and was properly allowed. Heard v. Payne, 350 Ga. App. 283, 828 S.E.2d 657 (2019), cert. denied, 2020 Ga. LEXIS 19 (Ga. 2020).

Evidence in malicious prosecution case.

- Malicious prosecution case was remanded to the trial court because the trial court, after concluding that the plaintiff's past criminal history was relevant, should have thereafter considered whether the plaintiff's prior arrests nevertheless should be excluded because of their inherently prejudicial nature or because those arrests potentially would confuse or mislead the jury. Rivers v. K-Mart Corp., 321 Ga. App. 788, 743 S.E.2d 464 (2013).

Relevant Evidence in Criminal Cases

Character.

- General character of the defendant and the defendant's conduct in other transactions is irrelevant unless the defendant chooses to put the defendant's character in issue. Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1952) (decided under former Code 1933, § 38-201); Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968); Dawson v. State, 120 Ga. App. 242, 170 S.E.2d 45 (1969) (decided under former Code 1933, § 38-201); Wooten v. State, 125 Ga. App. 635, 188 S.E.2d 409 (1972); Nooner v. State, 131 Ga. App. 563, 206 S.E.2d 660 (1974) (decided under former Code 1933, § 38-201); Mikle v. State, 236 Ga. 748, 225 S.E.2d 275 (1976); Brown v. State, 237 Ga. 467, 228 S.E.2d 853 (1976) (decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

For cases concerning evidence of state of mind, plan, intent, or motive.

- See Thomas v. State, 244 Ga. 608, 261 S.E.2d 389 (1979) (decided under former Code 1933, § 38-201); Smith v. State, 151 Ga. App. 697, 261 S.E.2d 439 (1979); Walker v. State, 156 Ga. App. 842, 275 S.E.2d 755 (1980) (decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

As defendant, a sheriff, was not empowered to use the sheriff's department as defendant's personal domain, evidence of corruption in the sheriff's office was relevant and admissible, and the prosecution was well within bounds when the prosecution theorized that defendant killed the victim, a political opponent, to prevent the victim from uncovering evidence of defendant's corruption. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005) (decided under former O.C.G.A. § 24-2-1).

By placing intent at issue by claiming at trial that the defendant's delusions completely negated criminal intent, the state needed evidence that the defendant acted with intent to commit the crimes of murder and possession of a firearm; thus, the trial court did not abuse the court's discretion in admitting evidence of a prior New York crime since as to both crimes, the defendant used a handgun to assault people that the defendant perceived had committed an offense against the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257 (2019).

Evidence of the counterfeit bills that were released from the appellant's vehicle were relevant to explain why the appellant fled from law enforcement and engaged in dangerous behavior leading up to the fatal crash because, though motive was not an essential element of any offense, evidence of motive was generally relevant in murder prosecutions, and trial counsel did not perform deficiently in failing to object. Calhoun v. State, Ga. , 839 S.E.2d 612 (2020).

Defendant's demeanor at the time of arrest.

- Trial court did not abuse the court's discretion by allowing a detective who arrested defendant after defendant took a woman's purse to testify that, when defendant was arrested, defendant was uncooperative, verbally combative, and smelled of alcohol. Moore v. State, 265 Ga. App. 511, 594 S.E.2d 734 (2004) (decided under former O.C.G.A. § 24-2-1).

Circumstances of defendant's arrest.

- Gun was properly admitted into evidence at a trial on sex offenses because the gun was relevant to the issue of a witness's alleged bias and was also admissible as evidence of the circumstances of the defendant's arrest; on the night of the defendant's arrest, the witness told the police that the defendant had just raped the witness's niece and was carrying a 9mm gun. Ward v. State, 274 Ga. App. 511, 618 S.E.2d 154 (2005) (decided under former O.C.G.A. § 24-2-1).

Trial court did not err in admitting evidence that police were at the defendant's residence to serve defendant with an arrest warrant because that evidence did not improperly place the issue of character into evidence, but was necessary to explain why police were able to detain, handcuff, and search the defendant. Moreover, a limiting instruction was also issued advising the jurors that they were not to consider the warrant for any purpose other than to explain the officers' presence at the defendant's home. Thrasher v. State, 289 Ga. App. 399, 657 S.E.2d 316 (2008) (decided under former O.C.G.A. § 24-2-1).

Evidence discovered in search of co-indictee's home.

- Evidence recovered by law enforcement during a search of the co-indictee's home, including marijuana, baggies and a digital scale, was clearly relevant and admissible as the defendant and the co-indictee were jointly charged with conspiracy to distribute marijuana based upon their attempt to sell marijuana to the victim prior to the victim's death; furthermore, for the same reasons, the defendant failed to show that the admission of that evidence was more prejudicial than probative. Thorpe v. State, 304 Ga. 266, 818 S.E.2d 547 (2018).

Commission of independent offenses.

- Evidence which in any manner shows or tends to show that the accused has committed another crime separate and distinct from that for which the accused is on trial is generally irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other. Patterson v. State, 121 Ga. App. 159, 172 S.E.2d 873 (1970); Wooten v. State, 125 Ga. App. 635, 188 S.E.2d 409 (1972) (decided under former Code 1933, § 38-201); Banks v. State, 169 Ga. App. 645, 314 S.E.2d 480 (1984);(decided under former O.C.G.A. § 24-2-1).

Evidence which shows or tends to show that the defendant has committed another crime independent of the offenses for which defendant is on trial is irrelevant and inadmissible. Laney v. State, 159 Ga. App. 609, 284 S.E.2d 114 (1981) (decided under former O.C.G.A. § 24-2-1).

Evidence not relevant to intent.

- Trial court erred in excluding proffered evidence regarding how the detention center handled the defendant and the other detainee after the fight, because the proffered evidence dealt with administrative actions or decisions that occurred after the defendant struck the officer and those actions or decisions were not part of the circumstances connected with the act for which the defendant was accused and, thus, was not relevant under former O.C.G.A. § 24-2-1 to the issue of intent. Hickey v. State, 325 Ga. App. 496, 753 S.E.2d 143 (2013)(decided under former O.C.G.A. § 24-2-4).

Evidence showing res gestae.

- Trial court did not err in denying defendant's motion for mistrial after one of the child victims testified that defendant battered the child's grandmother shortly after the grandmother stumbled upon defendant molesting that child as the evidence supported a finding that this battering was part of the res gestae of the child molestation crime. Prather v. State, 279 Ga. App. 552, 631 S.E.2d 758 (2006) (decided under former O.C.G.A. § 24-2-1).

Because the evidence presented against both the defendants showed numerous connections between the crimes such that proof of the former tended to prove the latter, and a vehicle theft committed by both the defendants earlier in the day could be considered a continuation of a crime spree and therefore admissible as part of the res gestae, the trial court did not err in admitting the evidence as similar crimes evidence. Richard v. State, 287 Ga. App. 399, 651 S.E.2d 514 (2007) (decided under former O.C.G.A. § 24-2-1).

Evidence that the defendant was a drug dealer and gave the police a false name when questioned after the alleged crime was committed was admissible as relevant and part of the res gestae as the former was incidental to and followed directly from the defendant's participation in the sale of marijuana to the victim, and the latter was part of what transpired shortly after the commission of the victim's murder; moreover, this was true even if the defendant's character was incidentally placed in issue. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007) (decided under former O.C.G.A. § 24-2-1).

Evidence that the defendant hid under a bed when police came to execute an arrest warrant was properly admitted as the evidence was part of the res gestae of the arrest. Gilford v. State, 295 Ga. App. 651, 673 S.E.2d 40 (2009), cert. denied, No. S09C0827, 2009 Ga. LEXIS 258 (Ga. 2009), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-1).

Admission of other acts evidence in murder trial constituted harmless error.

- Trial court abused the court's discretion admitting 2005 shooting evidence of the appellant's firing a handgun, but that error was harmless in light of the array of other strong evidence demonstrating the appellant's guilt and considering it was an evidentiary error and not of constitutional dimensions; given the overall strength of the other evidence of the appellant's guilt, the Georgia Supreme Court held that it was highly probable that erroneously admitted evidence of the 2005 shooting did not contribute to the jury's verdict. Jackson v. State, 306 Ga. 69, 829 S.E.2d 142 (2019).

When evidence of other crime admissible.

- When evidence is relevant for purpose of showing circumstances of arrest, it will not be excluded because the evidence incidentally shows commission of another crime. Ray v. State, 157 Ga. App. 519, 277 S.E.2d 804 (1981) (decided under former O.C.G.A. § 24-2-1).

Two competing principles must be considered in deciding whether to admit testimony relating to an offense other than the one charged: on the one hand, there is the rule that evidence of the commission of a crime other than the one charged is generally not admissible; on the other hand, there is the rule that testimony as to the circumstances connected with the arrest is admissible. Bryan v. State, 157 Ga. App. 635, 278 S.E.2d 177 (1981) (decided under former O.C.G.A. § 24-2-1).

Evidence of other crimes may be admitted if there is sufficient similarity or connection between the other crimes and the crime charged that proof of the former tends to prove the latter. Ballweg v. State, 158 Ga. App. 576, 281 S.E.2d 319 (1981) (decided under former O.C.G.A. § 24-2-1).

While no gun was used in committing the crimes for which the defendant was being tried, evidence of the gun used in a prior aggravated assault and armed robbery of a separate victim was relevant to the charges being tried because the evidence connected the defendant to the identification documents presented to police in close proximity to the instant victim's body by the person who had custody of the victim's car on the day the victim was killed. Brooks v. State, 281 Ga. 514, 640 S.E.2d 280 (2007) (decided under former O.C.G.A. § 24-2-1).

Because evidence of the defendant's prior drug use, and history of crimes committed against family members fueled by that drug use, were properly admitted as relevant to the crime's charged, despite incidentally placing the defendant's character in issue, convictions for both aggravated assault and simple assault were upheld on appeal. Jones v. State, 283 Ga. App. 812, 642 S.E.2d 887 (2007) (decided under former O.C.G.A. § 24-2-1).

Trial court's ruling that the other-acts evidence would not be admitted was vacated because the appellate court could not discern whether the trial court considered whether the defendants had taken affirmative steps to withdraw intent as an element to be proved by the state or whether it compared the state of mind involved in the extrinsic offenses with that involved in the charged offenses before finding that the other-acts evidence constituted nothing more than inadmissible propensity evidence. State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).

Trial court did not abuse the court's discretion by allowing the state to introduce evidence of the defendant's prior driving under the influence (DUI) conviction because the evidence was not unduly prejudicial as the relevance of the prior DUI was heightened since the defendant's defense was that the defendant did not drive the vehicle while intoxicated but drank after stopping; thus, the prior DUI was relevant to the intent to drive while intoxicated since the defendant did so before. King v. State, 338 Ga. App. 783, 792 S.E.2d 414 (2016).

Other acts evidence regarding two earlier instances of obstructing a law enforcement officer was relevant and admissible because, by expressly challenging whether the officer was lawfully discharging the officer's official duties, the defendant implicitly challenged the defendant's own knowledge that the officer's commands to the defendant were lawful; and it established that, on past occasions, the defendant had encountered officers under similar circumstances and been apprehended or accused of obstructing the officers when the defendant fled, such that the defendant knew that the officer's command that the defendant talk with the officer was made in the lawful discharge of the officer's official duties and that the defendant was not free to flee. Green v. State, 339 Ga. App. 263, 793 S.E.2d 156 (2016).

Testimony regarding similar transactions that occurred years earlier was properly admitted as it was relevant to show the defendant's lustful disposition with respect to preteen or teenaged girls and the defendant's pattern of molesting young girls with whom the defendant was living. Harris v. State, 340 Ga. App. 865, 798 S.E.2d 498 (2017).

O.C.G.A. § 24-4-404(b) only relates to "other" crimes, wrongs, or acts that are independent of or extrinsic to the charged offense. If the other crime, wrong, or act is intrinsic to the charged offense or inextricably intertwined with it, it is admissible under O.C.G.A. § 24-4-401. Such evidence was called part of the res gestae of the offense under the rules in effect prior to the new Evidence Code, adopted in 2013. State v. Battle, 344 Ga. App. 565, 812 S.E.2d 1 (2018).

Although a prior victim's testimony was remote in time, the trial court did not abuse the court's discretion in allowing the prior instance of child molestation to be admitted because it was relevant to show the defendant's lustful disposition with respect to younger females. Wilson v. State, 354 Ga. App. 64, 840 S.E.2d 601 (2020).

Trial court did not abuse the court's discretion when the court concluded that the evidence of two prior acts was relevant because the 2002 attack showed that the defendant, when affronted by a romantic partner, would call on male friends to help subdue the partner, as well as the 2003 vase-throwing incident with the defendant biting the victim, were both strikingly similar to the assault upon the defendant's boyfriend, which resulted in the boyfriend's death. Morgan v. State, Ga. App. , 841 S.E.2d 430 (2020).

Trial court did not plainly err in admitting the defendant's Mississippi driving record which related to a prior DUI conviction because the defendant failed to identify any specific evidence that could have been presented to prove the defendant had notice that the defendant was driving on a suspended license and, as the defendant admitted, the redacted driving record was clearly relevant. Hines v. State, 350 Ga. App. 752, 830 S.E.2d 380 (2019).

Trial court did not abuse the court's discretion by allowing the admission of evidence regarding the defendant's prior drug possession arrest because the evidence of prior drug activity was highly probative of intent to sell a controlled substance for which the defendant was on trial and the prior act of drug possession happended while the defendant was driving a car in the same area where the sale of the methamphetamine during the first buy occurred. Moton v. State, 351 Ga. App. 789, 833 S.E.2d 171 (2019).

Evidence of defendant's gang affiliation and claimed prior murders relevant after defendant opened door.

- In the defendant's murder trial, defense counsel opened the door to evidence from two witnesses about the defendant's gang activities and prior murders by suggesting that the witnesses had named the defendant as the shooter because the witnesses were afraid of the actual shooter; this evidence was relevant under O.C.G.A. § 24-4-401 and not unduly prejudicial under O.C.G.A. § 24-4-403. Strother v. State, 305 Ga. 838, 828 S.E.2d 327 (2019).

Prior convictions inadmissible.

- In a malice murder and aggravated assault case, because the defendant never claimed, nor was there any evidence to suggest, that the shooting was the result of an accident or mistake, whether the defendant's actions were the result of an accident or mistake was irrelevant, and it was error for the trial court to admit the 2006 guilty pleas to aggravated assault. Brown v. State, 303 Ga. 158, 810 S.E.2d 145 (2018).

Prior conviction of person not testifying inadmissible.

- Defendant's attempt to introduce a prior conviction of a person who did not testify or appear at the trial was correctly rejected by the trial court as irrelevant to the issues on trial. Holder v. State, 194 Ga. App. 790, 391 S.E.2d 808 (1990) (decided under former O.C.G.A. § 24-2-1).

Criminal convictions of a person not called as a witness were not admissible for purposes of impeachment, and since the person's criminal history was not otherwise relevant, its exclusion under former O.C.G.A. § 24-2-1 (see now O.C.G.A. §§ 24-4-401 through24-4-403) was proper. Gadson v. State, 252 Ga. App. 347, 556 S.E.2d 449 (2001) (decided under former O.C.G.A. § 24-2-1).

Testimony that defendant was suspected of the theft of a gun used in committing offenses was probative of whether defendant was in possession of a particular gun, the purpose for which the testimony was offered. Baker v. State, 225 Ga. App. 848, 485 S.E.2d 548 (1997) (decided under former O.C.G.A. § 24-2-1).

Prior difficulties evidence.

- When the defendant was charged with aggravated assault, evidence of a previous incident when the defendant had punched the victim in the face while the victim was sleeping was admissible as prior difficulties evidence because the evidence was relevant to show the defendant's motive, intent, and bent of mind. McCullors v. State, 291 Ga. App. 393, 662 S.E.2d 197 (2008) (decided under former O.C.G.A. § 24-2-1).

Testimony by the victims' mother regarding the defendant's prior history of violence toward the children or in the children's presence was relevant as probative of the defendant's ability to execute the threats to which the victims had testified. Allen v. State, 345 Ga. App. 599, 814 S.E.2d 740 (2018).

Prior conduct by victim.

- In a murder prosecution in which the defendant admitted that the defendant killed the victim, but claimed that the defendant was justified in doing so because of his daughter's molestation by the victim, evidence of the alleged molestation was not relevant since the law will not justify a killing for deliberate revenge no matter how grievous the past wrong may have been. Brown v. State, 270 Ga. 601, 512 S.E.2d 260 (1999) (decided under former O.C.G.A. § 24-2-1).

Testimony that defendant was suspected of the theft of a gun used in committing offenses was probative of whether defendant was in possession of a particular gun, the purpose for which the testimony was offered. Baker v. State, 225 Ga. App. 848, 485 S.E.2d 548 (1997) (decided under former O.C.G.A. § 24-2-1).

In a prosecution for rape, the trial court properly barred defendant's crossexamination of a police officer about whether the victim's stepfather told the officer that someone had told the stepfather that the victim was pregnant. Lee v. State, 241 Ga. App. 182, 525 S.E.2d 426 (1999) (decided under former O.C.G.A. § 24-2-1).

Trial court's error in not permitting the defendant to show that the wife's minor daughter, whom the defendant was charged with molesting, made an allegation of molestation with respect to another individual that the daughter later denied, was harmless given the overwhelming evidence against defendant, including the facts that there was photographic evidence that the daughter was molested in the defendant's bedroom, that the wife and the daughter's uncle both identified the daughter in the photographs, that a Polaroid camera like that used to take the photographs was found in defendant's home, that the wife had testified that she had not left the daughter alone in the house with any man other than defendant, and that the photographs were found in a house owned by defendant in a file containing personal items. Holloway v. State, 278 Ga. App. 709, 629 S.E.2d 447 (2006) (decided under former O.C.G.A. § 24-2-1).

In a prosecution for child molestation, aggravated child molestation, and statutory rape allegedly committed by the defendant against three of the defendant's children, testimony from one of the defendant's other sons concerning similar transactions committed against him was properly admitted in order to show the defendant's bent of mind and lustful disposition towards the defendant's own children. McCoy v. State, 278 Ga. App. 492, 629 S.E.2d 493 (2006) (decided under former O.C.G.A. § 24-2-1).

In a felony murder and aggravated assault prosecution, the trial court did not err in excluding evidence of the victim's prior violent acts, given that at the time of the confrontation with the defendant, the victim was no longer the aggressor, any prior confrontation between the two had already ended, and when the defendant confronted the victim with a loaded gun, the defendant became the aggressor, precipitating the deadly confrontation that ensued; hence, the defendant failed to make a prima facie showing of justification. Milner v. State, 281 Ga. 612, 641 S.E.2d 517 (2007) (decided under former O.C.G.A. § 24-2-1).

Evidence of victim's violent acts.

- Trial court did not abuse the court's discretion in excluding evidence that the victim pulled a gun on a third person at a dice game the week prior to the murder because the defendant failed to show how that evidence met basic admissibility requirements as to relevancy and offered nothing more than speculation and conjecture that the third person could have been involved in the victim's murder, regardless of the applicability of O.C.G.A. § 24-4-404(b). Roberts v. State, 305 Ga. 257, 824 S.E.2d 326 (2019).

Evidence of victim's relationship.

- In a murder prosecution in which the victim's body was never found, evidence of the victim's relationships at the time of the victim's disappearance was relevant because it rendered the inference that the victim did not run away but was killed more probable than it would be without the evidence. Hinton v. State, 280 Ga. 811, 631 S.E.2d 365 (2006) (decided under former O.C.G.A. § 24-2-1).

In a murder trial, testimony from the victim's girlfriend regarding their relationship was not irrelevant; the girlfriend called police to report that the victim was missing, and she explained that she did so because of their relationship. Simmons v. State, 282 Ga. 183, 646 S.E.2d 55 (2007) (decided under former O.C.G.A. § 24-2-1).

Because the victim's understanding of what the state had to prove to obtain a conviction was irrelevant, the defendant was properly curtailed from questioning the victim on this matter. Mayhew v. State, 299 Ga. App. 313, 682 S.E.2d 594 (2009), cert. denied, No. S09C2059, 2009 Ga. LEXIS 786 (Ga. 2009) (decided under former O.C.G.A. § 24-2-1).

Evidence rehabilitating victim's credibility not relevant or admissible.

- Trial court erred in permitting the state to elicit testimony that the co-defendant's father attempted to influence the victim by bribing the victim into changing the victim's account of what took place as a means of rehabilitating the victim's credibility because the state did not contend that cross-examination of the victim included any manner of impeachment that would permit introduction of the complained-of evidence as being generally relevant; and there was no rule that generally opened the door to otherwise inadmissible evidence. Belcher v. State, 344 Ga. App. 729, 812 S.E.2d 51 (2018).

Evidence regarding victim's use of seatbelt.

- Trial court properly excluded evidence of seatbelt-use because evidence of the victim's failure to wear a seatbelt was irrelevant to causation and inadmissible in a criminal case as it did not tend to make it either more or less probable that an accident caused by the defendant proximately caused the victim's death, in violation of the statutes for homicide by vehicle in the first degree predicated on a hit-and-run offense and for hit and run. State v. Mondor, 306 Ga. 338, 830 S.E.2d 206 (2019).

Items found at the scene of the defendant's arrest are relevant and are admissible at trial. Thompson v. State, 168 Ga. App. 734, 310 S.E.2d 725 (1983) (decided under former O.C.G.A. § 24-2-1).

Evidence of defendant's 28 years of physical and psychological abuse by defendant's two former spouses was properly excluded at defendant's trial for murder since the defendant was permitted to adequately testify as to the facts in the defendant's relationship with the victim which allegedly caused the defendant's fear of the victim. Clenney v. State, 256 Ga. 116, 344 S.E.2d 216 (1986) (decided under former O.C.G.A. § 24-2-1).

Evidence victim's father was sexual abuse victim irrelevant.

- Since there was no logical link between the fact that the victim had a father who also claimed to be a victim of sexual abuse and a conclusion that the victim might therefore be an unreliable witness whose testimony regarding the defendant's actions was not worthy of belief, the trial court did not abuse the court's discretion in finding that any evidence that the victim's father suffered sexual abuse was irrelevant. Morris v. State, 341 Ga. App. 568, 802 S.E.2d 13 (2017).

Victim's condition relevant in cruelty to children case.

- Trial court did not commit reversible error when the court permitted the state to bring the first victim into the courtroom because evidence of the first victim's condition was clearly relevant to the state's cruelty to children in the first and second charges, including that the defendant caused the first victim bodily harm by rendering the first victim's brain, a member of the first victim's body, useless by violently shaking the victim, causing permanent brain damage; the probative value of viewing the victim was not substantially outweighed by the danger of unfair prejudice; and under the Crime Victims' Bill of Rights statute, O.C.G.A. § 17-7-1 et seq., the first victim had the right to be present at the trial. Freeman v. State, 333 Ga. App. 6, 775 S.E.2d 258 (2015).

Flight, even an escape from jail after the offense, is a circumstance which may be weighed by the jury in connection with other circumstances to determine the guilt of the accused. The fact that an escape from the courthouse during trial was involved does not remove such conduct from former O.C.G.A. § 24-2-1 (see now O.C.G.A. §§ 24-4-401 through24-4-403). Smith v. State, 184 Ga. App. 739, 362 S.E.2d 384, cert. denied, 184 Ga. App. 910, 362 S.E.2d 384 (1987) (decided under former O.C.G.A. § 24-2-1).

Chain of custody and tampering.

- In proving chain of custody, the state is not required to show that a substance is guarded each minute the substance is in one's custody, and in the absence of a showing to the contrary, the chain is not thereby broken. Williams v. State, 153 Ga. App. 421, 265 S.E.2d 341 (1980) (decided under former Code 1933, § 38-201).

When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight of the evidence. Williams v. State, 153 Ga. App. 421, 265 S.E.2d 341 (1980) (decided under former Code 1933, § 38-201); Mayfield v. State, 153 Ga. App. 459, 265 S.E.2d 366 (1980); Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980) (decided under former Code 1933, § 38-201);(decided under former Code 1933, § 38-201).

Because defendant produced no affirmative evidence of tampering, substitution, or mishandling of the methamphetamine at the crime lab, there was no error in treating the crime lab as a single link in the chain of custody for admissibility purposes. Eaton v. State, 294 Ga. App. 124, 668 S.E.2d 770 (2008) (decided under former O.C.G.A. § 24-2-1).

Exclusion of battered person's syndrome evidence.

- If the defendant suffered from a psychological condition that caused the defendant to believe the defendant had to hurt the defendant's child to help the child, the only way the jury could know about such a condition was through expert testimony, and thus, it was error to exclude the defendant's proffered expert testimony of battered person syndrome; however, such error was harmless given the overwhelming weight of evidence which established that the defendant's conduct was knowing, if not intentional. Pickle v. State, 280 Ga. App. 821, 635 S.E.2d 197 (2006), cert. denied, No. S06C2150, 2007 Ga. LEXIS 110, 111 (Ga. 2007) (decided under former O.C.G.A. § 24-2-1).

Refusal to allow defendant to stipulate to intercourse in rape trial.

- Trial court did not abuse the court's discretion when the court refused to allow a defendant to stipulate to having sex with a rape victim in an effort to keep evidence of the victim's rape related pregnancy, her subsequent abortion, and DNA evidence that showed that there was a 99.9969% probability that the defendant had fathered the aborted fetus from being presented to the jury; the evidence was relevant to the state's case against the defendant, particularly because the defendant had denied any sexual contact with the victim, and the defendant could not selectively choose which incriminating evidence the defendant would admit to. Mims v. State, 291 Ga. App. 777, 662 S.E.2d 867 (2008), cert. denied, No. S08C1691, 2008 Ga. LEXIS 768 (Ga. 2008) (decided under former O.C.G.A. § 24-2-1).

Evidence of license suspension agreement relevant in DUI case.

- In a DUI case under O.C.G.A. § 40-6-391(a)(1), evidence of an agreement the defendant entered in an administrative license suspension (ALS) proceeding, in which the defendant agreed to plead guilty to DUI in exchange for the return of the defendant's license, was relevant and admissible in the defendant's DUI case although the defendant later decided not to plead guilty and go to trial, and although the agreement did not recite that it could be used against the defendant at trial. Smith v. State, 345 Ga. App. 43, 812 S.E.2d 117 (2018).

Admission of horizontal gaze nystagmus test.

- In the defendant's DUI trial, O.C.G.A. § 40-6-391(a)(1), horizontal gaze nystagmus (HGN) test was properly admitted, although the defendant stated the defendant had taken Prozac, which would influence the results, because the evidence was relevant as to whether the defendant showed signs of impairment, O.C.G.A. § 24-4-401, and the defendant remained free to attempt to persuade the factfinder that the testimony be afforded little weight under the circumstances. Cherry v. State, 345 Ga. App. 409, 813 S.E.2d 408 (2018), cert. denied, 2018 Ga. LEXIS 720 (Ga. 2018).

Video admissible in DUI case.

- Trial court did not err by allowing the state to admit demonstrative evidence of video clips showing three types of horizontal gaze nystagmus because the officer's testimony made clear that the video clips were not of the defendant, but that in the substantial particulars, the conditions of the video clips and the officer's observations of the defendant were similar as both showed the same kind of nystagmus. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017).

For cases concerning photographic and diagrammatic evidence.

- See Smith v. State, 202 Ga. 851, 45 S.E.2d 267 (1947) (general admissibility) (decided under former Code 1933, § 38-201); Crittenden v. State, 98 Ga. App. 329, 105 S.E.2d 778 (1958) (skid marks) (decided under former Code 1933, § 38-201); Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979) (photograph of rape victim's injuries) (decided under former Code 1933, § 38-201); Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979) (videotape recording) (decided under former Code 1933, § 38-201); Williams v. State, 151 Ga. App. 683, 261 S.E.2d 430 (1979) (shoes and footprints) (decided under former Code 1933, § 38-201); Wofford v. State, 152 Ga. App. 739, 263 S.E.2d 707 (1979) (diagrams of scene of crime) (decided under former Code 1933, § 38-201); Miller v. State, 94 Ga. App. 259, 94 S.E.2d 120 (1956) (photographs of liquor) (decided under former Code 1933, § 38-201); Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979) (photograph of teeth marks on victim's breast) (decided under former Code 1933, § 38-201); City Council v. Lee, 153 Ga. App. 94, 264 S.E.2d 683 (1980) (movie film) (decided under former Code 1933, § 38-201); Craft v. State, 154 Ga. App. 682, 269 S.E.2d 490 (1980) (authentication) (decided under former Code 1933, § 38-201); Craft v. State, 154 Ga. App. 682, 269 S.E.2d 490 (1980) (change in scene photographed) (decided under former Code 1933, § 38-201); Tatum v. State, 206 Ga. 171, 56 S.E.2d 518 (1949) (photographs of deceased after death) (decided under former Code 1933, § 38-201); Blount v. State, 214 Ga. 433, 105 S.E.2d 304 (1958) (photographs of deceased, an ax, and wooden bar) (decided under former Code 1933, § 38-201); Williams v. State, 151 Ga. App. 765, 261 S.E.2d 487 (1979) ("gruesome" photographs of deceased victim) (decided under former Code 1933, § 38-201); Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993) (photograph of deceased) (decided under former Code 1933, § 38-201); Gaylor v. State, 247 Ga. 759, 279 S.E.2d 207 (1981) (photograph of deceased) (decided under former Code 1933, § 38-201); Williams v. State, 255 Ga. 97, 335 S.E.2d 553 (1985) (photograph of child in hospital bed surrounded by medical equipment) (decided under former O.C.G.A. § 24-2-1); Gosdin v. State, 176 Ga. App. 381, 336 S.E.2d 261 (1985) (photograph of defendant printed from negative taken from camera allegedly stolen by defendant) (decided under former O.C.G.A. § 24-2-1); Pittman v. State, 178 Ga. App. 693, 344 S.E.2d 511 (1986) (anatomically correct diagram of child molestation victim's body) (decided under former O.C.G.A. § 24-2-1).

Defendant's conviction for aggravated child molestation under O.C.G.A. § 16-6-4 was affirmed because the trial court did not commit plain error by admitting photographs of the victim's injuries as the photographs were material and relevant to issues raised at trial, and the photographs were admissible even if the photographs, to some extent, duplicated other photographs. Robinson v. State, 342 Ga. App. 624, 805 S.E.2d 103 (2017).

Exhibits properly admitted.

- There was no prejudice to the defendant in the admission of exhibits which merely showed the lead fragments, displayed against a neutral background, that were removed from the victim's head; admission of evidence of "prior difficulties" between the two groups was proper to explain how two people became the innocent victims of the two groups' hostilities. Perry v. State, 276 Ga. 836, 585 S.E.2d 614, rev'd, 276 Ga. 839, 584 S.E.2d 253 (2003) (decided under former O.C.G.A. § 24-2-1).

Photos were arguably objectionable.

- Three photos from the hospital series that did not depict the victim at all were arguably objectionable by counsel and an objection may have been sustained under O.C.G.A. § 24-4-403 as to relevancy but no ineffective assistance of counsel was shown based on the other evidence against the appellant being strong and the appellant failing to show a reasonable probability that the result of the trial would have been different. Davis v. State, 299 Ga. 180, 787 S.E.2d 221 (2016).

Photographs of the victim of a crime are admissible when the photographs are relevant on the issues in the case, although the photographs may be inflammatory and prejudicial to the accused. Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980) (decided under former Code 1933, § 38-201).

When defendants contended defendants were not responsible for the injuries and poor physical condition of deceased child, 12 photos of the body and one of clothing were relevant to the issues in the case to show the unlikelihood that these injuries would have been self-inflicted or accidental, as were autopsy photographs of a fractured rib. Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980) (decided under former Code 1933, § 38-201).

Photographs of body of victim showing the body's location when found and various aspects of the wounds causing death were relevant and material to show that the victim was bludgeoned and shot twice in the head. Knowles v. State, 246 Ga. 378, 271 S.E.2d 615 (1980) (decided under former Code 1933, § 38-201); Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980); Strickland v. State, 247 Ga. 219, 275 S.E.2d 29 (decided under former Code 1933, § 38-201); 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981);cert. denied,(photographs of victims of crime, wounds, location) (decided under former Code 1933, § 38-201).

In a prosecution for a violation of O.C.G.A. § 16-5-21(a)(2), as the indictment alleged that the aggravated assault was committed with objects likely to cause serious bodily injury (a broom handle and the defendant's feet and hands), photos depicting the condition of the victim, one of which depicted the defendant's foot print on the victim's face, were relevant to establish the nature and extent of the injury. Massey v. State, 278 Ga. App. 303, 628 S.E.2d 706 (2006) (decided under former O.C.G.A. § 24-2-1).

Trial court did not err by admitting three photographs of a victim's bullet wound to the head and two photographs of defendant's handgun as the photographs were not repetitive or cumulative, and the photographs presented the evidence from different distances and vantage points in order to accurately depict the nature and location of the victim's wound and the location of the weapon when the weapon was found; moreover, the victim's injuries and the weapon used to inflict those injuries were obviously relevant to the charges against defendant. Smith v. State, 279 Ga. App. 211, 630 S.E.2d 833 (2006) (decided under former O.C.G.A. § 24-2-1).

Defendant's motion for a mistrial based on the admission of a photograph of the victim's head was not an abuse of discretion as: (1) if pre-autopsy photographs were relevant and material to any issue in the case, those photographs were admissible even if those photographs were duplicative and might inflame the jury; (2) photographs showing the extent and nature of the victim's wounds were material and relevant, even if the cause of death was not in dispute; (3) the state had the burden to prove beyond a reasonable doubt that the defendant caused the death of the victim with malice aforethought; and (4) the photograph was relevant to the state's claim that the defendant had done so by shooting a single shot into the victim's head. Bradley v. State, 281 Ga. 173, 637 S.E.2d 19 (2006) (decided under former O.C.G.A. § 24-2-1).

Trial court properly admitted one of three photographs of the victim's body which showed an exterior mark of strangulation as such was not overly gruesome and inflammatory; moreover, pre-incision photos of a victim which depicted the location and nature of the victim's wounds were admissible as both relevant and material. McWilliams v. State, 280 Ga. 724, 632 S.E.2d 127 (2006) (decided under former O.C.G.A. § 24-2-1).

Photographs of a victim's body, after the body had been taken to the crime lab, were material, relevant, and admissible as the photographs showed the location, nature, and extent of the victim's multiple gunshot wounds. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006) (decided under former O.C.G.A. § 24-2-1).

Photograph showing the victim's vagina and bloody underwear was relevant to show that the victim had been raped and to refute the defendant's assertion that her injuries resulted from a kick to the groin. Smith v. State, 291 Ga. App. 545, 662 S.E.2d 323 (2008) (decided under former O.C.G.A. § 24-2-1).

Trial court did not abuse the court's discretion in admitting the autopsy photographs of the victim because the photographs were relevant as the medical examiner testified that the photographs showed the internal injuries that caused the victim's death that were not evident from the pre-incision photographs; the fact that the defendant might not have disputed the cause of death did not diminish the relevance of the photographs; and the trial court considered whether the probative value of the photographs was substantially outweighed by the danger of unfair prejudice. Dailey v. State, 297 Ga. 442, 774 S.E.2d 672 (2015).

Trial court did not abuse the court's discretion by admitting into evidence an autopsy photograph showing the victim's exposed brain because the photograph was relevant as evidence of the severity of the victim's injury, the single photograph was not particularly gory or gruesome, and the court concluded that the trial court did not abuse the court's discretion in deciding that the photograph's probative value was not substantially outweighed by the danger of unfair prejudice. Flowers v. State, 307 Ga. 618, 837 S.E.2d 824 (2020).

Autopsy photo admissible.

- Trial court did not abuse the court's discretion in admitting an autopsy photo after the medical examiner explained that the only way the examiner could get the trajectory probes through the victim's body was in the manner depicted in the photo. Venturino v. State, 306 Ga. 391, 830 S.E.2d 110 (2019).

Photographs posted on social media.

- Trial court did not abuse the court's discretion when the court found that a photograph that a friend took of the three defendants during the trial and posted on social media was relevant to show that the three defendants were members of a gang as the state also introduced other photographs of the three defendants that the same friend posted on social media and that depicted the defendants allegedly throwing gang signs. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018).

Video recordings from officers' body cameras relevant.

- After the defendant murdered the defendant's two infant daughters by drowning the children, the video-recordings of the crime scene taken from the body cameras of two police officers who responded to the defendant's 911 call were relevant and admissible, with the exception of the last four minutes of the second recording, because those portions as a whole were relevant to show the children's manner of death; the video-recordings were not needlessly cumulative of the manner of death as the state was not required to stipulate to the cause of death and the circumstances surrounding the murders; and the video-recordings were probative of matters other than the manner of death, including rebutting the defendant's insanity defense. Morgan v. State, 307 Ga. 889, 838 S.E.2d 878 (2020).

Photograph of coconspirator with another person irrelevant.

- Trial court did not err in excluding a photograph of one of the state's witnesses on the beach with a person defendant claimed committed the murders as irrelevant, O.C.G.A. § 24-4-401, because the photograph established at most that the two were acquainted, which was not in dispute. Jones v. State, 305 Ga. 750, 827 S.E.2d 879 (2019).

Skeletal remains.

- Trial court did not err in admitting the victim's skeletal remains in a murder trial since the remains were used to illustrate portions of the testimony of an expert forensic anthropologist. Quedens v. State, 280 Ga. 355, 629 S.E.2d 197 (2006) (decided under former O.C.G.A. § 24-2-1).

Tape of prior telephone conversation with witness admissible for impeachment.

- In a trial for theft by deception, the trial court erred in ruling inadmissible the tape recording of a telephone conversation between a witness and defendant's father after a determination was made, through questions posed to the witness and defendant's father, that it was authentic, accurate and complete and since it was offered for impeachment by showing discrepancies between the witness's representations about certain facts made during the telephone conversation and the witness's trial testimony regarding those same facts pertaining to the issues of whether defendant intended to deceive clients. Riceman v. State, 166 Ga. App. 825, 305 S.E.2d 595 (1983) (decided under former O.C.G.A. § 24-2-1).

Trial court properly disallowed forensic pathologist (as defense witness) to testify: (1) why neurologists and neurosurgeons consulted with the pathologist; and (2) that many cases of suspected child abuse in which the pathologist had been consulted had been determined to be accidental; as neither response would have tended to show the guilt or innocence of the defendant of the offense of aggravated battery for which defendant was being tried. Cohn v. State, 186 Ga. App. 816, 368 S.E.2d 572 (1988) (decided under former O.C.G.A. § 24-2-1).

Recorded telephone conversations made from jail.

- Defendant's recorded telephone conversations made from jail were relevant and admissible: (1) to show the defendant's consciousness of guilt for the armed robbery as the defendant admonished a witness for divulging the defendant's name to the police; the defendant asked the witness if the witness told the police that the defendant had a gun; and the defendant told the witness that the police pressure should not get to the witness as the witness had not done anything; and (2) to corroborate the witness's testimony that the defendant had told the witness not to give the defendant's name to the police; further, the probative value of the recorded telephone calls was not substantially outweighed by the danger of unfair prejudice. Anderson v. State, 337 Ga. App. 739, 788 S.E.2d 831 (2016).

Admission of defendant's tattoo irrelevant, but harmless.

- Trial court abused the court's discretion in overruling the defendant's relevancy objection to questions about the defendant's tattoos, but the error was harmless as the properly admitted evidence proving the defendant's guilt was overwhelming given that several witnesses and the defendant testified the defendant was alone with the victim when the symptoms started, the defendant admitted to squeezing the baby, and expert testimony established that the symptoms would have been immediately apparent. Smith v. State, 299 Ga. 424, 788 S.E.2d 433 (2016).

Admission of medical records on mental health.

- Trial counsel was not ineffective for failing to present available evidence corroborating the defendant's testimony about the defendant's mental health because trial counsel correctly recognized that under the rule of completeness, the state could have sought to admit portions of the medical records from prison, as well as medical records from other facilities, that were unfavorable to the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257 (2019).

Police dogs.

- Even when it is shown that a dog is of pure blood and of a stock characterized by acuteness of scent and power of discrimination, it must also be established that the dog is possessed of these qualities, and has been trained or tested in their exercise in the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. O'Quinn v. State, 153 Ga. App. 467, 265 S.E.2d 824 (1980) (decided under former Code 1933, § 38-201).

Trial court improperly granted the state's motion to quash the defendant's subpoena for all records and documents pertaining to the drug detection dog and the dog's handler involved in the detection of drugs in the defendant's luggage because the appellate court could not determine from the existing record whether the training materials were relevant to the issue of reliability of the drug dog as certification of the drug dog on the day of the alert did not preclude a challenge to its reliability; other than the blanket assertion that training materials were irrelevant to show reliability, the state offered no other basis for the state's objection to the subpoena; and the trial court had the discretion to modify the subpoena if the subpoena was overly broad. Harris v. State, 341 Ga. App. 831, 802 S.E.2d 708 (2017).

Prior verdict of not guilty by reason of insanity irrelevant in subsequent prosecution.

- Defendant's mental state at defendant's previous trial for burglary and assault to commit rape at which defendant was found not guilty by reason of insanity was irrelevant to any issue in defendant's subsequent trial for another rape and thus was properly excluded. Crapse v. State, 180 Ga. App. 321, 349 S.E.2d 190 (1986) (decided under former O.C.G.A. § 24-2-1).

Prior acquittals irrelevant in perjury trial.

- Prior acquittals in two trials for child molestation had no probative value in a trial for perjury committed at those trials because evidence of the acquittals was neither relevant nor material to any issue in the perjury case. West v. State, 228 Ga. App. 713, 492 S.E.2d 576 (1997) (decided under former O.C.G.A. § 24-2-1).

Pretrial identifications.

- Victim's pretrial identifications of defendant and codefendant, as being the persons riding together in the automobile in which they ultimately were arrested and in which a .25 caliber pistol was found, were relevant within the meaning of former O.C.G.A. § 24-2-1 (see now O.C.G.A. §§ 24-4-401 through24-4-403). If evidence is relevant, no matter how slightly, the evidence generally should be admitted and the weight of the evidence left to the jury. Buckner v. State, 209 Ga. App. 107, 433 S.E.2d 94 (1993) (decided under former O.C.G.A. § 24-2-1).

Trial court did not err in denying a motion in limine to exclude the testimony of a state witness that allegedly placed the defendant's character in issue because the testimony was relevant to establish the defendant's identity and appearance on that date of the charged crime, and was not rendered inadmissible merely because the testimony incidentally placed the defendant's character in issue. Moreover, the defendant's trial counsel conceded that the witness's testimony regarding the description was admissible. Buice v. State, 289 Ga. App. 415, 657 S.E.2d 326 (2008) (decided under former O.C.G.A. § 24-2-1).

Movie about body disposal.

- In a joint trial of two defendants, the trial court did not err in showing the jury portions of a movie which depicted a method of disposing of a murdered victim's body as: (1) such was relevant to show a bent of mind, despite the fact that it could have placed the first defendant's character in issue; and (2) the jury could have made the permissible inference that the first defendant was encouraged by the movie to order the manner of disposing of the victim's body; moreover, because the second defendant failed to request a cautionary instruction to adequately protect from this inference, the second defendant could not complain of the inference on appeal. Oree v. State, 280 Ga. 588, 630 S.E.2d 390 (2006) (decided under former O.C.G.A. § 24-2-1).

Expert testimony on Chinese culture which defendant claimed would have cast light on the defendant's motivations, state of mind, and actions was properly excluded since such evidence would not have aided the jury in the jury's search for the truth. Lee v. State, 262 Ga. 593, 423 S.E.2d 249 (1992) (decided under former O.C.G.A. § 24-2-1).

Stipulation at administrative license suspension hearing relevant.

- Defendant's stipulation at the administrative license suspension hearing that the defendant would plead guilty to driving under the influence of alcohol in exchange for the return of the defendant's driver's license was relevant to, though certainly not dispositive of, the charge that the defendant was driving under the influence of alcohol. Flading v. State, 327 Ga. App. 346, 759 S.E.2d 67 (2014).

Relevance of evidence found.

- See Posey v. State, 46 Ga. App. 290, 167 S.E. 340 (1933) (exhibit of child) (decided under former Code 1933, § 38-201); Miller v. State, 53 Ga. App. 275, 185 S.E. 372 (1936) (burglary) (decided under former Code 1933, § 38-201); Wynes v. State, 182 Ga. 434, 185 S.E. 711 (1936) (experiments) (decided under former Code 1933, § 38-201); Bryant v. State, 197 Ga. 641, 30 S.E.2d 259 (1944) (other person as guilty party) (decided under former Code 1933, § 38-201); Ledbetter v. State, 51 Ga. App. 560, 181 S.E. 120 (1935) (possession of liquor) (decided under former Code 1933, § 38-201); Rogers v. State, 80 Ga. App. 585, 56 S.E.2d 633 (1949) (chain of circumstances) (decided under former Code 1933, § 38-201); Hatcher v. State, 94 Ga. App. 270, 94 S.E.2d 110 (1956) (unlawful possession of whiskey) (decided under former Code 1933, § 38-201); Yawn v. State, 94 Ga. App. 400, 94 S.E.2d 769 (1956) (stolen goods) (decided under former Code 1933, § 38-201); Duffey v. State, 151 Ga. App. 673, 261 S.E.2d 421 (1979) (photographic lineup in armed robbery) (decided under former Code 1933, § 38-201); Gray v. State, 151 Ga. App. 684, 261 S.E.2d 402 (1979) (identification procedure) (decided under former Code 1933, § 38-201); Riden v. State, 151 Ga. App. 654, 261 S.E.2d 409 (1979) (documentary evidence) (decided under former Code 1933, § 38-201); Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980) (statement indicating consciousness of guilt) (decided under former Code 1933, § 38-201); Hudgins v. State, 153 Ga. App. 601, 266 S.E.2d 283 (1980) (escape from confinement) (decided under former Code 1933, § 38-201); Clark v. State, 149 Ga. App. 641, 255 S.E.2d 110 (1979) (deadly weapons) (decided under former Code 1933, § 38-201); Whitacre v. State, 155 Ga. App. 359, 270 S.E.2d 894 (1980) (drug paraphernalia) (decided under former Code 1933, § 38-201); Marshall v. State, 153 Ga. App. 198, 264 S.E.2d 718 (1980) (contents of paper bag) (decided under former Code 1933, § 38-201); Herron v. State, 155 Ga. App. 791, 272 S.E.2d 756 (1980) (child molestation case) (decided under former Code 1933, § 38-201); Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983) (identity and background of murder victim) (decided under former Code 1933, § 38-201); Wortham v. State, 158 Ga. App. 19, 279 S.E.2d 287 (1981) (drug paraphernalia) (decided under former Code 1933, § 38-201); Kelley v. State, 160 Ga. App. 343, 287 S.E.2d 68 (1981) (value of stolen items) (decided under former Code 1933, § 38-201); Harrell v. State, 249 Ga. 48, 288 S.E.2d 192 (1982) (psychiatric testimony) (decided under former O.C.G.A. § 24-2-1); Williams v. State, 250 Ga. 553, 300 S.E.2d 301 (1983), overruled on other grounds by Venturino v. State, 830 S.E.2d 110, 2019 Ga. LEXIS 435 (Ga. 2019) (murder case) (decided under former O.C.G.A. § 24-2-1); Ponder v. Ponder, 251 Ga. 323, 304 S.E.2d 61 (1983) (dispute between parents and family member) (decided under former O.C.G.A. § 24-2-1); Hubbard v. State, 167 Ga. App. 32, 305 S.E.2d 849 (1983) (theft by taking case) (decided under former O.C.G.A. § 24-2-1); Griffin v. State, 243 Ga. App. 282, 531 S.E.2d 175 (2000) (fingerprints) (decided under former O.C.G.A. § 24-2-1).

Probative value of the probation officer's testimony about a phone number that the defendant had given to the officer that linked the defendant to the phone from which numerous calls were placed to one of the murder victims on the day of the murders was not substantially outweighed by its prejudicial effect because the testimony of the probation officer was clearly relevant; it had substantial probative value; although other evidence in the record tended to establish the connection between the defendant and one of the murder victims, none of it established a connection as directly or strongly as the testimony of the probation officer; and other evidence informed the jury that the defendant was on probation. Huff v. State, 299 Ga. 801, 792 S.E.2d 368 (2016).

Trial court did not abuse the court's discretion in allowing the admission of evidence of the defendant's friend's gang affiliation given the state's purpose, to show a connection between the robbery and murder and the foreseeable consequence of the defendant's participation in the robbery of the victim. Davis v. State, 301 Ga. 397, 801 S.E.2d 897 (2017).

Evidence that the defendant physically abused the mother was admissible at a trial for rape and aggravated child molestation as to the defendant's stepdaughter because the evidence was probative of whether the defendant's behavior created a threatening atmosphere in the home and tended to explain the stepdaughter's reluctance to disclose the abuse. Thomas v. State, Ga. App. , 841 S.E.2d 458 (2020).

Signs and fliers relevant to show defendant's bent of mind.

- Images and language incorporated into the sign and fliers that the defendant displayed or distributed concerning the defendant's child's mother, the victim, at or near the victim's workplace demonstrated the state of the relationship between the defendant and the victim, and were "highly relevant" to show the defendant's abusive bent of mind toward the victim. Hudson v. State, 321 Ga. App. 702, 742 S.E.2d 516 (2013).

Testimony of medical examiner relevant.

- Trial court did not err in permitting a medical examiner to testify that inasmuch as the victim's body was discovered in a wooded area approximately 20 miles from the victim's house, the victim's death was "most likely" a homicide; defendant did not object to the testimony and the testimony was not improper under the circumstances of the case. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-1).

Hypnotic session was relevant evidence.

- Witness was properly permitted to testify even though the recording of the witness's hypnotic session was unavailable and the witness's pre-hypnotic oral statement was not reduced contemporaneously to a writing as the trial court went to great lengths to ensure that the witness's testimony was not tainted or corrupted by hypnotic suggestion and all of the testimony was cumulative of other evidence admitted. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-1).

Officer's testimony relevant.

- Trial court properly admitted a police officer's testimony that the officer learned from independent sources that the officer was searching for a suspect named "Little B" as several witnesses referred to defendant by the defendant's nickname and it was necessary to establish that "Little B" and defendant were the same person. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005) (decided under former O.C.G.A. § 24-2-1).

Although the state prematurely bolstered a child victim's testimony, the parties knew that the victim's credibility would be immediately undermined; evidence that defendant told the victim that a relative had been imprisoned for improper "touching" and that defendant masturbated with the victim's underwear were admissible as relevant. Robinson v. State, 275 Ga. App. 537, 621 S.E.2d 770 (2005) (decided under former O.C.G.A. § 24-2-1).

Defendant did not receive ineffective assistance of counsel for the failure of counsel to object to a passing reference to defendant's incarceration as the reason for defendant not being arrested sooner and to the initial arrest as being part of a "roundup"; all of the circumstances connected with a defendant's arrest were admissible, even those that established the commission of another criminal offense, if they were relevant and the testimony was relevant to counter any accusation that defendant's arrest was delayed due to lack of identification. Butler v. State, 277 Ga. App. 57, 625 S.E.2d 458 (2005) (decided under former O.C.G.A. § 24-2-1).

Trial court did not err by permitting a law-enforcement officer to testify about the pernicious effects of heroin and addiction because the testimony put in context what heroin was and the testimony was relevant to explain why someone might engage in an enterprise to distribute heroin and possess a trafficking amount, and to explain why heroin was a Schedule I controlled substance. Jones v. State, 339 Ga. App. 95, 791 S.E.2d 625 (2016).

Testimony of nurse treating child relevant.

- In a defendant's trial for cruelty to a child, a nurse's testimony as to the nurse's decision to report an incident to explain the hospital's course of conduct regarding a child services agency was relevant to the child's care and future well-being; the trial court had wide discretion in determining relevancy and materiality and, where relevancy was doubtful, the evidence was properly admitted and the weight of the evidence left for the jury's determination. Revells v. State, 283 Ga. App. 59, 640 S.E.2d 587 (2006) (decided under former O.C.G.A. § 24-2-1).

Excluded testimony relevant to explain impetus for defendant's actions.

- Trial court erred in excluding testimony from a witness that, during a lengthy conversation with the defendant after the defendant killed the defendant's wife, the defendant told the witness that the wife had been unfaithful, that the defendant did not mean for the wife's death to happen, and the defendant loved the wife, because such testimony was relevant to explain the impetus for the defendant's actions. Allaben v. State, 299 Ga. 253, 787 S.E.2d 711 (2016).

Written note relevant.

- Because a note found in the defendant's truck contained information that could have linked the note's author to the armed robbery charged, such was properly admitted as relevant; any issue as to whether the note was written by the defendant or by someone else was an issue affecting the weight of the evidence, not the admissibility of the evidence, and therefore was for the jury to decide. Clark v. State, 283 Ga. App. 884, 642 S.E.2d 900 (2007) (decided under former O.C.G.A. § 24-2-1).

Possession of a handgun was relevant.

- Evidence that the defendant was in possession of a handgun "around the time of the shooting" was relevant and material to a charge of possession of a weapon by a convicted felon. Jones v. State, 282 Ga. 306, 647 S.E.2d 576 (2007) (decided under former O.C.G.A. § 24-2-1).

In an assault trial, after the defendant claimed that the victim had raped the defendant's sibling, evidence that one of the defendant's parents was indicted for extortion and other offenses in connection with the rape charge and that the parent pled guilty to some charges was properly admitted; the indictment and plea, as well as the fact that the indictment led to the dismissal of the rape charges, were relevant to the issue of the victim's credibility. Gonzales v. State, 286 Ga. App. 821, 650 S.E.2d 401 (2007), cert. denied, No. S07C1765, 2008 Ga. LEXIS 70 (Ga. 2008) (decided under former O.C.G.A. § 24-2-1).

Because the trial court erroneously excluded evidence relevant to the defendant's claim that there was provocation sufficient to excuse the use of the fighting words the defendant uttered and made the basis of a disorderly conduct charge, the defendant's conviction was reversed; moreover, in determining whether or not there was sufficient provocation for the defendant's use of the fighting words uttered, the jury was entitled to consider all the facts and circumstances tending to prove provocation, not just facts and circumstances contemporaneous with the use of the fighting words. Talmadge v. State, 287 Ga. App. 332, 651 S.E.2d 469 (2007) (decided under former O.C.G.A. § 24-2-1).

Trial court did not abuse the court's discretion in admitting the revolver found in the defendant's vehicle into evidence as it was relevant to whether the defendant had threatened the judge who presided over the defendant's divorce and the judge's family, and to whether the defendant was in the process of executing the steps outlined in a letter to the judge, which included a plan to kill the judge's family, motivated by revenge. Satterfield v. State, 339 Ga. App. 15, 792 S.E.2d 451 (2016).

Testimony about drugs was relevant.

- In a child molestation case, the victim's testimony that the defendant gave the victim drugs and that this always led up to sexual intercourse was relevant, as the testimony had some bearing on the issues being tried. Boynton v. State, 287 Ga. App. 778, 653 S.E.2d 110 (2007) (decided under former O.C.G.A. § 24-2-1).

Evidence that a drug defendant went to a hotel room to have sex was relevant and admissible to support the state's theory that the defendant was at the hotel room to exchange sex for drugs. Gassett v. State, 289 Ga. App. 792, 658 S.E.2d 366 (2008) (decided under former O.C.G.A. § 24-2-1).

Testimony about blood test relevant.

- Trial court did not abuse the court's discretion in allowing an arresting officer to testify that the defendant had requested and received an independent blood test in accordance with the defendant's rights under implied consent laws as the defendant contested the results of the state's blood test, arguing that the results were skewed and unreliable due to the unknown storage conditions of the defendant's blood sample while in route to a lab. Consequently, the fact that the defendant requested and received an independent test which the defendant failed to produce at trial was relevant to a material issue in the case. Schlanger v. State, 290 Ga. App. 407, 659 S.E.2d 823 (2008) (decided under former O.C.G.A. § 24-2-1).

Admission of weapon relevant.

- There was no merit to the defendant's claim that it was error to admit a knife into evidence. The fact that a knife was found on the defendant's person at the time of the defendant's arrest was clearly relevant to the issue of whether the defendant, who was convicted of aggravated assault, had assaulted the victim with a deadly weapon. Brown v. State, 293 Ga. App. 224, 666 S.E.2d 600 (2008) (decided under former O.C.G.A. § 24-2-1).

Because the crimes committed by defendant following the shooting of the victim were relevant to show defendant's attempt to obtain money and vehicles to flee following the shooting, the trial court did not err in admitting the evidence in question. Hardnett v. State, 285 Ga. 470, 678 S.E.2d 323 (2009) (decided under former O.C.G.A. § 24-2-1).

Discovery of relevant evidence properly allowed.

- In a prosecution for DUI, the trial court did not err in denying the defendant's motion to suppress the blood test evidence, as the trial court properly allowed the discovery of notes, memoranda, graphs, or computer printouts pertaining to the blood sample taken, as well as all chain of custody documentation, because they were the only items deemed relevant to the prosecution; suppression of the blood test results was not required as the defendant waived error on appeal as to the absence of one of the two lab testers. Cottrell v. State, 287 Ga. App. 89, 651 S.E.2d 444 (2007), cert. denied, No. S07C1894, 2007 Ga. LEXIS 816 (Ga. 2007) (decided under former O.C.G.A. § 24-2-1).

In a theft by taking case, the trial court erred in denying the defendant's motion to compel a response to the defendant's subpoena duces tecum as the defendant met the burden of showing the relevance of the evidence sought in the subpoena because the defendant demonstrated that the defendant sought the documents not just for use in cross-examining the pharmacy owner, but also to prove the volume of cash that the pharmacy used to pay its cash-based employees and that the defendant took cash out of the register at the employer's direction to pay those employees and other expenses. Gregg v. State, 331 Ga. App. 833, 771 S.E.2d 486 (2015).

Evidence cumulative of defendant's testimony.

- Trial court did not err by limiting the testimony of a witness because the defendant did not establish that the witness's testimony was relevant to the aggravated stalking offenses as charged; the excluded evidence would have been cumulative of the defendant's trial testimony that the defendant was not personally following or watching the victim. Brooks v. State, 313 Ga. App. 789, 723 S.E.2d 29 (2012), cert. denied, No. S12C0974, 2012 Ga. LEXIS 1035 (Ga. 2012) (decided under former O.C.G.A. § 24-2-1).

Evidence of death of defendant's friend not relevant.

- In a rape case, the trial court properly excluded evidence regarding the death of the defendant's friend to explain the defendant's alcoholism because it shed no light on the July 14, 2008 assault or the fact that the defendant had an alcohol problem and was drinking that night.

Molestation allegations not relevant.

- Trial court did not err by excluding the proffered testimony of a witness concerning allegations of abuse by the victim's son against the daughter of the defendant and the victim because the trial court was authorized to conclude that the substantive molestation allegations were not relevant to the aggravated stalking charges against the defendant; the defendant was otherwise allowed to challenge the victim's motives and truthfulness without interjecting immaterial matter at the trial. Brooks v. State, 313 Ga. App. 789, 723 S.E.2d 29 (2012), cert. denied, No. S12C0974, 2012 Ga. LEXIS 1035 (Ga. 2012) (decided under former O.C.G.A. § 24-2-1).

Evidence of plea not relevant or admissible.

- Because the reasoning behind the robbery by intimidation plea between the defendant and the DeKalb County prosecutor did not appear on the face of the document itself, and the defendant would not have been able to testify as to the prosecutor's reasons for accepting the defendant's plea, the evidence regarding the defendant's plea would not have made the defendant's desired inference that the defendant did not use a gun during the Gwinnett County robbery any more probable than it would have been without the evidence; thus, the trial court did not err by refusing to allow the defendant to present evidence of the plea. Johnson v. State, 331 Ga. App. 134, 770 S.E.2d 236 (2015), cert. denied, 2015 Ga. LEXIS 377 (Ga. 2015).

Evidence of bar's reputation for violent incidents inadmissible.

- When the defendant was convicted of, inter alia, malice murder and attempted murder, the trial court did not err in excluding the proffered evidence of 10 incidents at a bar because the evidence was not relevant to show that the dangerous, violent environment at the bar influenced the defendant's state of mind and made the defendant's extreme reaction to perceived threats from the victims reasonable as the defendant did not contend that the defendant knew about any of the proffered occurrences at the time of the shooting; none of the incidents showed a propensity for violence in either of the victims; and the evidence did not tend to make it more likely that the defendant reasonably believed that deadly force was necessary. Ramirez v. State, 303 Ga. 232, 811 S.E.2d 416 (2018), cert. denied, 139 S. Ct. 110, 2018 U.S. LEXIS 5541, 202 L. Ed. 2d 69 (U.S. 2018).

Requirements for Appeal

Error waived unless objected to at trial.

- Defendants are not entitled to appellate review of the issue of relevancy when the defendants fail to raise the issue at trial. Fain v. State, 165 Ga. App. 188, 300 S.E.2d 197 (1983) (decided under former O.C.G.A. § 24-2-1).

Specific objection showing harmful error must be offered at the time irrelevant and immaterial evidence is presented, and it is too late to set forth for the first time in a ground of a motion for new trial, even though valid. McDaniel v. State, 197 Ga. 757, 30 S.E.2d 612 (1944) (decided under former Code 1933, § 38-201).

In order to raise on appeal contentions concerning admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver; all evidence is admitted as a matter of course unless a valid ground of objection is interposed. Sutphin v. McDaniel, 157 Ga. App. 732, 278 S.E.2d 490 (1981) (decided under former Code 1933, § 38-201).

Objection to evidence on grounds of prejudice and irrelevancy does not constitute a proper objection and does not therefore present the Court of Appeals with an issue for review. Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 278 S.E.2d 669, cert. dismissed, 248 Ga. 429, 285 S.E.2d 186 (1981) (decided under former Code 1933, § 38-201).

Erroneous admission of evidence not grounds for reversal.

- Judgment will not be reversed because of the erroneous admission of evidence since at a subsequent stage of the trial, the evidence became relevant and admissible upon an issue later injected into the case. Fuller v. State, 197 Ga. 714, 30 S.E.2d 608 (1944) (decided under former Code 1933, § 38-201).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, §§ 301, 537.

9A Am. Jur. Pleading and Practice Forms, Evidence, § 11.

Excluding Illegally Obtained Evidence, 5 Am. Jur. Trials 331.

The Daubert Challenge to the Admissibility of Scientific Evidence, 60 Am. Jur. Trials 1.

C.J.S.

- 31A C.J.S., Evidence, § 245 et seq. 32 C.J.S., Evidence, § 808 et seq.

ALR.

- Evidence of intemperate habits on question of damages from death or personal injuries, 9 A.L.R. 1405.

Admissibility of evidence as to insurance on issue of negligence in operation or care of automobile, 28 A.L.R. 516.

Competency or qualification of witness who had not seen or examined property before fire to testify as to damage by fire, 33 A.L.R. 297.

Evidence of experience with intruders on other occasions as admissible on issue of justification in defending premises, 45 A.L.R. 1418.

Admissibility of evidence, and propriety and effect of questions, statements, comments, etc., tending to show that defendant in a personal-injury or death action carries liability insurance, 56 A.L.R. 141; 74 A.L.R. 849; 95 A.L.R. 388; 105 A.L.R. 1319; 4 A.L.R.2d 761.

Evidence as to what was seen by use of mirror, 57 A.L.R. 409.

Evidence as to threats made to keep witness away from criminal trial, 62 A.L.R. 136.

Admissibility of expressions of pain or suffering by person injured, 64 A.L.R. 557.

Admissibility on question of justification for dismissal or discharge of officer or employee for incompetency, of evidence as to his experience in other similar office or employment, 65 A.L.R. 1096.

Admissibility on question as to quality, condition, or capacity of articles, machines, or apparatus, of evidence in regard to similar things manufactured or sold by the same person, 66 A.L.R. 81.

Admissibility of secondary evidence of incriminating document in possession of defendant, 67 A.L.R. 77.

Admissibility of declarations by one involved in an accident in relation to his employment by or agency for other person, 67 A.L.R. 170; 150 A.L.R. 623.

Relevancy of race, color, nationality, sex, age, etc., of person whose conduct is in question, 71 A.L.R. 1301; 145 A.L.R. 1362.

Admissibility of test or experiment after accident as bearing on condition of automobile at time of accident, 72 A.L.R. 863.

Admissibility in behalf of defendant in action for libel or slander of similar charges made by other persons against plaintiff, 74 A.L.R. 732.

Physical condition of place before or after event as evidence of condition at time of event, 80 A.L.R. 446.

Admissibility of evidence of other accidents on issue of negligence in respect of maintenance of electric wires, rails, etc., 81 A.L.R. 685.

Admissibility of statements or declarations of plaintiff's spouse in an action for alienation of affections for the purpose of showing his or her mental state, 82 A.L.R. 825.

Admissibility and weight on issue of mental capacity or undue influence in respect of will or conveyance, of instruments previously executed by the person in question, 82 A.L.R. 963.

Right of expert to give an opinion based on testimony of other witnesses not incorporated in a hypothetical question, 82 A.L.R. 1460.

Admissibility in prosecution for homicide of declarations indicating suicidal disposition on part of deceased, 83 A.L.R. 434.

Admissibility, and effect of admission, in condemnation proceedings of plans and specifications as regards the work to be done on, or the particular use to be made of, the land in question, 89 A.L.R. 879.

Admissibility in action for slander or libel of evidence of aversion or contempt manifested as consequence of libelous or slanderous publication, to show its hurtful tendency, 105 A.L.R. 944.

Admissibility and weight on question of materiality of misrepresentation, of testimony of officers or employees of insurer to effect that application would not have been accepted but for the misrepresentation, or that there was a rule or policy to reject risks of the kind that would have been shown but for the misrepresentation, 115 A.L.R. 100.

Liability as for malpractice as affected by failure to take or advise the taking of an X-ray picture after operation, or to resort to other means of determining advisability of a supplementary operation or special treatment, 115 A.L.R. 298.

Necessity of expert evidence to warrant submission to jury of issue as to permanency of injury or as to future pain and suffering, or to sustain award of damages on that basis, 115 A.L.R. 1149.

Admissibility of inculpatory statements made in presence of accused and not denied or contradicted by him, 115 A.L.R. 1510.

Admissibility in criminal prosecution of evidence of motive of one other than defendant to commit the crime, 121 A.L.R. 1362.

Evidence which indirectly or incidentally suggests poverty or wealth of party not in itself proper matter of proof, 122 A.L.R. 1408.

Evidence of acquisition or possession of money, source of which is not traced, as admissible against defendant in criminal case, 123 A.L.R. 119; 91 A.L.R.2d 1046.

Discretion of trial court in criminal case as to permitting or denying view of premises where crime was committed, 124 A.L.R. 841.

Admissibility on issue of negligence or contributory negligence of statements warning one of danger, 125 A.L.R. 645.

Right, in civil action for malicious prosecution, to prove or rely on facts not known to defendant when he began prosecution or action which show or tend to show guilt or liability of plaintiff, 125 A.L.R. 897.

Admissibility against defendant in criminal case of evidence, otherwise competent, as to other offense as affected by fact that a charge for such offense is pending against him, 125 A.L.R. 1036.

Admissibility, in action against manufacturer, packer, or bottler for personal injury due to defective or injurious condition of article, of evidence that like products were free from, or were subject to, defective or injurious conditions, 127 A.L.R. 1194.

Admissibility in action for death of evidence as to pecuniary condition of deceased, 128 A.L.R. 1084.

Admissibility, to show bias or interest of witness, of evidence that he or his employer had compensated the party for whom he testified, in circumstances creating right to subrogation, 128 A.L.R. 1110.

Expert and opinion evidence as regards fire, 131 A.L.R. 1113.

Admissibility, in support of general credibility of an accomplice-witness who has not been impeached, of evidence from nonaccomplice witness not otherwise relevant or of probative value as against defendant, 138 A.L.R. 1266.

Admissibility, in prosecution for burglary, of evidence that defendant, after alleged burglary, was in possession of burglarious tools and implements, 143 A.L.R. 1199.

Conduct of jury in nature of demonstration, test, or experiment during authorized view, 150 A.L.R. 958.

Motive in bringing action or choosing the forum or venue as proper matter for cross-examination, 157 A.L.R. 604.

Admissibility of photograph of corpse in prosecution for homicide or civil action for causing death, 159 A.L.R. 1413; 73 A.L.R.2d 769.

Admissibility of evidence of repairs, change of conditions, or precautions taken after accident, 170 A.L.R. 7; 64 A.L.R.2d 1151.

Admissibility of declarations by testator on issue of revocation of will, 172 A.L.R. 354.

Application of statute excluding testimony of one person because of death of another when invoked by or against one who sues or defends in two capacities, only one of which is within the statute, 172 A.L.R. 714.

Admissibility against beneficiary of life or accident insurance policy of statements of third persons included in or with proof of death, 1 A.L.R.2d 365.

Admissibility of evidence, and propriety and effect of questions, statements, comments, etc., tending to show that defendant in a personal-injury or death action carries liability insurance, 4 A.L.R.2d 761.

Admissibility of evidence as to financial condition of debtor on issue as to payment of debt, 9 A.L.R.2d 205.

Proof of prospective earning capacity of student or trainee, or of its loss, in action for personal injury or death, 15 A.L.R.2d 418.

Admissibility of declaration of persons other than members of family as to pedigree, 15 A.L.R.2d 1412.

Admissibility of evidence that defendant in negligence action has paid third persons on claims arising from the same transaction or incident as plaintiff's claim, 20 A.L.R.2d 304.

Admissibility of evidence as to tire tracks or marks on or near highway, 23 A.L.R.2d 112.

Physiological or psychological truth and deception tests, 23 A.L.R.2d 1306.

Admissibility in homicide prosecution for purpose of showing motive of evidence as to insurance policies on life of deceased naming accused as beneficiary, 28 A.L.R.2d 857.

Reference by counsel for prosecution in opening statement to matters which he does not later attempt to prove as ground for new trial, reversal, or modification, 28 A.L.R.2d 972.

Mode of establishing that information obtained by illegal wire tapping has or has not led to evidence introduced by prosecution, 28 A.L.R.2d 1055.

Lack of proper automobile registration or operator's license as evidence of operator's negligence, 29 A.L.R.2d 963.

Admissibility of evidence of absence of other accidents or injuries at place where injury or damage occurred, 31 A.L.R.2d 190.

Footprints as evidence, 35 A.L.R.2d 856.

Admissibility of evidence of absence of other accidents or injuries from a customary practice or method asserted to be negligent, 42 A.L.R.2d 1055.

Admissibility, in railroad crossing accident case, of evidence of other functional failures of railroad crossing devices and appliances of the same kind at other times, 46 A.L.R.2d 935.

Blood grouping tests, 46 A.L.R.2d 1000.

Prejudicial effect of prosecuting attorney's misconduct in physically exhibiting to jury objects or items not introduced as evidence, 46 A.L.R.2d 1423.

Admissibility in evidence of rules of defendant in action for negligence, 50 A.L.R.2d 16.

Admissibility in evidence of colored photographs, 53 A.L.R.2d 1102.

Admissibility of evidence as to experiments or tests in civil action for death, injury, or property damage against electric power company or the like, 54 A.L.R.2d 922.

Admissibility and permissible use, in malicious prosecution action, of documentary evidence showing that prior criminal proceedings against instant plaintiff were terminated in his favor, 57 A.L.R.2d 1086.

Admissibility in evidence of aerial photographs, 57 A.L.R.2d 1351.

Propriety, in trial of civil action, of use of skeleton or model of human body or part, 58 A.L.R.2d 689.

Prejudicial effect of admission, in personal injury action, of evidence as to financial or domestic circumstances of plaintiff, 59 A.L.R.2d 371.

Admissibility and propriety, in rape prosecution, of evidence that accused is married, has children, and the like, 62 A.L.R.2d 1067.

Admissibility, in nonstatutory rape prosecution, of evidence of pregnancy of prosecutrix, 62 A.L.R.2d 1083.

Admissibility of evidence of repairs, change of conditions, or precautions taken after accident, 64 A.L.R.2d 1151.

Admissibility of evidence of repairs, change of conditions, or precautions taken after accident, 64 A.L.R.2d 1296; 15 A.L.R.5th 119.

Admissibility of evidence of value or extent of decedent's estate in action against estate for reasonable value of services furnished decedent, 65 A.L.R.2d 945.

Propriety of permitting plaintiff in personal injury action to exhibit his person to jury, 66 A.L.R.2d 1334.

Admissibility, in civil case involving usury issue, of evidence of other assertedly usurious transactions, 67 A.L.R.2d 232.

Admissibility and propriety, in homicide prosecution, of evidence as to deceased's spouse and children, 67 A.L.R.2d 731.

Admissibility, in homicide prosecution, of deceased's clothing worn at time of killing, 68 A.L.R.2d 903.

Admissibility, on issue of defendant's negligence in respect of condition of place where plaintiff was injured, of evidence of prior accidents or injuries at same place, 70 A.L.R.2d 167; 21 A.L.R.4th 472.

Admissibility of photograph of corpse in prosecution for homicide or civil action for causing death, 73 A.L.R.2d 769.

Counsel's right in arguing civil case to read medical or other learned treatises to the jury, 72 A.L.R.2d 931.

Admissibility, in wrongful death action, of photograph of decedent made in his lifetime, 74 A.L.R.2d 928.

Admissibility of experimental evidence to determine chemical or physical qualities or character of material or substance, 76 A.L.R.2d 354.

Admissibility of experimental evidence as to explosion, 76 A.L.R.2d 402.

Admissibility of experimental evidence to show visibility or line of vision, 78 A.L.R.2d 152.

Admissibility of experimental evidence, skidding tests, or the like, relating to speed or control of motor vehicle, 78 A.L.R.2d 218.

Admissibility, in wrongful death action brought for benefit of minor children, of evidence of decedent's desertion, nonsupport, abandonment, or the like, of said children, 79 A.L.R.2d 819.

Admission of liability as affecting admissibility of evidence as to the circumstances of accident on issue of damages in a tort action for personal injury, wrongful death, or property damage, 80 A.L.R.2d 1224.

Counsel's use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270.

Admissibility, as against objection of remoteness, of evidence as to past earnings, upon issue as to amount of damages in an action for personal injury or death, 81 A.L.R.2d 733.

Propriety, in trial of criminal case, of use of skeleton or model of human body or part, 83 A.L.R.2d 1097.

Admissibility in evidence of braces, crutches, or other prosthetic or orthopedic devices used by injured party, 83 A.L.R.2d 1271.

Propriety of permitting view by jury in civil personal injury or death action as affected by claimed change of conditions since accident or incident, 85 A.L.R.2d 512.

Propriety of reopening criminal case in order to present omitted or overlooked evidence, after submission to jury but before return of verdict, 87 A.L.R.2d 849.

Admissibility, in prosecution for assault or similar offense involving physical violence, of extent or effect of victim's injuries, 87 A.L.R.2d 926.

Admissibility of evidence of accused's good reputation as affected by remoteness of time to which it relates, 87 A.L.R.2d 968.

Suspension or revocation of driver's license for refusal to take sobriety test, 88 A.L.R.2d 1064.

Ruling on offer of proof as error, 89 A.L.R.2d 279.

Evidence of acquisition or possession of money, source of which is not traced, as admissible against defendant in criminal case, 91 A.L.R.2d 1046.

Admissibility in evidence of sample or samples of article or substance of which the quality, condition, or the like is involved in litigation, 95 A.L.R.2d 681.

Admissibility, in wrongful death action for pecuniary loss suffered by next of kin, etc., of evidence as to decedent's personal qualities with respect to sobriety or morality, 99 A.L.R.2d 972.

Financial worth of one or more of several joint defendants as proper matter for consideration in fixing punitive damages, 9 A.L.R.3d 692.

Admissibility, in prosecution for obtaining money or property by fraud or false pretenses, of evidence of subsequent payments made by accused to victim, 10 A.L.R.3d 572.

Workmen's compensation: use of medical books or treatises as independent evidence, 17 A.L.R.3d 993.

Eminent domain: admissibility of photographs or models of property condemned, 23 A.L.R.3d 825.

Admissibility of evidence of proposed or possible subdivision or platting of condemned land in issue of value in eminent domain proceedings, 26 A.L.R.3d 780.

Race or color of child as admissible in evidence on issue of legitimacy or paternity, or as basis of rebuttal or exception to presumption of legitimacy, 32 A.L.R.3d 1303.

Admissibility of evidence of family circumstances of parties in personal injury actions, 37 A.L.R.3d 1082.

Products liability: admissibility of evidence of other accidents to prove hazardous nature of product, 42 A.L.R.3d 780.

Admissibility of evidence that injured plaintiff received benefits from a collateral source, on issue of malingering or motivation to extend period of disability, 47 A.L.R.3d 234.

Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8.

Admissibility of lie detector test taken upon stipulation that the result will be admissible in evidence, 53 A.L.R.3d 1005.

Admissibility, in disputed paternity proceedings, of evidence to rebut mother's claim of prior chastity, 59 A.L.R.3d 659.

Admissibility of evidence of subsequent repairs or other remedial measures in products liability cases, 74 A.L.R.3d 1001; 38 A.L.R.4th 583.

Admissibility in criminal case, on issue of defendant's guilt, of evidence that third person has attempted to influence a witness not to testify or to testify falsely, 79 A.L.R.3d 1156.

Municipal corporation's safety rules or regulations as admissible in evidence in action by private party against municipal corporation or its officers or employees for negligent operation of vehicle, 82 A.L.R.3d 1285.

Products liability: admissibility, against manufacturer, of product recall letter, 84 A.L.R.3d 1220.

Accused's right to discovery or inspection of records of prior complaints against, or similar personnel records of, peace officer involved in the case, 86 A.L.R.3d 1170.

Propriety and prejudicial effect of informing jury that accused has taken polygraph test, where results of test would be inadmissible in evidence, 88 A.L.R.3d 227.

Admissibility of evidence of, or propriety of comment as to, plaintiff spouse's remarriage, or possibility thereof, in action for damages for death of other spouse, 88 A.L.R.3d 926.

Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers' compensation cases, 89 A.L.R.3d 783.

Admissibility of hypnotic evidence at criminal trial, 92 A.L.R.3d 442.

Admissibility of evidence of subsequent criminal offenses as affected by proximity as to time and place, 92 A.L.R.3d 545.

Admissibility of photographs of stolen property, 94 A.L.R.3d 357.

Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix, 2 A.L.R.4th 330.

Admissibility, weight, and sufficiency of blood-grouping tests in criminal cases, 2 A.L.R.4th 500.

Admissibility of evidence of accused's drug addiction or use to show motive for theft of property other than drugs, 2 A.L.R.4th 1298.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374.

Prosecutor's reference in opening statement to matters not provable or which he does not attempt to prove as ground for relief, 16 A.L.R.4th 810.

Modern status of rules as to admissibility of evidence of prior accidents or injuries at same place, 21 A.L.R.4th 472.

Modern status of rule regarding necessity for corroboration of victim's testimony in prosecution of sexual offense, 31 A.L.R.4th 120.

Emotional manifestations by victim or family of victim during criminal trial as ground for reversal, new trial, or mistrial, 31 A.L.R.4th 229.

Admissibility of visual recording of event or matter giving rise to litigation or prosecution, 41 A.L.R.4th 877.

Admissibility of bare footprint evidence, 45 A.L.R.4th 1178.

Products liability: admissibility of defendant's evidence of industry custom or practice in strict liability action, 47 A.L.R.4th 621.

Admissibility of voice stress evaluation test results or of statements made during test, 47 A.L.R.4th 1202.

Products liability: admissibility of evidence of absence of other accidents, 51 A.L.R.4th 1186.

Admissibility, in criminal cases, of evidence of electrophoresis of dried evidentiary bloodstains, 66 A.L.R.4th 588.

Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workers' compensation benefits, 69 A.L.R.4th 131.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons, 71 A.L.R.4th 469.

Admissibility of evidence of absence of other accidents or injuries at place where injury or damage occurred, 10 A.L.R.5th 371.

Admissibility of evidence of polygraph test results, or offer or refusal to take test, in action for malicious prosecution, 10 A.L.R.5th 663.

Admissibility of evidence in homicide case that victim was threatened by other than defendant, 11 A.L.R.5th 831.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Admissibility of evidence of repairs, change of conditions, or precautions taken after accident - modern state cases, 15 A.L.R.5th 119.

Sufficiency of evidence that witness in criminal case was hypnotized, for purposes of determining admissibility of testimony given under hypnosis or of hypnotically enhanced testimony, 16 A.L.R.5th 841.

Admissibility in evidence of composite picture or sketch produced by police to identify offender, 23 A.L.R.5th 672.

Admissibility of government factfinding in products liability actions, 29 A.L.R.5th 534.

Admissibility of evidence relating to accused's attempt to commit suicide, 73 A.L.R.5th 615.

Evidence of trailing by dogs in criminal cases, 81 A.L.R.5th 563.

Admissibility of results of presumptive tests indicating presence of blood on object, 82 A.L.R.5th 67.

Admissibility of computer-generated animation, 111 A.L.R.5th 529.

Admissibility and use of evidence of nonuse of bicycle helmets, 2 A.L.R.6th 429.

Admissibility in state criminal case of results of polygraph (lie detector) test Post Daubert cases, 10 A.L.R.6th 463.

Admissibility of evidence of prior accidents or injuries at same place, 15 A.L.R.6th 1.

Admissibility and effect of evidence or comment on party's military service or lack thereof, 24 A.L.R.6th 747.

Admissibility, after enactment of Rule 411, Federal Rules of Evidence, of evidence of liability insurance in negligence actions, 40 A.L.R. Fed. 541.

Admissibility of evidence of medical defendant's apologetic statements or the like as evidence of negligence, 97 A.L.R.6th 519.

Construction and application of standard for reviewing challenges to sufficiency of evidence supporting conviction - Supreme Court cases, 76 A.L.R. Fed. 2d 295.

Use of Tweets as Evidence in Civil and Criminal Trials, 25 A.L.R. Fed. 3d 5 (2017).

24-4-402. Relevant evidence generally admissible; irrelevant evidence not admissible.

All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.

(Code 1981, §24-4-402, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- General admissibility of relevant evidence, Fed. R. Evid. 402.

Editor's notes.

- In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Sections 24-4-401 and 24-4-403, which may also be applicable to this Code section.

Law reviews.

- For annual survey on evidence law, see 70 Mercer L. Rev. 97 (2018).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 5744, former Code 1933, § 38-201, and former O.C.G.A. § 24-2-1 are included in the annotations for this Code section.

Irrelevant evidence is inadmissible.

- Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible. Horne v. State, 125 Ga. App. 40, 186 S.E.2d 542 (1971) (decided under former Code 1933, § 38-201).

Most acceptable test for relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence. Southern Ry. v. Lawson, 256 Ga. 798, 353 S.E.2d 491 (1987) (decided under former O.C.G.A. § 24-2-1).

Evidence of defendants' financial worth.

- In a premises liability suit, the trial court erred by excluding evidence of the defendants' security expenditures by failing to determine whether the financial worth of the defendants was relevant to the issue since the plaintiffs contended that such evidence would show that the defendants' increased security expenditures constituted only a small percentage of the defendants' security budget. Cham v. ECI Mgmt. Corp., 353 Ga. App. 162, 836 S.E.2d 555 (2019).

Even when irrelevant evidence is admitted over timely objection, it affords no cause for a new trial, unless the nature of the evidence is such as reasonably to prejudice the rights of the objecting party. Continental Trust Co. v. Bank of Harrison, 36 Ga. App. 149, 136 S.E. 319 (1926) (decided under former Civil Code 1910, § 5744).

It is not reversible error to admit evidence that is merely irrelevant and immaterial. Mickle v. Moore, 188 Ga. 444, 4 S.E.2d 217 (1939) (decided under former Code 1933, § 38-201); Henderson v. State, 153 Ga. App. 801, 266 S.E.2d 522 (1980);(decided under former Code 1933, § 38-201).

Evidence of silence or failure to report crime evaluated on case by case basis.

- Judicially created rule excluding all comment upon a defendant's silence or failure to come forward to report a crime as more prejudicial than probative, Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991), was abrogated by Georgia's new Evidence Code; now such silence or failure to come forward must be evaluated on a case-by-case basis under O.C.G.A. § 24-4-403. State v. Orr, Ga. , S.E.2d (May 6, 2019).

Evidence of gang activity relevant.

- Evidence that the defendant was with two other gang members at the scene of a shooting was relevant to the material issue of the defendant's association with a criminal street gang; thus, the trial court did not abuse the court's discretion in admitting that evidence. Lang v. State, 344 Ga. App. 623, 812 S.E.2d 16 (2018).

When the defendant was convicted of possession of a firearm by a convicted felon and participation in criminal gang activity, the trial court did not err in admitting evidence that a police investigator, who was qualified as a gang expert, had seized a "book of knowledge" from the house of another gang member as the evidence was relevant to a material issue in the case because a conviction required that there be some nexus between the enumerated act and an intent to further street gang activity; and, based on the book and other information, gang members were required to possess firearms. Lang v. State, 344 Ga. App. 623, 812 S.E.2d 16 (2018).

Harmless error as to victim's gang membership.

- Trial court was not required to exclude the evidence of the victim's motorcycle gang membership as any error was harmless since the appellant admitted to shooting the victim, who was a stranger to the appellant at that moment in time and the evidence also showed that the victim was unarmed; thus, it was highly probable that the admission of the victim's alleged gang affiliation would not have contributed to the jury's verdict on the murder charge. Kilpatrick v. State, Ga. , 839 S.E.2d 551 (2020).

Evidence immaterial.

- If evidence is offered to prove a fact not in issue, the evidence is then properly said to be immaterial. MacNerland v. Johnson, 137 Ga. App. 541, 224 S.E.2d 431 (1976) (decided under former Code 1933, § 38-201).

Immateriality need not require reversal.

- Mere fact that evidence is "immaterial" does not necessarily mean that its admission into evidence constitutes reversible error. Evidence which is immaterial will not always require reversal, since prejudice also must appear. Clarke v. State, 159 Ga. App. 843, 285 S.E.2d 270 (1981) (decided under former Code 1933, § 38-201).

Jail phone call relevant.

- Trial court did not err in admitting an audio recording of a five-minute phone call that the defendant made from jail to a friend because the recording was relevant to show that the defendant made statements that were not consistent with either the defendant's statements at the defendant's second police interview or the defense theory of justification presented at trial; and the derogatory terms used by the defendant during the phone call did not create a risk of unfair prejudice that substantially outweighed the recording's probative value as the words that the defendant used had lost much of their shock value in contemporary culture and were unlikely to induce the jury to return a conviction based on a generalized assessment of character. Smith v. State, 302 Ga. 717, 808 S.E.2d 661 (2017).

Exclusion prohibited establishing possibility of intoxication of driver who abandoned vehicle.

- In a personal injury case, the trial court abused the court's discretion by granting the defendant's motion in limine because the excluded evidence was relevant to the most important issue of the case, whether the defendant parked the vehicle in the middle of the road; thus, the trial court's exclusion precluded the plaintiff from establishing that the defendant may have been intoxicated at the time the vehicle was left and/or from opportunities to impeach the defendant's testimony. Barrett v. Burnette, 348 Ga. App. 838, 824 S.E.2d 701 (2019).

Lottery ticket investigator's statement was relevant.

- In a dispute over a $1 million lottery ticket, an investigator's testimony regarding the investigator's conversations with one claimant, including that the claimant did not remember what gas station the claimant purchased the ticket from and that the claimant claimed to always play the numbers on the ticket, which was a quick pick ticket, was highly relevant to the main issue in the case and was properly allowed. Heard v. Payne, 350 Ga. App. 283, 828 S.E.2d 657 (2019), cert. denied, 2020 Ga. LEXIS 19 (Ga. 2020).

Cited in Appling v. State Farm Fire & Cas. Ins. Co., 348 Ga. App. 369, 823 S.E.2d 61 (2019); Strother v. State, 305 Ga. 838, 828 S.E.2d 327 (2019).

Irrelevant Evidence in Civil Cases

Evidence not relevant.

- See Atlantic Coca-Cola Bottling Co. v. Shipp, 170 Ga. 817, 154 S.E. 243, answer conformed to, 41 Ga. App. 705, 154 S.E. 385 (1930) (race) (decided under former Civil Code 1910, § 5744); Gaskill v. Brown, 103 Ga. App. 33, 118 S.E.2d 113 (1961) (decided under former Code 1933, § 38-201); Taylor v. Marsh, 107 Ga. App. 575, 130 S.E.2d 770 (1963); DeFreese v. Beasley, 114 Ga. App. 832, 152 S.E.2d 772 (1966) (decided under former Code 1933, § 38-201); Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); Butler v. Garrison, 123 Ga. App. 645, 182 S.E.2d 185 (1971) (decided under former Code 1933, § 38-201); Lane v. Morrison, 124 Ga. App. 316, 183 S.E.2d 533 (1971); City Council v. Lee, 153 Ga. App. 94, 264 S.E.2d 683 (1980) (decided under former Code 1933, § 38-201); Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 277 S.E.2d 753 (1981); Auto Rental & Leasing, Inc. v. Blizzard, 159 Ga. App. 533, 284 S.E.2d 47 (1981) (materialman's dealing with contractor unrelated to case) (decided under former Code 1933, § 38-201); Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986) (documentary evidence) (decided under former Code 1933, § 38-201); Craig v. State, 205 Ga. App. 691, 423 S.E.2d 417 (1992);(insurance) (decided under former Code 1933, § 38-201);(net worth) (decided under former Code 1933, § 38-201);(nonsuspension of driver's license in DUI case) (decided under former O.C.G.A. § 24-2-1);(defendant's previous encounters with arresting officers) (decided under former O.C.G.A. § 24-2-1).

Ethnic identity of unknown driver not irrelevant.

- In a wrongful death case where the jury determined that an unknown third driver was 90 percent at fault in causing an accident, it was not error to allow a witness to characterize the third driver as Hispanic. The evidence was relevant to show that the witness was paying sufficient attention and was close enough to the vehicle to identify the driver, and the court would not assume that characterizing someone as Hispanic was prejudicial or that the jurors acted out of prejudice. State Farm v. Nelson, 296 Ga. App. 47, 673 S.E.2d 588 (2009) (decided under former O.C.G.A. § 24-2-1).

Evidence in malicious prosecution case.

- Malicious prosecution case was remanded to the trial court because the trial court, after concluding that plaintiff's past criminal history was relevant, should have thereafter considered whether the plaintiff's prior arrests nevertheless should be excluded because of their inherently prejudicial nature or because those arrests potentially would confuse or mislead the jury. Rivers v. K-Mart Corp., 321 Ga. App. 788, 743 S.E.2d 464 (2013).

Irrelevant Evidence in Criminal Cases

Evidence not relevant.

- See Walker v. State, 86 Ga. App. 875, 72 S.E.2d 774 (1952) (decided under former Code 1933, § 38-201); Davis v. State, 115 Ga. App. 338, 154 S.E.2d 462 (1967); Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968) (decided under former Code 1933, § 38-201); Dawson v. State, 120 Ga. App. 242, 170 S.E.2d 45 (1969); Mikle v. State, 236 Ga. 748, 225 S.E.2d 275 (1976) (decided under former Code 1933, § 38-201); Strickland v. State, 247 Ga. 219, 275 S.E.2d 29; 454 U.S. 882, 102 S. Ct. 365, 70 L. Ed. 2d 192 (1981) (decided under former Code 1933, § 38-201);(prior criminal record) (decided under former Code 1933, § 38-201);cert. denied,(mental capability of accused to stand trial at a future date) (decided under former Code 1933, § 38-201).

Because the trial court properly found that testimony tending to show that the defendant's daughter possessed the methamphetamine the defendant was charged with possessing was hearsay, and testimony from the defendant's grandson was irrelevant, the defendant's conviction for possession was affirmed on appeal. Corbin v. State, 287 Ga. App. 194, 651 S.E.2d 101 (2007) (decided under former O.C.G.A. § 24-2-1).

Results of drug test irrelevant.

- Trial court did not err in disallowing defendant's testimony as to results of a test for use of illegal drugs. Whether defendant tested negative for drug use at any time is not relevant to, and did not tend to prove or disprove, whether defendant trafficked in or possessed cocaine as charged in the indictment. Montgomery v. State, 204 Ga. App. 534, 420 S.E.2d 67 (1992) (decided under former O.C.G.A. § 24-2-1).

Medical records.

- In a malice murder case, the trial court did not err when the court refused to admit medical records indicating the second victim was diagnosed with homicidal ideations sometime after the stabbing and assault as the evidence was not relevant because the diagnosis of homicidal ideation was made sometime after the criminal offenses in the case; and the diagnosis of homicidal ideation allegedly concerned thoughts the second victim had about the second victim's girlfriend and the second victim's child and not any thoughts the second victim had about the first victim, who had been murdered. Drews v. State, 303 Ga. 441, 810 S.E.2d 502 (2018).

Name of bookie irrelevant.

- Even though inquiry concerning a victim's gambling activities in general may have been relevant, the name of the bookie's bookie had no direct or indirect relevancy to defendant's guilt or innocence. Sorrells v. State, 267 Ga. 236, 476 S.E.2d 571 (1996) (decided under former O.C.G.A. § 24-2-1).

Expert's testimony on Intoxilyzer 5000 irrelevant.

- Trial court did not err when it excluded an expert witness's testimony about the Intoxilyzer 5000 and the proper procedures pertaining to refusals of the breath test because the state was simply required to show that the defendant was a less safe driver as a result of alcohol that the defendant had consumed and the expert's testimony about the breath test was irrelevant. Stone v. State, 248 Ga. App. 190, 546 S.E.2d 787 (2000) (decided under former O.C.G.A. § 24-2-1).

Trial court did not abuse the court's discretion in excluding expert evidence defendant sought to introduce that allegedly would have attacked the results of defendant's breath test in defendant's driving while under the influence of alcohol case as the expert evidence was too remote and uncertain to be relevant to the issue for which defendant sought to introduce the evidence, that of whether the breath test machine malfunctioned. Viau v. State, 260 Ga. App. 96, 579 S.E.2d 52 (2003) (decided under former O.C.G.A. § 24-2-1).

Cross examination on child pornography images.

- Trial court did not err in limiting the defendant's cross-examination of the co-defendant as to images of child pornography found on the co-defendant's phone because the trial court permitted the defendant's counsel to question the co-defendant as to whether the co-defendant was testifying against the defendant in an attempt to curry favor with the state immediately after the defendant asked the co-defendant about the images. Johnson v. State, 348 Ga. App. 667, 824 S.E.2d 561 (2019).

Videotape evidence irrelevant and excluded.

- In action alleging obstruction of an officer, the trial court did not err in excluding a videotape of the party from evidence as not relevant because the videotape could not have been used to impeach the deputy's testimony; the videotape did not depict the encounter between the deputy and defendant but only depicted events prior to the deputy's arrival at defendant's home. Schroeder v. State, 261 Ga. App. 879, 583 S.E.2d 922 (2003) (decided under former O.C.G.A. § 24-2-1).

Trial court did not err in excluding a videotape of a statement defendant gave to a detective at the time of the defendant's arrest as the statement was not offered to rebut a charge of recent fabrication, improper influence, or improper motive and was pure hearsay. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-1).

Threadbare evidence based on bare suspicion of a third party held inadmissible and excluded.

- Defendant's proffered evidence that a third party told the proffered witness that the third party had killed people before and buried the people in the woods and that the third party then asked the witness if the witness remembered a policeman, who did not work for the city anymore, was properly excluded as it was too threadbare to be admissible and did nothing more than toss a bare suspicion in the direction of a third party. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-1).

Questions about drug involvement irrelevant.

- Trial court properly limited defendant's cross-examination of a drug dealer who defendant claimed was the actual shooter who killed the victim by excluding all questions about the drug dealer's involvement in selling drugs as those questions were irrelevant to the murder trial. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005) (decided under former O.C.G.A. § 24-2-1).

While a defendant was entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant was tried, the trial court did not abuse the court's discretion in excluding evidence that an individual the defendant went to go visit on the night of the arrest was a known drug dealer and had been arrested on drug charges, as there was no evidence tending to connect that person to the marijuana found in the defendant's vehicle; hence, the evidence failed to raise a reasonable inference of the defendant's innocence, and did not directly connect the other person with the corpus delicti, or show that the other person recently committed a crime of the same or similar nature. Gerlock v. State, 283 Ga. App. 229, 641 S.E.2d 240 (2007) (decided under former O.C.G.A. § 24-2-1).

Questions about relationship with nondefendant irrelevant.

- Trial court did not abuse the court's discretion in disallowing a defendant's cross-examination of a victim's mother, about her marriage to the defendant's son as to whether the mother was "debating" with her husband "over someone giving the other person venereal disease," on relevancy grounds as the line of questioning involved the mother's relationship with her husband, rather than with the defendant. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240 (2006) (decided under former O.C.G.A. § 24-2-1).

Expert on alco-sensor test properly excluded.

- Trial court did not abuse the court's discretion in refusing to admit the testimony of a defendant's expert because the mistake charged to an arresting officer in administering an alco-sensor test too soon after the officer first stopped the defendant would not have affected the test result to which the arresting officer testified since the defendant admitted that defendant had been drinking, and the trial court admitted only the officer's testimony that the alco-sensor produced a positive result. Oliver v. State, 294 Ga. App. 299, 669 S.E.2d 162 (2008) (decided under former O.C.G.A. § 24-2-1).

Admission of challenged evidence deemed harmless error.

- In a prosecution against the defendant for child molestation, enticing a child for indecent purposes, and exhibiting pornography to a minor, even if the appeals court assumed that the word "catheter" should have been redacted from what the defendant apparently conceded was an otherwise relevant list of items found in a search, the trial court's failure to do so was harmless error, because it was highly improbable that such failure contributed to the verdict given the overwhelming evidence of the defendant's guilt. Goldey v. State, 289 Ga. App. 198, 656 S.E.2d 549 (2008) (decided under former O.C.G.A. § 24-2-1).

Evidence of abuse of victim's sibling irrelevant.

- In a child molestation case involving the defendant's child, the trial court properly excluded as irrelevant evidence that the child's stepparent had sexually molested the child's sibling. There was no evidence that the child had been molested by the stepparent or by anyone else besides the defendant, and the defendant did not show how the child might have been affected or improperly influenced by the sibling's allegations. French v. State, 288 Ga. App. 775, 655 S.E.2d 224 (2007) (decided under former O.C.G.A. § 24-2-1).

Evidence regarding victim's use of seatbelt.

- Trial court properly excluded evidence of seatbelt-use because evidence of the victim's failure to wear a seatbelt was irrelevant to causation and inadmissible in a criminal case as it did not tend to make it either more or less probable that an accident caused by the defendant proximately caused the victim's death, in violation of the statutes for homicide by vehicle in the first degree predicated on a hit-and-run offense and for hit and run. State v. Mondor, 306 Ga. 338, 830 S.E.2d 206 (2019).

RESEARCH REFERENCES

ALR.

- Admissibility of evidence of medical defendant's apologetic statements or the like as evidence of negligence, 97 A.L.R.6th 519.

Use of Tweets as Evidence in Civil and Criminal Trials, 25 A.L.R. Fed. 3d 5 (2017).

24-4-403. Exclusion of relevant evidence on the grounds of prejudice, confusion, or waste of time.

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(Code 1981, §24-4-403, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons, Fed. R. Evid. 403

Editor's notes.

- In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Sections 24-4-401 and 24-4-402, which may also be applicable to this Code section.

Law reviews.

- For annual survey on evidence law, see 69 Mercer L. Rev. 101 (2017). For annual survey on evidence law, see 70 Mercer L. Rev. 97 (2018). For annual survey on trial practice and procedure, see 70 Mercer L. Rev. 253 (2018). For annual survey on evidence, see 71 Mercer L. Rev. 103 (2019).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-201 and former O.C.G.A. § 24-2-1 are included in the annotations for this Code section.

Evidence which is relevant may be excluded because the probative worth or value of the evidence is outweighed by the tendency of the evidence confuse the issues, or the jury. MacNerland v. Johnson, 137 Ga. App. 541, 224 S.E.2d 431 (1976) (decided under former Code 1933, § 38-201).

Trial court properly excluded the patients' request to admit photographs of their stillborn fetus in their medical malpractice action as there was no dispute that the fetus suffered from skin peeling, and while the issue was slightly probative in the case, it was substantially outweighed by the danger of unfair prejudice. Steele v. Atlanta Maternal-Fetal Med., P.C., 271 Ga. App. 622, 610 S.E.2d 546 (2005), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009) (decided under former O.C.G.A. § 24-2-1).

Unfair prejudice must substantially outweigh probative value to exclude evidence.

- After the state filed a notice of intent to present other acts evidence seeking to admit evidence of prior bad acts through the testimony of three witnesses, and the trial court denied the state's motion, the trial court did not apply the correct standard regarding the exclusion of relevant evidence when the court found only that the probative value of the other acts evidence was not outweighed by the danger of unfair prejudice and failed to analyze whether such prejudice substantially outweighed any probative value. State v. Jackson, 351 Ga. App. 675, 832 S.E.2d 654 (2019).

Evidence of silence or failure to report crime evaluated on case-by-case basis.

- Judicial rule excluding all comment upon a defendant's silence or failure to come forward to report a crime as more prejudicial than probative, Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991), was abrogated by Georgia's new Evidence Code; now such silence or failure to come forward must be evaluated on a case-by-case basis under O.C.G.A. § 24-4-403. State v. Orr, Ga. , S.E.2d (May 6, 2019).

Trial court did not abuse the court's discretion in admitting testimony regarding the appellant's prior acts of sexual assault because that evidence was relevant to the appellant's intent, identity, and propensity and three other family members testified that the appellant engaged in the same conduct of rubbing their genitals and inserting the defendant's finger into their vaginas when the witnesses were the same age as the victim, which testimony was relevant to show the appellant's propensity and that it was the appellant who molested the victim. Dixon v. State, 350 Ga. App. 211, 828 S.E.2d 427 (2019).

When evidence of other crime admissible.

- Trial court's ruling that the other-acts evidence would not be admitted was vacated because the appellate court could not discern whether the trial court considered whether the defendants had taken affirmative steps to withdraw intent as an element to be proved by the state or whether it compared the state of mind involved in the extrinsic offenses with that involved in the charged offenses before finding that the other-acts evidence constituted nothing more than inadmissible propensity evidence. State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).

In the defendant's DUI trial, the state offered evidence concerning the defendant's December 2011 DUI for the valid purpose of proving the defendant's knowledge and intent, and the probative value of the 2011 DUI was not substantially outweighed by the danger of unfair prejudice or the confusion of issues or misleading the jury. The state had proffered sufficient evidence, in the form of both the officer's testimony and the certified conviction, that the defendant in fact committed the prior act. Danley v. State, 342 Ga. App. 61, 802 S.E.2d 851 (2017), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

In a robbery case, the trial court erred by finding that the prosecutor's "in her place" proffer in support of a pretrial notice under O.C.G.A. § 24-4-404(b) seeking to admit evidence of another robbery committed by the defendant provided insufficient proof that the defendant committed the other acts, in the absence of objection by the defendant. State v. Battle, 344 Ga. App. 565, 812 S.E.2d 1 (2018).

By placing intent at issue by claiming at trial that the defendant's delusions completely negated criminal intent, the state needed evidence that the defendant acted with intent to commit the crimes of murder and possession of a firearm; thus, the trial court did not abuse the court's discretion in admitting evidence of a prior New York crime since as to both crimes, the defendant used a handgun to assault people that the defendant perceived had committed an offense against the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257 (2019).

Trial court did not abuse the court's discretion in admitting the two prior acts of child molestation against the defendant especially given the strong presumption in favor of admissibility; the defendant's prior acts against two other women when they were young girls were relevant and probative regarding the defendant's intent and propensity to commit the charged crimes against the victim as there was no showing either on direct or cross-exam that the witnesses' memories were at issue. Sturgis v. State, Ga. App. , 842 S.E.2d 82 (2020).

Trial court did not abuse the court's discretion when the court concluded that the evidence of two prior acts were relevant because the 2002 attack showed that the defendant, when affronted by a romantic partner, would call on male friends to help subdue the partner, as well as the 2003 vase-throwing incident with the defendant biting the victim, were both strikingly similar to the assault upon the defendant's boyfriend, which resulted in the boyfriend's death. Morgan v. State, Ga. App. , 841 S.E.2d 430 (2020).

Evidence of prior acts admissible although defendant acquitted of charges.

- In the defendant's trial for the shooting death of a drug dealer, the trial court properly ruled that a prior similar incident was so similar that evidence showing the defendant's involvement in the prior incident was admissible under O.C.G.A. § 24-4-404(b), despite the defendant's acquittal of charges in that case; however, the trial court erred in excluding evidence of that victim's murder out of "an abundance of caution," which was not a ground for excluding evidence under O.C.G.A. § 24-4-403. State v. Atkins, 304 Ga. 413, 819 S.E.2d 28 (2018).

Admission of other acts evidence in murder trial constituted harmless error.

- Trial court abused the court's discretion admitting 2005 shooting evidence of the appellant's firing a handgun, but that error was harmless in light of the array of other strong evidence demonstrating the appellant's guilt and considering it was an evidentiary error and not of constitutional dimensions; given the overall strength of the other evidence of the appellant's guilt, the Georgia Supreme Court held that it was highly probable that erroneously admitted evidence of the 2005 shooting did not contribute to the jury's verdict. Jackson v. State, 306 Ga. 69, 829 S.E.2d 142 (2019).

Evidence improperly admitted to show course of conduct.

- Defendant was granted a new trial because the evidence of a subsequent armed robbery was not admissible to show motive since that later act was not connected to the murders, and the only similarities it shared with the murders were the all-too-common elements of guns and an assortment of co-conspirators. Thompson v. State, 302 Ga. 533, 807 S.E.2d 899 (2017).

Federal interpretation on exclusion of relevant evidence for "unfair prejudice".

- The Fifth Circuit held that a trial court's exclusion of evidence under Fed. R. Evid. 403 as prejudicial in a bench trial was improper; excluding relevant evidence in a bench trial because the evidence is cumulative or a waste of time is clearly a proper exercise of the judge's power, but excluding relevant evidence on the basis of 'unfair prejudice' is a useless procedure since Rule 403 assumes a trial judge is able to discern and weigh the improper inferences that a jury might draw from certain evidence, and then balance those improprieties against probative value and necessity. In a bench trial, the same judge can also exclude those improper inferences from the judge's mind in reaching a decision. Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517 (5th Cir. 1981).

Evidence in medical malpractice cases.

- In a medical malpractice action, given that the admission of expert testimony that the doctor breached the standard of care in performing two 1998 surgeries on the patient would have arguably forced that doctor to defend against time-barred malpractice claims, the trial court was authorized to conclude that the substantially prejudicial impact of that evidence far outweighed any probative value. Miller v. Cole, 289 Ga. App. 471, 657 S.E.2d 585 (2008) (decided under former O.C.G.A. § 24-2-1).

In a medical malpractice case arising out of a mother's premature delivery of her baby, the trial court did not err in admitting the doctor's note on the mother's chart that the doctor had examined her, which was later marked through with a note "patient not seen, out of room," was probative of the doctor's untruthfulness under O.C.G.A. § 24-6-608(b)(1), given that the mother had not left her room that day. The note was not unduly prejudicial under O.C.G.A. § 24-4-403. Cent. Ga. Women's Health Ctr., LLC v. Dean, 342 Ga. App. 127, 800 S.E.2d 594 (2017).

Evidence of FTC order as to medical procedures may be admissible when the probative value of the evidence is not substantially outweighed by the fact that the admission of the evidence will create undue prejudice, confuse the issues, or mislead the jury. Pound v. Medney, 176 Ga. App. 756, 337 S.E.2d 772 (1985) (decided under former O.C.G.A. § 24-2-1).

Medical records on mental health.

- Trial counsel was not ineffective for failing to present available evidence corroborating the defendant's testimony about the defendant's mental health because trial counsel correctly recognized that under the rule of completeness, the state could have sought to admit portions of the medical records from prison, as well as medical records from other facilities, that were unfavorable to the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257 (2019).

Victim's false accusation of sexual abuse improperly barred.

- Trial court erred in granting the state's motion in limine to exclude evidence that the alleged victim had previously made a false accusation of sexual abuse against another individual based on a lack of specificity and a creation unfair prejudice and confusion of the issues because it was not clear how a false accusation could contain adequate specificity about an incident that never occurred; and because evidence of an allegation against a totally unrelated third party did not seem to present danger of unfair prejudice or confusion of the issues in the prosecution against one defendant, for sexual acts committed on one day, against one individual. Burns v. State, 345 Ga. App. 822, 813 S.E.2d 425 (2018), aff'd, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

Trial court did not abuse the court's discretion by allowing the admission of evidence regarding the defendant's prior drug possession arrest because the evidence of prior drug activity was highly probative of intent to sell a controlled substance for which the defendant was on trial and the prior act of drug possession happened while the defendant was driving a car in the same area where the sale of the methamphetamine during the first buy occurred. Moton v. State, 351 Ga. App. 789, 833 S.E.2d 171 (2019).

Lower appellate court properly reversed the ruling excluding the victim's admittedly false statement of sex because the false allegation plainly described the event involving someone else at a separate time; thus, there was no basis for confusion and, as such, O.C.G.A. § 24-4-403 did not pose a bar to the jury learning about the victim's false statement. State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).

Georgia Supreme Court overruled Smith v. State, 259 Ga. 135 (1989) and similar holdings, which held that Georgia's Rape Shield statute (now O.C.G.A. § 24-4-412), as it then existed, did not prohibit testimony of previous false allegations by the victim as the court held that although Smith's bright-line test was not unworkable, neither was the alternative of applying familiar and usual rules of evidence, which trial courts routinely do every day. State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).

Images of child pornography.

- Trial court did not err in limiting the defendant's cross-examination of the co-defendant as to images of child pornography found on the co-defendant's phone because the trial court permitted the defendant's counsel to question the co-defendant as to whether the co-defendant was testifying against the defendant in an attempt to curry favor with the state immediately after the defendant asked the co-defendant about the images. Johnson v. State, 348 Ga. App. 667, 824 S.E.2d 561 (2019).

Probative value of drug evidence outweighed by prejudicial effect.

- Evidence recovered by law enforcement during a search of the co-indictee's home, including marijuana, baggies, and a digital scale, was clearly relevant and admissible as the defendant and the co-indictee were jointly charged with conspiracy to distribute marijuana based upon their attempt to sell marijuana to the victim prior to the victim's death; furthermore, for the same reasons, the defendant failed to show that the admission of that evidence was more prejudicial than probative. Thorpe v. State, 304 Ga. 266, 818 S.E.2d 547 (2018).

Trial court did not abuse the court's discretion by denying the appellant's pretrial motion to exclude evidence of the purchase and use of marijuana because the evidence was intrinsic since it explained who an individual was and why the appellant believed that the victim would have cash to steal; thus, the drug evidence was necessary to complete the story of the crime for the jury. McCammon v. State, 306 Ga. 516, 832 S.E.2d 396 (2019).

Prejudicial impact outweighed probative value in contract action.

- In a breach of contract suit brought by a contractor who was engaged to advertise a computer program, the trial court properly excluded as irrelevant evidence regarding the purported illegality of the sale of the program as the reason why the defendants stopped selling the program was irrelevant to the issue of whether the contractor was owed commissions from past sales; even if it was relevant, the trial court was authorized to conclude that the substantially prejudicial impact of the evidence far outweighed any probative value. Smith v. Saulsbury, 286 Ga. App. 322, 649 S.E.2d 344 (2007) (decided under former O.C.G.A. § 24-2-1).

Prejudicial impact outweighed probative value in child abuse case.

- While the physician's opinion regarding the victim's hymen being intact and then later not intact was compelling evidence that the victim had been sexually abused, it was much less probative of the question of whether it was the defendant who had molested the victim because the defendant lacked access to the victim during the relevant time period and, thus, should not have been admitted into evidence. State v. Chapman, 322 Ga. App. 82, 744 S.E.2d 77 (2013).

Trial court did not abuse the court's discretion by admitting evidence of prior molestation acts upon a minor victim witness because the jury could have concluded by a preponderance of the evidence that the defendant committed the acts described by the witness and the probative value was great based on the overall similarity of the acts, each involved inappropriate sexual contact between the defendant and a child of similar age to whom the defendant gained access through a relationship with the child's mother. Dixon v. State, 341 Ga. App. 255, 800 S.E.2d 11 (2017).

During the defendant's trial for cruelty to a child, the trial court abused the court's discretion by admitting the defendant's wife's testimony that the wife observed the defendant molesting their two-year-old daughter a day or two after the incident giving rise to the instant charge because the acts were not similar and involved different children, the wife's testimony was not probative of whether the defendant committed the charged crime, and the evidence was extremely prejudicial. The error was not harmless because the defendant denied the charge at trial and the jury acquitted the defendant of family violence battery against the wife despite the wife's testimony. Maqrouf v. State, 349 Ga. App. 174, 825 S.E.2d 569 (2019), overruled on other grounds by Flowers v. State, 307 Ga. 618, 837 S.E.2d 824 (2020).

Trial court erred in allowing the state to introduce evidence of the Department of Family and Children Services (DFCS) safety plan and placement of the child because the potential for prejudice substantially outweighed any probative value of the safety plan and accompanying testimony given that the safety plan referred to the mother as the "maltreater," which could have given the jury the impression that the mother was guilty. Hines v. State, 353 Ga. App. 710, 839 S.E.2d 208 (2020).

Prejudicial impact outweighed probative value in rape case.

- Trial court disagreed that the other acts evidence was especially probative of the credibility of the defendant and the victim, given the lack of similarity between the other acts evidence of child molestation and the charged offense of rape, the decade separating the other acts from the charged offense, and the defendant's immaturity at the time the other acts were committed; however, the trial court believed that, under the circumstances, admitting extrinsic evidence of acts of alleged child molestation would lure the jury into finding the defendant guilty based on proof that was not specific to the crime charged, thereby infecting the proceedings with unfair prejudice and undermining the presumption of innocence. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

In a rape case, the record showed that the trial court made a common sense assessment of the circumstances surrounding the use of the other acts evidence, including prosecutorial need, similarity between the other acts and the charged offense, temporal remoteness, the likelihood of jury confusion by a trial involving three separate incidents, and the unfair prejudice that would flow from the introduction of prior crimes involving allegations of child molestation; thus, the state did not show that the trial court applied the wrong legal standard, misunderstood the nature or scope of the court's discretion, or clearly abused that discretion in excluding the evidence of the other acts in the defendant's case. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

In a rape case, the trial court was not unaware that excluding evidence under this rule was an extraordinary remedy that should be applied sparingly because the trial judge stated that the judge would have been happy to allow the other acts evidence if the judge thought the evidence was appropriate, but the trial court believed that the state was attempting to compensate for a weak case by piling on bad character evidence of scant probative value in an effort to undermine the presumption of innocence; and the trial court was clearly concerned that the admission of the other acts would transform what should be a straightforward case into a trial involving three separate incidents, distracting the jury from the issues central to the crime charged. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

Trial court did not commit reversible error when the court permitted the state to bring the first victim into the courtroom because evidence of the first victim's condition was clearly relevant to the state's cruelty to children in the first and second charges, including that the defendant caused the first victim bodily harm by rendering the first victim's brain, a member of the first victim's body, useless by violently shaking the victim, causing permanent brain damage; the probative value of viewing the victim was not substantially outweighed by the danger of unfair prejudice; and under the Crime Victims' Bill of Rights statute, O.C.G.A. § 17-7-1 et seq., the first victim had the right to be present at the trial. Freeman v. State, 333 Ga. App. 6, 775 S.E.2d 258 (2015).

Trial court did not err by admitting evidence that the defendant committed prior acts of child molestation as the circumstances were similar, the age of the victim during the abuse overlapped with the age of the victim in the instant case, and the manner of abuse was the same, making the prior offense highly probative with regard to the defendant's intent. Eubanks v. State, 332 Ga. App. 568, 774 S.E.2d 146 (2015).

Probative value not outweighed by prejudicial effect in child sexual abuse case.

- Trial court was authorized to conclude that admission of the defendant's federal convictions for possession and distribution of child pornography was not unfairly prejudicial because the state had a need for the evidence based on the victim's delayed outcry and the defendant's attack on the victim's credibility, including testimony from the defendant's mother that the victim never complained about anything hurting when the mother babysat and admitting telling detectives that the victim was a liar because the doors in the mother's home locked. Wrice v. State, Ga. App. , S.E.2d (Apr. 20, 2020).

Probative value not outweighed by prejudicial effect in murder case.

- Probative value of the probation officer's testimony about a phone number that the defendant had given to the officer that linked the defendant to the phone from which numerous calls were placed to one of the murder victims on the day of the murders was not substantially outweighed by its prejudicial effect because the testimony of the probation officer was clearly relevant; it had substantial probative value; although other evidence in the record tended to establish the connection between the defendant and one of the murder victims, none of it established a connection as directly or strongly as the testimony of the probation officer; and other evidence informed the jury that the defendant was on probation. Huff v. State, 299 Ga. 801, 792 S.E.2d 368 (2016).

In a malice murder and aggravated assault case, the trial court abused the court's discretion by admitting the defendant's 2006 convictions for aggravated assault for the purpose of showing intent because, by asserting self-defense, the defendant did not deny the intent to inflict injury, but claimed authority for the act under the legal excuse of reasonable fear of immediate serious harm to oneself or another; and because the prior aggravated assaults were clearly more prejudicial than probative as the fact that the defendant had committed an assault on another person nine years earlier had nothing to do with the defendant's reason for shooting the victim, and really had no purpose other than to show the defendant's propensity toward violence. Brown v. State, 303 Ga. 158, 810 S.E.2d 145 (2018).

Trial court did not abuse the court's discretion by deciding that the probative value of the evidence of the beating was not substantially outweighed by the danger of unfair prejudice because the evidence showed the nature of the parties' relationship and the defendant's motive in shooting the victim. There was nothing inherent in the evidence that would create a risk that the defendant would be convicted on a ground different from proof specific to the offense charged. Flowers v. State, 307 Ga. 618, 837 S.E.2d 824 (2020).

Probative value outweighed by prejudicial effect in robbery case.

- Although evidence of the defendant's prior robberies was relevant for the purpose of showing intent, the evidence was improperly admitted as the prosecutorial need for the other act evidence was minimal; the probative value of the other robberies was quite low; and the probative value of the other act evidence was outweighed by its prejudicial impact suggesting that the defendant was a serial robber. Further, the admission of the evidence was not harmless because it was not so overwhelming or so marginal that the jury's verdict was not likely to be impacted. Sloan v. State, 351 Ga. App. 199, 830 S.E.2d 571 (2019).

Evidence of bar's reputation for violent incidents inadmissible.

- When the defendant was convicted of, inter alia, the malice murder of the first victim and the attempted murder of the second victim, to the extent that the bar's reputation for violent incidents influenced the defendant's state of mind, that reputation and its effect on the defendant was well established through other evidence admitted at trial; thus, even if the proffered incidents had some marginal relevance to the defendant's self-defense claim, any slight probative value was substantially outweighed by considerations of a waste of time or needless presentation of cumulative evidence, and the trial court acted within the court's discretion in excluding the evidence. Ramirez v. State, 303 Ga. 232, 811 S.E.2d 416 (2018), cert. denied, 139 S. Ct. 110, 2018 U.S. LEXIS 5541, 202 L. Ed. 2d 69 (U.S. 2018).

Probative value not outweighed by prejudicial effect.

- Trial court did not err when the court allowed the state to introduce evidence that, on the date of the death of the defendant's wife, the defendant received an email notifying the defendant that the defendant had insufficient funds in the defendant's bank account because it was within the discretion of the trial court to conclude that the evidence was relevant to show that the defendant was under some degree of financial stress and had some reason to be upset on the day of the killing; and the prejudicial effect of the evidence, if any, was minimal and not unfair. McClain v. State, 303 Ga. 6, 810 S.E.2d 77 (2018).

Defendant failed to show that the trial court abused the court's discretion in allowing the state to use firearms as demonstrative aids after the trial court agreed with the state that the demonstration was somewhat probative to support the state's theory of the case and rebut the defense theory and the only potential prejudice that the defendant pointed to was jury confusion over whether the guns displayed in court were actually the guns used in the commission of the alleged crimes, which was addressed when the jury was informed the guns were not. Robinson v. State, Ga. , 842 S.E.2d 54 (2020).

When the defendant was convicted of felony murder and aggravated assault in connection with the shooting death of the victim, the defendant's brother-in-law, the evidence regarding the prior incident in which the defendant hit and pushed the defendant's sister was admissible as intrinsic evidence because the evidence explained why the victim and the defendant's sister were persistent with their requests that the defendant leave, and why the victim followed the defendant outside of the home to ensure that the defendant left; and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Clark v. State, 306 Ga. 367, 829 S.E.2d 306 (2019), cert. denied, 2020 U.S. LEXIS 1059, 206 L. Ed. 2d 180 (U.S. 2020).

Evidence of gang membership improperly admitted.

- Because there was no evidence whatsoever that the robberies were gang-related, and the defendant's prior gang affiliation had minimal probative value with regard to identity, the trial court abused the court's discretion in admitting the evidence of the defendant's gang membership; however, the error was harmless and did not require reversal as the victim identified the defendant in court; a police officer saw the defendant in the same apartment complex where the crimes occurred on the day of the crimes' commission; and the defendant was apprehended two days after the robbery in the same apartment complex wearing a red hat and red jacket matching that described by the victim. Lingo v. State, 329 Ga. App. 528, 765 S.E.2d 696 (2014).

Evidence of gang activity.

- Trial court did not abuse the court's discretion by admitting evidence of the defendant's alleged membership in a gang because the evidence of gang membership was relevant to and probative of motive based on two witnesses testifying as to the defendant's gang affiliation. Anglin v. State, 302 Ga. 333, 806 S.E.2d 573 (2017).

In the defendant's murder trial, defense counsel opened the door to evidence from two witnesses about the defendant's gang activities and prior murders by suggesting that the witnesses had named the defendant as the shooter because the witnesses were afraid of the actual shooter; this evidence was relevant under O.C.G.A. § 24-4-401 and not unduly prejudicial under O.C.G.A. § 24-4-403. Strother v. State, 305 Ga. 838, 828 S.E.2d 327 (2019).

Trial court did not abuse the court's discretion when the court admitted extrinsic evidence of gang activity because the lawyer's statements during opening that the defendant was a member of a gang and that the defendant was in a bind with that gang were not evidence, and the state still had to prove that the defendant was a member of a criminal street gang as well as a connection between that gang and the crimes at issue. Jordan v. State, 307 Ga. 450, 836 S.E.2d 86 (2019).

Crime spree evidence.

- In the defendant's burglary trial, evidence of five uncharged burglaries was admissible because the uncharged and six charged burglaries were part of a two-week crime spree committed by a burglary crew of which the defendant was a part, even if the defendant did not directly participate in some; the uncharged crimes did not fall within O.C.G.A. § 24-4-404(b). Baughns v. State, 335 Ga. App. 600, 782 S.E.2d 494 (2016).

Evidence of plan to commit separate robbery same day not unduly prejudicial.

- In the defendant's robbery trial, evidence that the group had planned to execute another robbery the same day was intrinsic under O.C.G.A. § 24-4-404; it established the members of the group, confirmed the group's goal, and explained how the conspiracy had transformed into the robbery of the victims when they showed up flashing cash around. Because the evidence was intrinsic, it was not subject to the notice requirements of Rule 404(b). The evidence was not unduly prejudicial. Brown v. State, 350 Ga. App. 104, 828 S.E.2d 110 (2019).

Improper prejudice from admission of criminal record during damage phase of trial.

- Trial court did not abuse the court's discretion in ruling that the probative value of the defendant's criminal record, introduced during the damages stage only when the jury could be instructed on the proper use of the evidence, was not substantially outweighed by the danger of improper prejudice. Rivers v. K-Mart Corp., 329 Ga. App. 495, 765 S.E.2d 671 (2014).

Prejudice of cocaine conviction must substantially outweigh probative value.

- Although the victim's conviction for possession of cocaine might have been admissible as the conviction was less than 10 years old and constituted a crime punishable by imprisonment in excess of one year, the trial court erred in merely finding that the probative value of the victim's prior conviction for possession of cocaine was outweighed by the conviction's prejudicial effect and by not requiring the state to show that such prejudice substantially outweighed any probative value; however, the error was harmless because the admission of the victim's prior conviction would have been cumulative of the victim's own damaging testimony. Williams v. State, 328 Ga. App. 876, 763 S.E.2d 261 (2014).

Evidence needlessly cumulative.

- Although the trial court allowed the first neighbor to testify about the defendant's interest in contacting law enforcement, the trial court did not abuse the court's discretion when the court excluded the testimony of the second neighbor about the defendant's interest in contacting law enforcement because the jury heard the recording of the defendant's 911 calls, the jury was well aware that the defendant was interested in contacting law enforcement just prior to the shooting, and the testimony of a second neighbor about that interest would have had little probative value and would have been needlessly cumulative. Corley v. State, Ga. , 840 S.E.2d 391 (2020).

Probative value of stipulation not outweighed by prejudicial impact.

- Because the final decision at the administrative license suspension hearing, which contained the defendant's stipulation that the defendant would plead guilty to driving under the influence of alcohol in exchange for the return of defendant's driver's license, was neither of scant or cumulative probative force nor introduced by the state merely for the sake of its prejudicial effect, and because its probative value was not substantially outweighed by its prejudicial effect, the trial court properly allowed admission of the final decision in the defendant's criminal case over the defendant's objection. Flading v. State, 327 Ga. App. 346, 759 S.E.2d 67 (2014).

Trial court did not abuse the court's discretion by allowing the state to introduce evidence of the defendant's prior driving under the influence (DUI) conviction because the evidence was not unduly prejudicial as the relevance of the prior DUI was heightened since the defendant's defense was that the defendant did not drive the vehicle while intoxicated but drank after stopping; thus, the prior DUI was relevant to the intent to drive while intoxicated since the defendant did so before. King v. State, 338 Ga. App. 783, 792 S.E.2d 414 (2016).

Implicit finding that probative value not outweighed by prejudicial effect.

- Notwithstanding the defendant's waiver of the enumeration of error that the trial court erred by admitting the prior bad acts without undertaking the balancing test, it presented no basis for reversal because the appellate court's review of the record showed that, although the trial court did not make specific findings regarding whether the probative value of the prior crimes was outweighed by its prejudicial impact, it explicitly referenced the balancing test and noted that the evidence had to satisfy the balancing test rule; thus, by admitting the evidence, the trial court implicitly found that the evidence was admissible pursuant to the balancing test rule. Entwisle v. State, 340 Ga. App. 122, 796 S.E.2d 743 (2017).

Probative value outweighed prejudice in use of previous DUI conviction.

- Defendant's conviction for driving under the influence (DUI) and other crimes was affirmed because the defendant's prior DUI conviction was properly admitted since the conviction was relevant to the issue of the defendant's knowledge of the consequences of both consenting to and refusing the tests, and its probative value outweighed any prejudice. Kim v. State, 337 Ga. App. 155, 786 S.E.2d 532 (2016).

Defendant's trial counsel was not ineffective for failing to object to the evidence of the defendant's prior driving under the influence conviction as the evidence was properly introduced by the state to show knowledge or awareness on the defendant's part; was not offered solely for its prejudicial effect; and was not merely of scant or cumulative probative value. Gibbs v. State, 341 Ga. App. 316, 800 S.E.2d 385 (2017).

After the defendant was arrested for driving under the influence (DUI) and refused to submit to a state administered breath test, the state's motion to introduce evidence of other DUI violations was improperly denied as the danger of undue prejudice did not substantially outweigh the probative value of the evidence of other occasions when the defendant drove under the influence because the state demonstrated the state's prosecutorial need for the extrinsic act evidence; the close proximity in time between the three prior DUI arrests and the charged offense; and the overall similarity between the three prior arrests and the current charge, especially with regard to the defendant's experiences with the requested state administered tests. State v. Voyles, 345 Ga. App. 634, 814 S.E.2d 767 (2018).

Probative value outweighed any undue prejudice in criminal case.

- In an armed robbery case, the trial court did not err in admitting a prior armed robbery conviction because the defense's theory that the defendant was present during the current armed robbery but had not participated in robbing the victim squarely challenged the element of intent; there was sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the 2008 armed robbery; the 2008 armed robbery was factually similar to the current armed robbery; and the probative value outweighed any undue prejudice as intent was contested, in that the defendant had admitted to being present but denied participating in the armed robbery. Logan-Goodlaw v. State, 331 Ga. App. 671, 770 S.E.2d 899 (2015).

Trial court did not abuse the court's discretion by admitting evidence from another burglary because the defendant pled not guilty to the burglary charges, thus making intent a material issue, and the defendant's actions in committing the other burglary and pawning the class ring involved the same mental state as burglarizing a house to obtain gold jewelry to sell for cash; thus, the evidence from the other burglary was relevant to establish intent. Silvey v. State, 335 Ga. App. 383, 780 S.E.2d 708 (2015).

Evidence of an earlier altercation between the defendant and a former girlfriend was admissible in the aggravated assault of the victim, the former girlfriend's brother, because the state of mind required for the charged offense of aggravated assault against the victim was the same as the state of mind required for the uncharged act against the former girlfriend, which could have constituted an aggravated assault; the other act was probative of the issue of the defendant's intent, which defense counsel argued to the jury was the biggest issue in the case; and the evidence was sufficient to show that the prior bad act occurred and that the defendant was the person who accosted and threatened the former girlfriend with the knife. Wilson v. State, 336 Ga. App. 60, 783 S.E.2d 662 (2016).

Appellant failed to establish that trial counsel was ineffective for failing to object to the admission of the autopsy photographs as the photographs were relevant and a competent attorney in the position of appellant's trial lawyers would have had every reason to believe that an objection to the autopsy evidence based on O.C.G.A. § 24-4-403 would fail, even if the appellant did not affirmatively dispute the state's proof that the victim was shot to death. Moss v. State, 298 Ga. 613, 783 S.E.2d 652 (2016).

In a DUI case, the trial court did not abuse the court's discretion in finding that the probative value of evidence of the defendant's prior conviction was not substantially outweighed by the prejudicial effect of the evidence, after finding that the circumstances surrounding the prior conviction were similar to the circumstances involving the charged offenses and the charged offenses occurred five to six years after the extrinsic offense, when the defendant would have known it was less safe because it was less safe before. Jones v. State, 335 Ga. App. 563, 782 S.E.2d 466 (2016).

Trial court did not abuse the court's discretion in determining that the prejudicial value of the gun did not substantially outweigh the probative value as it was very probative as rebuttal to the defense that the defendant did not intend to threaten or terrorize but only to warn the judge's family. Satterfield v. State, 339 Ga. App. 15, 792 S.E.2d 451 (2016).

Probative value of the other act evidence was not substantially outweighed by its prejudicial effect as it was unlikely that the jury would be more inflamed in any appreciable measure by the relatively minor other acts evidence than the jury already was by the heinous sexual offenses against children with which the defendant was actually charged. The impact of the other acts evidence was thus relatively minimal. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131 (2016).

Other acts evidence was relevant and admissible and the trial court did not abuse the court's discretion in declining to exclude the evidence regarding two earlier instances in which the defendant obstructed a law enforcement officer because there was a significant connection between the other acts evidence and the required element of the defendant's knowledge, giving the other acts evidence probative value; and the defendant's knowledge was a material issue in the case. Green v. State, 339 Ga. App. 263, 793 S.E.2d 156 (2016).

Other acts evidence that the defendant resorted to violence towards other women who did not accede to the defendant's demands was needed to counter the defense and support the defense case that the defendant intentionally hit the victim after the victim refused the defendant's sexual advances. This evidence added significantly to the other proof used to establish that the defendant hit the victim, and although prejudicial, any prejudice did not substantially outweigh the probative value of the evidence. Harris v. State, 338 Ga. App. 778, 792 S.E.2d 409 (2016).

In an armed robbery case, the trial court did not err in admitting the defendant's prior robbery conviction because, although the defendant contended that intent was not an issue in the case, the defendant's defense that the defendant was merely present in the car when the police stopped the car, and that, if the co-defendant had committed the robbery, the co-defendant committed the robbery with somebody else, squarely challenged the element of intent; furthermore, in light of the similar nature of the acts and the strength of the prior act's connection to demonstrating the defendant's intent, the trial court did not abuse the court's discretion in determining that the probative value of the prior conviction was not outweighed by the prejudicial effect.

Defendant's prior conviction for possession of cocaine with intent to distribute was not a conviction that raised the risk of a verdict tainted by improper considerations in the defendant's trial for murder and, therefore, there was no error in the state's refusal to stipulate to the fact of the prior conviction. Stephens v. State, 307 Ga. 731, 838 S.E.2d 275 (2020).

Prejudicial impact outweighed probative value in use of previous DUI conviction.

- In a driving under the influence (DUI) per se case, the defendant's prior DUI conviction was improperly admitted to show intent as the probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the jury could infer intent from the defendant's act of driving after admittedly consuming alcohol without considering the prior DUI, and there was a danger of interjecting unfair prejudice at trial; however, admission of that evidence was harmless as the direct evidence of the defendant's guilt for the DUI-per se charge was overwhelming as the defendant admitted to consuming alcohol, and the breath tests showed the defendant's blood alcohol content was substantially in excess of 0.08 grams. Jones v. State, 301 Ga. 544, 802 S.E.2d 234 (2017).

Probative value not outweighed by prejudicial effect in theft by taking case.

- In a theft by taking case, because intent was put in issue by the defendant, evidence of the other acts that two witnesses paid the defendant money but never received completed cabinets nor a refund of the witnesses' money was relevant and admissible under O.C.G.A. § 24-4-404(b); furthermore, the probative value of the similar acts was not outweighed by their prejudicial effect pursuant to O.C.G.A. § 24-4-403. Graham v. State, 337 Ga. App. 664, 788 S.E.2d 555 (2016).

Trial court did not abuse the court's considerable discretion when the court admitted the photograph depicting the contents of the trunk of the victim's car showing numerous items found in the trunk, including the victim's body wrapped in a comforter, a gasoline-soaked towel, several articles of clothing, and a photograph of an unidentified young girl sitting in a field because the photographs' potential for prejudice did not substantially outweigh its probative value as the exhibit was of particular importance because it showed how the victim's body was located in relation to both the gasoline-soaked towel and the bottom of the trunk; and the jury heard no testimony about the photograph of the girl. Cheley v. State, 299 Ga. 88, 786 S.E.2d 642 (2016).

Probative value not weighed by prejudicial effect.

- Probative value of the similar transaction evidence was not outweighed by its prejudicial effect given the similarity between the robbery crimes and the fact that the trial court instructed the jury that the similar transaction evidence could only be considered for the limited purpose of showing the defendant's knowledge and intent. McCoy v. State, 332 Ga. App. 626, 774 S.E.2d 179 (2015).

Prejudicial effect of evidence of insurance coverage.

- Pedestrian and the pedestrian's spouse sued a driver over an auto accident. The trial court properly refused to allow plaintiffs to ask whether the driver had entered into an agreement with their uninsured motorist (UM) carrier in exchange for testifying as the trial court could have reasonably concluded that the prejudice resulting from revealing the UM policy outweighed any probative value of evidence of the carrier's waiver of subrogation claims against the driver. McClellan v. Evans, 294 Ga. App. 595, 669 S.E.2d 554 (2008) (decided under former O.C.G.A. § 24-2-1).

No prejudicial effect of evidence of insurance coverage.

- Even if the trial court failed to perform the balancing test under O.C.G.A. § 24-4-403 before admitting evidence that the defendant was the beneficiary of insurance policies on the husband's life in order to prove motive, any error was harmless given the overall strength of the evidence, including evidence of the defendant's decreased interest in the marriage and that the scene appeared to be staged to look like a break in. Ballin v. State, 307 Ga. 494, 837 S.E.2d 343 (2019).

Failure to come forward about murder.

- Defendant's contention that trial counsel was ineffective for failing to object under O.C.G.A. § 24-4-403 to the various questions and answers concerning the defendant's failure to come forward to law enforcement concerning the victim's murder was without merit because the defendant's strategy of self-defense was not prejudiced as the evidence strongly suggested that the crime was not self-defense. The evidence showed that the defendant tied up the victim, left the victim in a locked and alarmed residence, fled in the victim's vehicle and with the victim's property, and then sped away when a police officer attempted to initiate a traffic stop. Jackson v. State, 306 Ga. 266, 830 S.E.2d 99 (2019).

Allowing evidence of witness's compensation.

- In a products liability case, the prejudicial effect of admitting evidence of a car manufacturer's CEO's compensation did not so dramatically outweigh its probative value that it required reversal of the jury verdict; the actions of the CEO in allegedly interfering with a government recall of the vehicle made the CEO's credibility and bias relevant. Chrysler Group, LLC v. Walden, 303 Ga. 358, 812 S.E.2d 244 (2018).

Incomplete record on appeal hampered review of application of balancing test.

- Because the defendant in the defendant's notice of appeal designated only certain portions of the record for inclusion in the record on appeal, the appellate record did not include, among other things, opening statement and closing argument of defense counsel, and the portion of the record where the defense would have presented its case-in-chief or rested without presenting any such evidence; and, given that incomplete record, the defense theory of the case was unclear, which hampered the appellate court's review of the trial court's application of the balancing test in O.C.G.A. § 24-4-403. Adams v. State, 344 Ga. App. 159, 809 S.E.2d 87 (2017), aff'd, 306 Ga. 1, 829 S.E.2d 126 (2019).

In light of the need to consider all the circumstances surrounding the extrinsic offense in an analysis under O.C.G.A. § 24-4-403, the defendant failed to meet the defendant's burden to demonstrate error by the partial record the defendant designated on appeal. Adams v. State, 306 Ga. 1, 829 S.E.2d 126 (2019).

Risk of prejudice reduced by limiting instruction.

- Admission of prior acts evidence was not an abuse of discretion as the similarity between the charged offense and an altercation two days earlier in which the defendant poked the victim with a knife made the former act highly probative of the defendant's intent and the risk of undue prejudice to the defendant was reduced by the court's limiting instruction, charging the jury that the evidence could not be used to infer that the defendant was of a character that would commit such crimes. Powell v. State, 332 Ga. App. 437, 773 S.E.2d 399 (2015).

Photographs of the victim of a crime are admissible.

- Trial court did not abuse the court's discretion in admitting the autopsy photographs of the victim because the photographs were relevant as the medical examiner testified that the photographs showed the internal injuries that caused the victim's death that were not evident from the pre-incision photographs; the fact that the defendant might not have disputed the cause of death did not diminish the relevance of the photographs; and the trial court considered whether the probative value of the photographs was substantially outweighed by the danger of unfair prejudice. Dailey v. State, 297 Ga. 442, 774 S.E.2d 672 (2015).

In the defendant's trial for the murder of a family friend as the victim was showering, crime scene photos showing the victim's genitals were not required to be excluded under O.C.G.A. § 24-4-403 because the photos were probative of the question of whether the victim was killed with malice. Plez v. State, 300 Ga. 505, 796 S.E.2d 704 (2017).

Trial court did not err in allowing certain autopsy photographs of the victim to be admitted because the challenged photographs did not depict the victim's autopsy incisions, and the photographs were not especially gory or gruesome in the context of autopsy photographs in a murder case; the photographs were relevant to show the nature and location of the victim's injuries, which corroborated the state's evidence of the circumstances of the killing; contrary to the defendant's assertion, the victim did not die solely from manual strangulation, but also from blunt force head trauma, and the photographs illustrated the nature and extent of the physical beating and resulting trauma sustained by the victim; and exclusion based on unfair prejudice was not warranted. Pike v. State, 302 Ga. 795, 809 S.E.2d 756 (2018).

After the defendant was convicted of, inter alia, malice murder, the trial court did not abuse the court's discretion in finding that the probative value of the photograph depicting the gunshot wounds to the victim's body was not substantially outweighed by the risk of unfair prejudice to the defendant because photographic evidence that fairly and accurately depicted a body and was offered for a relevant purpose was not generally inadmissible merely because it was gruesome. Favors v. State, 305 Ga. 366, 825 S.E.2d 164 (2019).

Trial counsel was not ineffective for failing to object to the crash-scene photographs depicting the deceased passenger's body in the vehicle wreckage as the photographs were not especially gory or gruesome; and photographic evidence that fairly and accurately depicted a body or crime scene and was offered for a relevant purpose was not generally inadmissible merely because the photograph was gruesome. Calhoun v. State, Ga. , 839 S.E.2d 612 (2020).

Trial court did not err by admitting a pre-autopsy photograph of the victim's upper body to show the jury precisely where the victim was shot and to explain to the jury the effect the bullet had in lacerating the victim's lung and liver as the photograph was not graphic and did not show any autopsy cuts. Allen v. State, 307 Ga. 707, 838 S.E.2d 301 (2020).

Trial court did not abuse the court's discretion by admitting into evidence an autopsy photograph showing the victim's exposed brain because the photograph was relevant as evidence of the severity of the victim's injury, the single photograph was not particularly gory or gruesome, and the court concluded that the trial court did not abuse the court's discretion in deciding that the photograph's probative value was not substantially outweighed by the danger of unfair prejudice. Flowers v. State, 307 Ga. 618, 837 S.E.2d 824 (2020).

Trial court did not err by overruling the defendant's objection to the admission of 17 autopsy photos because the medical examiner testified that none were duplicative and, thus, the probative value was not outweighed by the danger of the photograph's prejudicial effect. Moore v. State, 307 Ga. 290, 307 Ga. 290, 835 S.E.2d 610 (2019).

Photographs more prejudicial than probative.

- With no serious question as to the victim's existence of identity, any probative value of the photographs of the victim while in life, depicting the victim alone and with family, was outweighed by the cumulative prejudice therefrom, and the trial court erred in admitting the photographs. Ragan v. State, 299 Ga. 828, 792 S.E.2d 342 (2016).

"Selfie" videos prejudicial.

- Even if the "selfie" videos of the defendant talking about ways to make money, including robbery, were relevant, the videos were properly excluded because the videos included statements as to the defendant's involvement in drug dealing, an illegal activity that had no relevance to the charged crime, but references to which would have been highly prejudicial. State v. Spriggs, 338 Ga. App. 655, 791 S.E.2d 440 (2016).

Photos were arguably objectionable.

- Three photos from the hospital series that did not depict the victim at all were arguably objectionable by counsel and an objection may have been sustained under O.C.G.A. § 24-4-403 as to relevancy but no ineffective assistance of counsel was shown based on the other evidence against the appellant being strong and the appellant failing to show a reasonable probability that the result of the trial would have been different. Davis v. State, 299 Ga. 180, 787 S.E.2d 221 (2016).

Photo arrays suggestive, not prejudicial.

- Since both the victim and the victim's brother testified that they knew the defendant prior to the incident, and at trial, both identified the defendant as the person who shot the victim, even if the photo arrays were suggestive, the victim and the brother each had an independent basis for the identification of the defendant and the defendant suffered no prejudice. Williams v. State, 353 Ga. App. 821, 840 S.E.2d 32 (2020).

Officer's identification of defendant in social media photographs proper.

- Trial court did not abuse the court's discretion in allowing an officer to identify the defendant in the social media photographs presented at trial because the officer established years of familiarity with the defendant, and that the officer became familiar with the defendant in the officer's capacity as a law enforcement officer, or even in the officer's capacity as a gang expert, did not prevent the officer from providing identification testimony as a lay witness. Bullard v. State, 307 Ga. 482, 837 S.E.2d 348 (2019).

Probative value of jail phone call not outweighed by prejudicial effect.

- Trial court did not err in admitting an audio recording of a five-minute phone call that the defendant made from jail to a friend because the recording was relevant to show that the defendant made statements that were not consistent with either the defendant's statements at the defendant's second police interview or the defense theory of justification presented at trial; and the derogatory terms used by the defendant during the phone call did not create a risk of unfair prejudice that substantially outweighed the recording's probative value as the words that the defendant used had lost much of their shock value in contemporary culture and were unlikely to induce the jury to return a conviction based on a generalized assessment of character. Smith v. State, 302 Ga. 717, 808 S.E.2d 661 (2017).

Recorded jail phone call admissible.

- In a recorded jail call in which the defendant told the defendant's girlfriend that the defendant had messed up, the trial court did not abuse the court's discretion in admitting the call into evidence because, although the defendant's statement might have cast the defendant in a prejudicial light, it was not an unfairly prejudicial light; and the evidence was probative as the evidence indicated that after the shooting the defendant believed the defendant had done something wrong. Bannister v. State, 306 Ga. 289, 830 S.E.2d 79 (2019).

Exclusion prohibited establishing possibility of intoxication of driver who abandoned vehicle.

- In a personal injury case, the trial court abused the court's discretion by granting the defendant's motion in limine because the excluded evidence was relevant to the most important issue of the case, whether the defendant parked the vehicle in the middle of the road; thus, the trial court's exclusion precluded the plaintiff from establishing that the defendant may have been intoxicated at the time the vehicle was left and/or from opportunities to impeach the defendant's testimony. Barrett v. Burnette, 348 Ga. App. 838, 824 S.E.2d 701 (2019).

Admission of National Precursor Log Exchange records in methamphetamine manufacture case.

- State was permitted to introduce National Precursor Log Exchange records showing purchases of pseudoephedrine by the defendant and the defendant's co-conspirator over the defendant's objection that the prejudicial effect of such evidence outweighed its probative value because the records were probative of the fact that both the defendant and the defendant's co-conspirator had, on numerous prior occasions, purchased pseudoephedrine, which was a key precursor in the manufacture of methamphetamine; in several of the records, the defendant listed the residence where the methamphetamine and evidence of methamphetamine production were found at the defendant's home address; and the defendant's address was a contested issue in the case. Cummings v. State, 345 Ga. App. 702, 814 S.E.2d 806 (2018), cert. denied, 2018 Ga. LEXIS 728 (Ga. 2018).

Evidence admissible.

- Evidence of a prior murder by the defendant was relevant to motive because the evidence demonstrated the defendant's willingness to use violence when the defendant or someone close to the defendant was cheated in a drug deal. Bradshaw v. State, 296 Ga. 650, 769 S.E.2d 892 (2015).

Defendant failed to establish that the trial court abused the court's discretion by admitting evidence of the defendant's 2001 conviction for possessing cocaine with the intent to distribute because the defendant placed the defendant's intent in issue by pleading not guilty to the charges of trafficking in cocaine and possessing cocaine with the intent to distribute; the defendant did nothing to remove intent as an issue as the defendant told law enforcement that the defendant did not live in the house throughout which the drugs and drug-distribution paraphernalia were found; and the prior conviction was relevant as the defendant's participation in the earlier crime required the same intent as the charged crimes. Gunn v. State, 342 Ga. App. 615, 804 S.E.2d 118 (2017), cert. denied, 2018 Ga. LEXIS 217 (Ga. 2018).

When the defendant was convicted of two counts of aggravated sodomy and one count each of family violence aggravated assault, family violence battery, terroristic threats, and family violence simple battery against a live-in girlfriend, evidence of prior sexual assaults was properly admitted because it was relevant to show the defendant's intent, which was put in issue when the defendant entered a plea of not guilty; the prior sexual assaults were sufficiently similar to the charged sexual assaults; the state was able to use the evidence to bolster the victim's credibility by demonstrating that the victim's circumstances were not unique; and any risk of unfair prejudice was mitigated by the trial court's limiting instruction. Benning v. State, 344 Ga. App. 397, 810 S.E.2d 310 (2018).

Evidence admissible to combat attacks on victim's credibility.

- Trial court did not err in admitting evidence of two other acts because the probative value of the other acts was great given the state's need for evidence to combat the defendant's attacks on the victim's credibility and negate the defense of consent, and the extrinsic acts, which involved the defendant's attempt at non-consensual sexual gratification with women the defendant did not know, were not of such a heinous nature that the acts were likely to incite the jury to an irrational decision. Cross v. State, 354 Ga. App. 355, 839 S.E.2d 265 (2020).

With regard to images and notes introduced during an investigator's testimony, trial counsel's failure to make an objection on the ground that the evidence was more prejudicial than probative did not meet the defendant's burden under Strickland because the state argued that the evidence was representative of the types of images viewed by the defendant, not that they were the images the defendant viewed, and the images were helpful in demonstrating the type of content in the defendant's phone and web activity. Holzheuser v. State, 351 Ga. App. 286, 828 S.E.2d 664 (2019), cert. denied, 2020 Ga. LEXIS 246 (Ga. 2020).

Evidence of ammunition admissible.

- Trial court did not err in admitting evidence of ammunition found in the defendant's home because although the ammunition's probative value was limited, the prejudicial impact was limited too, the testimony clearly conveyed that the connection between the ammunition and the bullet with which the victim was shot was tenuous, if there were any connection at all, and the other evidence against the defendant was strong. Davidson v. State, 304 Ga. 460, 819 S.E.2d 452 (2018).

Evidence not relevant.

- In a wrongful death action, the trial court did not abuse the court's discretion by refusing plaintiff's request to have evidence of the doctor's medical condition and history admitted because the trial court found that it was not relevant without evidence of such condition and history existing on and during treatment of the plaintiff's decedent.

Trial court did not err by permitting a law-enforcement officer to testify about the pernicious effects of heroin and addiction because the testimony put in context what heroin was and the testimony was relevant to explain why someone might engage in an enterprise to distribute heroin and possess a trafficking amount, and to explain why heroin was a Schedule I controlled substance. Jones v. State, 339 Ga. App. 95, 791 S.E.2d 625 (2016).

Admission of letter written by defendant.

- Trial court properly admitted a letter in the defendant's trial for convictions in connection with a drive-by shooting because the state properly authenticated the letter as authored by the defendant since the letter was given to the prosecution by defense counsel and was properly introduced as evidence of the defendant's guilty consciousness relating to the shooting and the letter's relevance was substantially outweighed by any danger of unfair prejudice. Amey v. State, 337 Ga. App. 480, 788 S.E.2d 80 (2016).

Evidence of videotape admissible in DUI case.

- Trial court did not err by allowing the state to admit demonstrative evidence of video clips showing three types of horizontal gaze nystagmus because the officer's testimony made clear that the video clips were not of the defendant, but that in the substantial particulars, the conditions of the video clips and the officer's observations of the defendant were similar as both showed the same kind of nystagmus. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017).

Video recordings from officers' body cameras probative.

- After the defendant murdered the defendant's two infant daughters by drowning the children, the video-recordings of the crime scene taken from the body cameras of two police officers who responded to the defendant's 911 call were relevant and admissible, with the exception of the last four minutes of the second recording, because those portions as a whole were relevant to show the children's manner of death; the video-recordings were not needlessly cumulative of the manner of death as the state was not required to stipulate to the cause of death and the circumstances surrounding the murders; and the video-recordings were probative of matters other than the manner of death, including rebutting the defendant's insanity defense. Morgan v. State, 307 Ga. 889, 838 S.E.2d 878 (2020).

In the defendant's trial for the murder of the defendant's girlfriend's 17-month-old daughter, the trial court did not err in admitting other-acts evidence under O.C.G.A. § 24-4-404(b) that showed the defendant's violent behavior toward the defendant's former spouses and their children because these violent acts proved intent and lack of mistake or accident. Intent was in issue because the defendant denied harming the victim. Naples v. State, 308 Ga. 43, 838 S.E.2d 780 (2020).

Evidence of defendants' financial worth.

- In a premises liability suit, the trial court erred by excluding evidence of the defendants' security expenditures by failing to determine whether the financial worth of the defendants was relevant to the issue since the plaintiffs contended that such evidence would show that the defendants' increased security expenditures constituted only a small percentage of the defendants' security budget. Cham v. ECI Mgmt. Corp., 353 Ga. App. 162, 836 S.E.2d 555 (2019).

Evidence of arrest following high speed chase properly admitted.

- Trial court did not abuse the court's discretion by allowing the evidence of the defendant's arrest following the high-speed chase because the evidence was intrinsic as both necessary to complete the story of the crimes and inextricably intertwined with the evidence regarding the charged offenses since the evidence established a connection between the defendant and the stolen gun used in the bank robbery and the probative value was not substantially outweighed by the danger of unfair prejudice under the circumstances. Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162 (2019).

Police body-cam recording of shooting victim admissible.

- In the defendant's murder trial, the trial court did not err under O.C.G.A. § 24-4-403 in allowing a police body-camera recording that depicted the victim with the victim's blood pooling on the ground and flowing from the victim's head and face as the victim waited for an ambulance because, although the recording was disturbing, the recording was relevant and probative to show the crime scene, the victim's injuries, and the victim and the victim's fiancee's condition and demeanor as the victims spoke to officers about the shooting. Varner v. State, 306 Ga. 726, 832 S.E.2d 792 (2019).

Evidence of domestic abuse admitted.

- In the defendant's trial for the murder of a former girlfriend's 13-month-old daughter, evidence that the defendant had abused the child's mother was not introduced for one of the purposes listed in O.C.G.A. § 24-4-404(b), but rather to show the mother's possible fear under O.C.G.A. § 24-6-622, which allowed evidence of a witness's feelings towards the parties and the witness's relationship to the parties. Virger v. State, 305 Ga. 281, 824 S.E.2d 346 (2019).

Character evidence admissible for intent.

- Trial court did not abuse the court's discretion in finding that the defendant's prior bad acts were admissible because the defendant pled not guilty, thereby making intent a material issue; thus, the defendant's position of intending only to help the victims, but not to commit any criminal offenses, squarely challenged the element of intent and the witness testified that the defendant sold the witness as a prostitute and held the witness against their will, just like the defendant did with the victims in the case. Curry v. State, 330 Ga. App. 610, 768 S.E.2d 791 (2015), cert. dismissed, No. S16C0519, 2016 Ga. LEXIS 278 (Ga. 2016).

Trial court did not abuse the court's discretion by excluding evidence of one appellant's intent as to the reconveyance of certain funds because no abuse of discretion occurred by excluding evidence of a cumulative nature that could have confused the jury about the primary issue under consideration and created a re-trial. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793, 806 S.E.2d 255 (2017).

Statement of employee nurse of defendant relevant.

- Trial court did not abuse the court's discretion in admitting the testimony of the plaintiff's daughter over the defendant's objection as an admission by a party opponent because the statement was made by a nurse employed by the defendant and was relevant to the slip and fall case. Emory Healthcare, Inc. v. Pardue, 328 Ga. App. 664, 760 S.E.2d 674 (2014).

Probative value not substantially outweighed by danger of unfair prejudice.

- Defendant's recorded telephone conversations made from jail were relevant and admissible: (1) to show the defendant's consciousness of guilt for the armed robbery as the defendant admonished a witness for divulging the defendant's name to the police; the defendant asked the witness if the witness told the police that the defendant had a gun; and the defendant told the witness that the police pressure should not get to the witness as the witness had not done anything; and (2) to corroborate the witness's testimony that the defendant had told the witness not to give the defendant's name to the police; further, the probative value of the recorded telephone calls was not substantially outweighed by the danger of unfair prejudice. Anderson v. State, 337 Ga. App. 739, 788 S.E.2d 831 (2016).

Under a plain error review, since the defendant failed to object at trial, the trial court did not abuse the court's discretion by allowing various autopsy photographs to be admitted into evidence at trial because the photos were not particularly gory or gruesome and were relevant to show the nature and location of the victim's injuries, which corroborated the account of the shooting given by the eyewitnesses who saw the defendant. Benton v. State, 301 Ga. 100, 799 S.E.2d 743 (2017).

Trial court did not err in granting the state's motion to present evidence of the armed robbery of a residence two days before the victim's murder because the evidence of the armed robbery was admissible to show the motive to commit the victim's murder as the defendant and the co-defendant were concerned that the victim would turn them into the police; evidence of motive was relevant even if the evidence incidentally placed the defendant's character in issue; there was sufficient proof that the defendant committed the prior armed robbery; and the trial court did not err in finding that the probative value of the evidence outweighed any prejudice from admission. Pike v. State, 302 Ga. 795, 809 S.E.2d 756 (2018).

Probative value of drug evidence outweighed by prejudicial effect.

- Defendant's prior criminal conviction for possession of cocaine with intent to distribute was properly admitted because the defendant's current and prior crimes for possession of cocaine with intent to distribute were identical, and the intent required to prove the crimes was necessarily the same; the evidence of the prior crime was highly relevant to the issue of the defendant's unlawful possession of cocaine with the intent to distribute or sell it; the evidence was important to the state's case, thereby enhancing its probative value; and any prejudice resulting from the admission of the prior conviction was mitigated by the limiting instruction the trial court gave when the evidence was introduced and in its final charge to the jury. Burgess v. State, 349 Ga. App. 635, 824 S.E.2d 99 (2019).

Trial court did not abuse the court's discretion by excluding other acts evidence involving the defendant having exposed oneself to a female customer inside the same store from which the defendant had offered the victim a ride home because undue prejudice might have resulted from the admission of the other acts evidence and created a likelihood that the jury might convict the defendant because of the other perverted behavior. State v. Isham, 348 Ga. App. 356, 823 S.E.2d 47 (2019).

Trial court did not abuse the court's discretion in admitting a school photograph of the victim taken approximately eight months before the aggravated sexual battery because the photograph had probative value. The photograph tended to show that around the time of the incident that the victim looked like a child, not an adult, thereby making the defendant's claim that the defendant mistook the victim for the victim's mother less probable; and there was evidence that the victim's appearance at the time of the incident did not differ markedly from the photograph taken eight months earlier, but there was evidence that the victim's appearance changed between the incident and the November 2015 trial at which the victim testified. Marroquin v. State, 346 Ga. App. 161, 816 S.E.2d 91 (2018).

Evidence of prior incarceration.

- Trial court did not abuse the court's discretion in admitting improper character evidence of the appellant regarding the appellant's previous incarceration because the appellant's brief statement about being in jail with the individual who assisted in the crime was relevant and admissible to show that the men knew each other prior to the crimes at issue. Easley v. State, 352 Ga. App. 1, 833 S.E.2d 591 (2019).

Admission of sexual intercourse with two other victims.

- Trial court did not abuse the court's discretion in admitting the evidence that the defendant had engaged in sexual intercourse with two other victims who were around the same age as the 14-year-old victim as the defendant put the defendant's intent at issue in the case, and the probative value of the extrinsic acts evidence was not substantially outweighed by the prejudicial effect of the evidence. Boyd v. State, 351 Ga. App. 469, 829 S.E.2d 163 (2019).

Federal interpretation on discretion afforded for admission of evidence.

- The Eleventh Circuit noted that, in making the Fed. R. Evid. 403 determination as to whether the probative value of evidence is substantially outweighed by its prejudicial effect, the trial court is accorded broad discretion that will be reviewed only for clear abuse. United States v. King, 713 F.2d 627 (11th Cir. 1983).

Cited in Edmonson v. State, 336 Ga. App. 621, 785 S.E.2d 563 (2016); Lowery v. State, 347 Ga. App. 26, 815 S.E.2d 625 (2018); Cordova v. State, 351 Ga. App. 652, 832 S.E.2d 465 (2019); Walker v. State, 306 Ga. 579, 832 S.E.2d 420 (2019); McKinney v. State, 307 Ga. 129, 834 S.E.2d 741 (2019); Torres v. State, 353 Ga. App. 470, 838 S.E.2d 137 (2020); Mosley v. State, 307 Ga. 711, 838 S.E.2d 289 (2020); Richardson v. State, 308 Ga. 70, 838 S.E.2d 759 (2020); Chatham v. Gardner Excavating, Inc., 353 Ga. App. 806, 840 S.E.2d 46 (2020).

RESEARCH REFERENCES

ALR.

- Propriety and prejudicial effect of witness testifying while in prison attire, 1 A.L.R.7th 5.

24-4-404. Character evidence not admissible to prove conduct; exceptions; other crimes.

  1. Evidence of a person's character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, except for:
    1. Evidence of a pertinent trait of character offered by an accused or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under paragraph (2) of this subsection, evidence of the same trait of character of the accused offered by the prosecution;
    2. Subject to the limitations imposed by Code Section 24-4-412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same; or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; or
    3. Evidence of the character of a witness, as provided in Code Sections 24-6-607, 24-6-608, and 24-6-609.
  2. Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.

(Code 1981, §24-4-404, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

Cross references.

- Character evidence; crimes or other acts, Fed. R. Evid. 404.

Notice of prosecution's intent to present evidence of similar transactions, Ga. S. Ct. R. 31.3.

Law reviews.

- For article, "Admissibility of Evidence of a Party's Prior Intemperate Habits on the Issue of Intoxication at the Time of An Accident," see 17 Mercer L. Rev. 347 (1966). For annual survey of law on evidence, see 62 Mercer L. Rev. 125 (2010). For annual survey on evidence law, see 66 Mercer L. Rev. 81 (2014). For annual survey of evidence law, see 67 Mercer L. Rev. 63 (2015). For annual survey on criminal law, see 68 Mercer L. Rev. 93 (2016). For annual survey on evidence law, see 68 Mercer L. Rev. 1019 (2017). For annual survey on evidence law, see 69 Mercer L. Rev. 101 (2017). For article, "Legitimizing Character Evidence," see 68 Emory L.J. 443 (2019). For annual survey on evidence, see 70 Mercer L. Rev. 1023 (2019). For annual survey on evidence, see 71 Mercer L. Rev. 103 (2019). For note discussing res gestae, see 3 Ga. B.J. 69 (1940).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3680, former Code 1868, § 3704, former Code 1873, § 3757, former Code 1882, § 3757, former Civil Code 1895, § 5159, former Penal Code 1895, § 993, former Civil Code 1910, § 5745, former Penal Code 1910, § 1019, former Code 1933, § 38-202, and former O.C.G.A. § 24-2-2 are included in the annotations for this Code section.

Construction with O.C.G.A. § 24-4-413. - Provisions of O.C.G.A. § 24-4-413(a) supersede the provisions of O.C.G.A. § 24-4-404(b) in sexual assault cases. O.C.G.A. § 24-4-413(a) is the more specific statute regarding admission of prior acts of child molestation and is, therefore, controlling over O.C.G.A. § 24-4-404(b). Steele v. State, 337 Ga. App. 562, 788 S.E.2d 145 (2016).

Character defined.

- Character in legal parlance has the same meaning as reputation; that is, what one's fellows say about one. Simpkins v. State, 149 Ga. App. 763, 256 S.E.2d 63 (1979) (decided under former Code 1933, § 38-202).

Character evidence restricted to general reputation.

- Admissibility of character evidence depends upon the general reputation of the person in the community, not what the witness knows personally about the subject. Smith v. State, 153 Ga. App. 519, 265 S.E.2d 852 (1980) (decided under former Code 1933, § 38-202).

Use of character evidence.

- Evidence as to character is irrelevant and inadmissible unless the evidence is used to show the character of the witness for veracity, or intended specifically to be used in the impeachment of witnesses for bad character, or equally to rebut an attempt at impeachment by a showing of good character. Edwards v. Simpson, 123 Ga. App. 44, 179 S.E.2d 266 (1970) (decided under former Code 1933, § 38-202).

Evidence regarding the character of a defendant is generally inadmissible unless the defendant puts defendant's character in issue, and evidence of independent offenses committed by a defendant is generally inadmissible due to the inherently prejudicial nature and minimal probative value of the evidence. Henderson v. State, 204 Ga. App. 884, 420 S.E.2d 813 (1992) (decided under former O.C.G.A. § 24-2-2).

General character of parties and especially their conduct in other transactions are irrelevant matters unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct. Vaughn v. Metro. Prop. & Cas. Ins. Co., 260 Ga. App. 573, 580 S.E.2d 323 (2003) (decided under former O.C.G.A. § 24-2-2).

When character is relevant, it must be the general character and not one specific act. Stanley v. Hudson, 78 Ga. App. 834, 52 S.E.2d 567 (1949) (decided under former Code 1933, § 38-202); Taylor v. Marsh, 107 Ga. App. 575, 130 S.E.2d 770 (1963);(decided under former Code 1933, § 38-202).

Introduction of character by defendant.

- Defendant may offer proof of defendant's good character as a relevant fact tending to make defendant's guilt doubtful. Rentfrow v. State, 123 Ga. 539, 51 S.E. 596 (1905) (decided under former Penal Code 1895, § 993); Ware v. State, 18 Ga. App. 107, 89 S.E. 155 (1916);(decided under former Penal Code 1910, § 1019).

Introduction of character by prosecution.

- State cannot put the general character of the defendant in a criminal case in issue. Moulder v. State, 9 Ga. App. 438, 71 S.E. 682 (1911) (decided under former Penal Code 1910, § 1019).

When defendant puts the defendant's character in issue, it is the right of the state to show that the character is bad. Strickland v. State, 12 Ga. App. 640, 77 S.E. 1070 (1913) (decided under former Penal Code 1910, § 1019).

Trial court properly allowed a prosecutor to question defendant about any prior positive drug screens as the purpose was to impeach defendant's unsolicited assertion that the drug screen that was the basis of defendant's prosecution was defendant's only positive drug screen; accordingly, although character and conduct in other transactions is generally irrelevant unless defendant first puts defendant's character in issue, pursuant to former O.C.G.A. §§ 24-2-2 and24-9-20(b) (see now O.C.G.A. §§ 24-4-404,24-4-405 and24-5-506), evidence may be used for impeachment purposes in order to disprove facts testified to by defendant pursuant to former O.C.G.A. § 24-9-82 (see now O.C.G.A. § 24-6-621). Lockaby v. State, 265 Ga. App. 527, 594 S.E.2d 729 (2004) (decided under former O.C.G.A. § 24-2-2).

Questioning of witness about potential offer by defendant to pay for testimony.

- Trial court properly denied a motion for mistrial based on the prosecution's question to a witness as to whether a defendant offered money to the witness to testify on the defendant's behalf because evidence that the defendant attempted to influence the witness's testimony could be offered to show consciousness of guilt, and in any event, any harm was mitigated by the fact that the witness answered in the negative. Branton v. State, 292 Ga. App. 104, 663 S.E.2d 414 (2008), cert. denied, No. S08C1771, 2008 Ga. LEXIS 873 (Ga. 2008) (decided under former O.C.G.A. § 24-2-2).

Admitting evidence of independent offenses.

- Evidence of independent offenses may be admitted if the state introduces the evidence for a proper purpose, if there is sufficient evidence to establish that the defendant actually committed the independent offenses, and if there is sufficient similarity between the charged offense and the independent offenses. Henderson v. State, 204 Ga. App. 884, 420 S.E.2d 813 (1992) (decided under former O.C.G.A. § 24-2-2).

Transactions of a similar nature or like character to those charged in the petition in which the defendant had engaged previously to the one in question are admissible in evidence. Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240, 155 S.E. 1 (1930) (decided under former Civil Code 1910, § 5745).

Similar acts are admissible in evidence, if committed or proposed at or about the same time, and when the same motive reasonably may be supposed to exist, with a view to establish the intent of the defendant in respect to the matters charged against the defendant in the petition; this is so in transactions of similar nature or like character in which the defendant had engaged previously to the one in question. Tapley v. Youmans, 95 Ga. App. 161, 97 S.E.2d 365 (1957) (decided under former Code 1933, § 38-202).

Similar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time and place. Genins v. Geiger, 144 Ga. App. 244, 240 S.E.2d 745 (1977), cert. denied, 444 U.S. 991, 100 S. Ct. 521, 62 L. Ed. 2d 420 (1979) (decided under former Code 1933, § 38-202).

Offense with no factual similarity not admissible.

- While evidence of the defendant's prior drug offenses was relevant at trial for felony possession of more than one ounce of marijuana and admissible in light of the extensive limiting instructions regarding other acts given to the jury, which reduced the risk of undue prejudice, the trial court erred in admitting evidence of the defendant's prior arrest and conviction for family violence because there was no factual similarity between the battery offense and the charged offense. Watkins v. State, 353 Ga. App. 606, 839 S.E.2d 41 (2020).

Cross-examination as to specific acts or transactions.

- When the good character of a defendant is put in issue, evidence as to general bad character with respect to the particular trait may be shown in rebuttal; but in so doing it is not permissible to prove specific acts, except on crossexamination for the purpose of testing the knowledge of the defendant's witnesses, and except for the purpose of impeaching knowingly false statements made by the defendant personally to the jury or by the defendant's witnesses on cross-examination. Mimbs v. State, 189 Ga. 189, 5 S.E.2d 770 (1939) (decided under former Code 1933, § 38-202); Johnson v. State, 84 Ga. App. 745, 67 S.E.2d 246 (1951); Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758 (decided under former Code 1933, § 38-202); 218 Ga. 193, 126 S.E.2d 785 (1962); Horton v. State, 228 Ga. 690, 187 S.E.2d 677 (1972), aff'd in part and rev'd in part, Cowan v. State, 130 Ga. App. 320, 203 S.E.2d 311 (1973) (decided under former Code 1933, § 38-202); Compher v. Georgia Waste Sys., 155 Ga. App. 819, 273 S.E.2d 200 (1980); Curry v. State, 155 Ga. App. 829, 273 S.E.2d 411 (1980) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

Transactions with third parties.

- It was error for the court to permit the defendant, over objection, to be interrogated on cross-examination about a transaction between the defendant and a third party, which was entirely separate and distinct. Head v. John Deere Plow Co., 71 Ga. App. 276, 30 S.E.2d 662 (1944) (decided under former Code 1933, § 38-202); Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318 (1968); Dennis v. Dennis, 227 Ga. 164, 179 S.E.2d 238 (1971) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

"Mug shots" and other court appearances.

- Admission in evidence of a "mug shot" of the defendant does not inject the defendant's character into evidence nor does the mere presence of the defendant on trial in some other court without more inject the defendant's character into evidence. Creamer v. State, 229 Ga. 704, 194 S.E.2d 73 (1972) (decided under former Code 1933, § 38-202); Tankersley v. State, 155 Ga. App. 917, 273 S.E.2d 862 (1980); Jones v. State, 156 Ga. App. 56, 274 S.E.2d 99 (1980) (decided under former Code 1933, § 38-202); Price v. State, 159 Ga. App. 662, 284 S.E.2d 676 (1981);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

Bolstering of testimony.

- It is permissible to strengthen a witness's testimony by evidence of matters showing its consistency and reasonableness, and tending to indicate that the facts probably were as stated by the witness. Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318 (1968) (decided under former Code 1933, § 38-202).

Evidence of a compromise is inherently harmful in spite of anything a judge might say in instructing a jury as to the weight to be given such evidence, and to allow testimony concerning evidence of compromise deprives a defendant of a fair and impartial trial. Boyd v. State, 146 Ga. App. 359, 246 S.E.2d 396 (1978), overruled on other grounds, Sabel v. State, 250 Ga. 640, 300 S.E.2d 663 (1983) (decided under former Code 1933, § 38-202).

Similar transaction hearing sufficient despite only summary of testimony.

- Similar transaction hearing was sufficient even though, instead of calling a witness to testify, the state merely proffered a summary of a witness's testimony; the state introduced no hearsay evidence during trial, and the defendant had ample opportunity to cross-examine the similar transaction witness at trial. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-2).

State may mention similar transaction evidence in opening statement.

- State did not commit error by referencing the 2003 similar transaction evidence in the state's opening statement because, even if the defendant had properly preserved that objection for appellate review, the defendant had not provided any authority for the contention that a prosecutor could not refer in opening statement to similar transaction evidence which had already been ruled admissible. Nguyen v. State, 330 Ga. App. 812, 769 S.E.2d 558 (2015).

Standard of review.

- Absent an abuse of discretion, a trial court's ruling as to the admissibility of similar transaction evidence will not be disturbed. Hostetler v. State, 261 Ga. App. 237, 582 S.E.2d 197 (2003) (decided under former O.C.G.A. § 24-2-2).

Appellate court will not disturb a trial court's determination that similar transaction evidence is admissible absent an abuse of discretion. Cain v. State, 268 Ga. App. 39, 601 S.E.2d 415 (2004) (decided under former O.C.G.A. § 24-2-2).

Cited in Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018); Cunningham v. State, 304 Ga. 789, 822 S.E.2d 281 (2018); Luckie v. Berry, 305 Ga. 684, 827 S.E.2d 644 (2019); Grier v. State, 305 Ga. 882, 828 S.E.2d 304 (2019); Allen v. State, 307 Ga. 707, 838 S.E.2d 301 (2020); In the Interest of P. T., 353 Ga. App. 511, 838 S.E.2d 596 (2020); Deloach v. State, Ga. , 840 S.E.2d 396 (2020).

Civil Cases

Question established credibility.

- Testimony was not prejudicial to the plaintiff when defense counsel asked the defendants' expert witness whether the expert had participated in a particular religious program and to describe the program. This question served only to help introduce the witness to the jury and to contribute to establishment of the expert's credibility; it did not present a basis for reversing the jury's verdict. Brannen v. Prince, 204 Ga. App. 866, 421 S.E.2d 76 (1992), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009) (decided under former O.C.G.A. § 24-2-2).

Similar transaction evidence on failure to pay.

- In a complaint alleging failure to pay pursuant to a contract for accounting services, it was not an abuse of discretion to allow testimony which stated that the charges of other accountants and attorneys who worked for the defendant on the same project were approximately twice as much as their original estimates and that the defendant had failed to pay when the plaintiffs claimed that their charges were also double the amount originally estimated due to delays caused by the defendant in light of the similarity of the transactions involved and the issue of bad faith. Candler v. Davis & Upchurch, 204 Ga. App. 167, 419 S.E.2d 69 (1992) (decided under former O.C.G.A. § 24-2-2).

In an action involving an insurer's attempt to cancel a policy for nonpayment of a premium, evidence of the insured's history of tardy payment of bills was properly excluded. State Farm Mut. Auto. Ins. Co. v. Drury, 222 Ga. App. 196, 474 S.E.2d 64 (1996) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion in ruling that a widow could not introduce evidence of an insurer's conduct towards insureds in two prior cases in which the court refused to honor incontestability clauses to demonstrate bad faith because the trial court was entitled to find that the prior cases were materially dissimilar from the widow's case, given that neither of those cases involved coverage under the group policy at issue and the revisions to the certificate of insurance forms made that year. Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 718 S.E.2d 343 (2011), cert. denied, No. S12C0461, 2012 Ga. LEXIS 305 (Ga. 2012) (decided under former O.C.G.A. § 24-2-2).

Evidence of defendant's character is admissible in fraud cases. German Am. Mut. Life Ass'n v. Farley, 102 Ga. 720, 29 S.E. 615 (1897) (decided under former Civil Code 1895, § 5159); Mays v. Mays, 153 Ga. 835, 113 S.E. 154 (1922); 33 Ga. App. 335, 126 S.E. 299 (1924), aff'd on other grounds, Wimberly v. Toney, 175 Ga. 416, 165 S.E. 257 (1932) (decided under former Civil Code 1910, § 5745); Lawler v. Life Ins. Co. of Ga., 90 Ga. App. 481, 83 S.E.2d 281; 211 Ga. 246, 85 S.E.2d 1 (1954) (decided under former Civil Code 1910, § 5745); Kilgore v. United States, 467 F.2d 22 (5th Cir. 1972);rev'd on other grounds,(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

While evidence of the insured's general good character is relevant and admissible in a suit on the insured's policy of insurance, since the insurer defends on the ground that the insured perpetrated a fraud on the insurer in procuring the insured's policy; yet, in a case where such fraud is shown by witnesses who swear positively to facts sustaining the defense of fraud, the jury is not authorized to find from evidence of the insured's good character alone that the plaintiff has shown plaintiff's right to recover by a preponderance of evidence. Life Ins. Co. v. Lawler, 211 Ga. 246, 85 S.E.2d 1 (1954) (decided under former Code 1933, § 38-202).

Other transactions showing fraud.

- Evidence that parties charged with having been engaged in a fraudulent scheme to defraud laborers and materialmen in a building transaction had proposed, or had been engaged in, similar fraudulent schemes, is admissible to show fraudulent intent in the transaction in controversy, if it is shown that the other transactions were fraudulent and that the transactions were so connected in point of time and otherwise with the one in issue as to make it apparent that all were proposed or carried out in pursuance of a common fraudulent purpose. Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240, 155 S.E. 1 (1930) (decided under former Civil Code 1910, § 5745).

Other transactions showing fraud are admissible to show intent. Tapley v. Youmans, 95 Ga. App. 161, 97 S.E.2d 365 (1957) (decided under former Code 1933, § 38-202).

In an action for fraud involving a construction contract, evidence of unrelated contract disputes that defendant had purportedly evincing fraudulent intent was admissible. John W. Rooker & Assocs., Inc. v. Wilen Mfg. Co., 211 Ga. App. 519, 439 S.E.2d 740 (1993) (decided under former O.C.G.A. § 24-2-2).

Character irrelevant in negligence cases.

- In actions arising out of automobile collisions, the issue is the negligence or nonnegligence of the operator at the time and place of the event, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties. Grannemann v. Salley, 95 Ga. App. 778, 99 S.E.2d 338 (1957) (decided under former Code 1933, § 38-202).

Reputation of a defendant or defendant's employee for exercising care in the defendant's actions is not admissible to show that due care was exercised on the occasion in question. Georgia Ports Auth. v. Mitsubishi Int'l Corp., 156 Ga. App. 304, 274 S.E.2d 699 (1980) (decided under former Code 1933, § 38-202).

In an action arising out of an auto accident, evidence of deceased's prior drug and alcohol use and prior conduct was irrelevant to the question of liability and the issue of damages. Taylor v. RaceTrac Petroleum, Inc., 238 Ga. App. 761, 519 S.E.2d 282 (1999) (decided under former O.C.G.A. § 24-2-2).

Evidence of quality of work from other employees.

- In a suit to recover commissions advanced to an agent prior to termination of the agent's employment, testimony from the agent's other employers that the service the agent had rendered the agent's customers was not valuable, was properly excluded; the agent's conduct in transactions involving other employers was not relevant, and would unduly prejudice the jury. Duggan Ins. Agency, Inc. v. Altschul, 195 Ga. App. 458, 394 S.E.2d 119 (1990) (decided under former O.C.G.A. § 24-2-2).

Evidence physician failed board exam irrelevant.

- In a medical malpractice case, the court's refusal to allow evidence that a physician did not pass the physician's board examination was not an abuse of discretion. Williams v. Memorial Medical Ctr., Inc., 218 Ga. App. 107, 460 S.E.2d 558 (1995) (decided under former O.C.G.A. § 24-2-2).

References to prior "case" against a medical malpractice defendant did not require mistrial.

- In a medical malpractice case, although a patient's counsel's two brief references to another "case" in cross-examination of the defense expert were arguably improper under O.C.G.A. § 24-4-404(a), the references did not explicitly impute any prior negligence to the doctor or indicate that the doctor had previously been sued; the references were insufficient to fatally infect the verdict and require a mistrial. Southwestern Emergency Physicians, P.C. v. Quinney, 347 Ga. App. 410, 819 S.E.2d 696 (2018).

Evidence on lack of CPA license.

- Trial court did not err in precluding the corporation's purported impeachment evidence about why the investor had not obtained the investor's CPA license as the evidence was irrelevant to the issues being tried. Kothari v. Patel, 262 Ga. App. 168, 585 S.E.2d 97 (2003) (decided under former O.C.G.A. § 24-2-2).

Evidence in legal malpractice cases.

- Rules of the State Bar of Georgia, while not determinative of the standard of care applicable in a legal malpractice case, may be considered along with other facts and circumstances to determine whether an attorney treated a client with the requisite degree of skill and care. Watkins & Watkins, P.C. v. Williams, 238 Ga. App. 646, 518 S.E.2d 704 (1999) (decided under former O.C.G.A. § 24-2-2).

Outdated financial affidavit was relevant to claim that a spouse hid or dissipated assets.

- In a divorce proceeding, it was not an abuse of discretion to reject the relevancy objection of a spouse to the admission of a financial affidavit that the spouse prepared several months before the trial on the ground that the affidavit was prejudicial because the affidavit made it appear that the spouse had attempted to hide assets; the relevancy objection was properly rejected because it was the position of the other spouse that the spouse had hidden or dissipated assets during the pendency of the divorce proceedings. Moxley v. Moxley, 281 Ga. 326, 638 S.E.2d 284 (2006) (decided under former O.C.G.A. § 24-2-2).

Evidence of similar acts in negligence cases.

- Allegation that the defendant in a personal injury suit was aware that other persons had slipped and fallen under substantially the same circumstances was not subject to special demurrer as immaterial and irrelevant matter. Belk-Matthews Co. of Macon v. Thompson, 94 Ga. App. 331, 94 S.E.2d 516 (1956) (decided under former Code 1933, § 38-202).

It is a general rule that in a suit for negligence, evidence of similar acts or omissions on other and different occasions is not admissible. Wright v. Dilbeck, 122 Ga. App. 214, 176 S.E.2d 715 (1970) (decided under former Code 1933, § 38-202);(but see CSX Transp. v. Trism Specialized Carriers, 9 F. Supp. 2d 1374 (N.D. Ga. 1998) (decided under former O.C.G.A. § 24-2-2)).

As a general rule in all negligence actions, evidence of similar acts or omissions is not admissible; however, if proof of a similar accident or similar method of acting tends to prove some fact of the case on trial, the testimony falls within an exception - such as to show knowledge of a defect or causation, or to rebut a contention that it was impossible for the accident to happen in the manner claimed, or to show the prior existence of a dangerous condition or hazardous situation. Gunthorpe v. Daniels, 150 Ga. App. 113, 257 S.E.2d 199 (1979) (decided under former Code 1933, § 38-202).

In an action alleging that the owner of an apartment complex breached a duty to keep the premises safe, the trial court did not abuse the court's discretion when the court refused to admit evidence of a carjacking that occurred near the complex because the carjacking occurred on a public street and in a location of unknown proximity to the complex. Raines v. Maughan, 312 Ga. App. 303, 718 S.E.2d 135 (2011), cert. denied, No. S12C0436, 2012 Ga. LEXIS 270 (Ga. 2012) (decided under former O.C.G.A. § 24-2-2).

Evidence of absence of similar acts in negligence cases.

- If evidence of prior similar acts of negligence is not admissible, it follows that evidence of the absence of any such prior acts is equally inadmissible. Williams v. Naidu, 168 Ga. App. 539, 309 S.E.2d 686 (1983) (decided under former O.C.G.A. § 24-2-2).

Evidence of injuries sustained by other parties on prior occasions may be admitted for the purpose of showing that the defendant had been given notice of a dangerous condition and was thus negligent in allowing the condition to continue. Norfolk S. Ry. v. Thompson, 208 Ga. App. 240, 430 S.E.2d 371 (1993) (decided under former O.C.G.A. § 24-2-2).

Evidence of prior impairment from injuries admissible.

- Trial court properly denied a nurse's motion in limine to exclude evidence of injuries that the nurse sustained in a prior car accident pursuant to former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) in an action against a medical practice, arising from alleged injuries that the nurse sustained when an office door opened and hit the nurse in the face and head, as the injuries in the doorway accident were related to the prior injuries because the nurse claimed a permanent impairment to the nurse's ability to work in both situations; the nurse's claim that the permanent impairment claims from the injuries were not substantially similar went to the weight of the evidence and not to the admissibility. Kilday v. Kennestone Physicians Ctr., L.P., 296 Ga. App. 818, 676 S.E.2d 271 (2009) (decided under former O.C.G.A. § 24-2-2).

Evidence of subsequent careless occurrence excluded.

- Testimony of a police officer, regarding the subsequent occurrence of a dog breaking loose and running into a bite-victim's yard, should have been excluded since the only logical purpose of such testimony was to raise the inference that if the dog owners were careless in their management of the dog on one occasion, the owners were probably careless on the occasion in question. Torrance v. Brennan, 209 Ga. App. 65, 432 S.E.2d 658 (1993) (decided under former O.C.G.A. § 24-2-2).

In product liability actions, evidence of other incidents involving the product is admissible and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity; without a showing of substantial similarity, the evidence is irrelevant as a matter of law. Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 461 S.E.2d 877 (1995), aff'd, 276 Ga. 226, 476 S.E.2d 565 (1996) (decided under former O.C.G.A. § 24-2-2).

Evidence plaintiff filed prior lawsuit not irrelevant.

- Testimony elicited from plaintiff in a negligence action during cross-examination which showed that plaintiff had been involved in a single lawsuit 22 years prior to trial was not irrelevant or prejudicial because it was not indicative of litigiousness. Wages v. Sibran, Inc., 171 Ga. App. 14, 318 S.E.2d 679 (1984) (decided under former O.C.G.A. § 24-2-2).

Evidence of continuing process.

- Preparation of 125 turkeys was a continuous process which took some time to complete. The jury could properly infer from the evidence showing and tending to show a lack of negligence in the handling of all of the turkeys during the continuance of the undertaking that the same lack of negligence attended the handling of the one turkey by which plaintiffs were injured. Carsten v. Wilkes Supermarket of Gwinnett County, Inc., 181 Ga. App. 834, 353 S.E.2d 922 (1987) (decided under former O.C.G.A. § 24-2-2).

In a wrongful death action against a truck manufacturer based on product liability and negligence, evidence that no truck of the type and design involved had ever been recalled or had been the subject of a regulatory proceeding was relevant and admissible to show that defendant's design and manufacture was not negligent. Browning v. Paccar, Inc., 214 Ga. App. 496, 448 S.E.2d 260 (1994) (decided under former O.C.G.A. § 24-2-2).

Insurer's mishandling of related claim.

- Trial court, in an employee's action against an employer for failure to pay no-fault insurance benefits, properly excluded evidence of the insurer's mishandling of a related workers' compensation claim on the issue of punitive damages. Williams v. Aetna Cas. & Sur. Co., 182 Ga. App. 684, 356 S.E.2d 690 (1987) (decided under former O.C.G.A. § 24-2-2).

Witness's testimony that defendant had a reputation for hurting people was admissible to explain the witness's reason for lying even though it incidentally put the defendant's character in issue. Smith v. State, 165 Ga. App. 669, 302 S.E.2d 414 (1983) (decided under former O.C.G.A. § 24-2-2).

Evidence of severance pay under similar circumstances.

- In a suit to recover severance pay by employee remaining on job until sale of the company was consummated, the trial court did not err in allowing two former employees to testify that those employees had received severance pay upon their voluntary departure from the company after the sale of the corporation. Amax, Inc. v. Fletcher, 166 Ga. App. 789, 305 S.E.2d 601 (1983) (decided under former O.C.G.A. § 24-2-2).

Evidence of prior claims against defendant.

- In an action alleging that defendant jewelry store substituted a flawed diamond in a ring plaintiff brought in to be re-set, the trial court did not err in excluding evidence of prior disputes between defendant and other customers. Ament v. Bennett's Fine Jewelry, 249 Ga. App. 683, 549 S.E.2d 501 (2001) (decided under former O.C.G.A. § 24-2-2).

General partners' (GPs') motion for a new trial was properly denied as evidence of a GP's involvement in a prior suit was properly admitted. The prior suit was relevant to show a course of conduct because the prior suit also involved a breach of a partnership agreement, a breach of fiduciary duty, a nursing home, and accusations that the GP violated the plain language of the partnership agreement by failing to pay the limited partners their preferred returns. Kellett v. Kumar, 281 Ga. App. 120, 635 S.E.2d 310 (2006) (decided under former O.C.G.A. § 24-2-2).

Character evidence was admissible in the following cases.

- See McNabb v. Lockhart & Thomas, 18 Ga. 495 (1855) (reputation of one charged with loss of money) (decided under former Code 1863, § 3680); DuBose v. DuBose, 75 Ga. 753 (1885) (character of spouse charged with cruelty) (decided under former Code 1882, § 3757); McClure v. State Banking Co., 6 Ga. App. 303, 65 S.E. 33 (1909) (character of one accused of forgery) (decided under former Civil Code 1895, § 5159); Georgia Southern & Florida Ry. v. Ransom, 5 Ga. App. 740, 63 S.E. 525 (1909), aff'd on other grounds, 10 Ga. App. 558, 73 S.E. 858 (1912) (character of employee against whom damages were sought for insulting conduct) (decided under former Civil Code 1895, § 5159); Conley v. Conley, 152 Ga. 184, 108 S.E. 777 (1921) (character of spouse charged with adultery) (decided under former Civil Code 1910, § 5745); Dalton v. Jackson, 66 Ga. App. 625, 18 S.E.2d 791 (1942) (character in civil action for rape) (decided under former Code 1933, § 38-202); Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961) (character of spouse charged with cruelty) (decided under former Code 1933, § 38-202); Murray v. Clayton, 151 Ga. App. 720, 261 S.E.2d 455 (1979) (reputation of one for being married) (decided under former Code 1933, § 38-202); Shivers v. Webster, 224 Ga. App. 254, 480 S.E.2d 304 (1997);(action to enforce oral promise) (decided under former O.C.G.A. § 24-2-2).

Admission of character evidence in deprivation proceeding.

- Evidence that a father had emotionally abused and neglected a child by repeatedly beating and threatening to kill the child's mother in the child's presence, along with evidence that the father also repeatedly beat the first wife, was relevant to whether the cause of the child's deprivation was likely to continue under O.C.G.A. § 15-11-94 and was admissible under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405). Davis v. Rathel, 273 Ga. App. 183, 614 S.E.2d 823 (2005) (decided under former O.C.G.A. § 24-2-2).

Evidence that parent missed medical appointments for child.

- Evidence of the mother's missed health care appointments for her child did not relate to her conduct in other transactions, as contemplated by former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), but was probative of causation, and thus, was admissible in the mother's medical malpractice action against the health care providers who reviewed the child's case before the child died. Fulton-DeKalb Hosp. Auth. v. Dawson, 270 Ga. 376, 509 S.E.2d 28 (1998) (decided under former O.C.G.A. § 24-2-2).

Evidence of parent's alleged suicide attempt in custody modification case.

- In ruling on a parent's petition to modify custody, as the trial court made no finding of the existence of family violence under O.C.G.A. § 19-9-3(a)(4), whether the other parent had sought the help of a mental health professional or had attempted to commit suicide many years earlier was not probative of any material issue in the case. Therefore, such evidence was properly excluded. Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009) (decided under former O.C.G.A. § 24-2-2).

Character evidence was inadmissible in the following cases.

- See Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890) (beneficiary's character in insurance case) (decided under former Code 1882, § 3757); Stanley v. Willingham, 93 Ga. App. 421, 91 S.E.2d 791 (1956); Dennis v. Dennis, 227 Ga. 164, 179 S.E.2d 238 (1971) (decided under former Code 1933, § 38-202); Ginsberg v. Termotto, 175 Ga. App. 265, 333 S.E.2d 120 (1985);(evidence from spouse's former divorce) (decided under former Code 1933, § 38-202);(evidence of past good act irrelevant to issue of liability for utility expenses) (decided under former O.C.G.A. § 24-2-2).

Evidence of prior consensual adulterous relationship not admitted.

- Evidence of a dentist's prior consensual adulterous relationship was properly excluded from the evidence as the evidence was irrelevant to a former employee's claim against the dentist for assault and battery and would only have served to impugn the general character of the dentist. Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (2008) (decided under former O.C.G.A. § 24-2-2).

Character evidence is admissible in termination of parental rights cases.

- Evidence of a parent's character is admissible in a termination of parental rights proceeding as the proceeding inherently involves character issues, specifically the parent's ability to provide proper parental care and control; while most civil cases require the factfinder to determine the truth only with regard to the discrete transactions in issue, termination cases require the factfinder to predict a parent's future conduct and ability to parent. Davis v. Rathel, 273 Ga. App. 183, 614 S.E.2d 823 (2005) (decided under former O.C.G.A. § 24-2-2).

Evidence admissible in negligent hiring and retention claim.

- Evidence of a dentist's harassment of other employees and a patient was admissible under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) as to a former employee's claim of negligent hiring and retention because the evidence tended to show that the dental center that hired the dentist should have known that the dentist posed a risk of committing the same type of harassing behavior against the former employee. Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (2008) (decided under former O.C.G.A. § 24-2-2).

Pastor testifying to truthfulness of parties.

- Trial court erred by admitting the testimony of a pastor regarding the reputation for truthfulness of a husband and a wife and that the pastor would believe the husband and the wife under oath because the claims of the husband and wife did not involve the general character of the parties pursuant to former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405); the error was not harmless because the jury's verdict was based in large part upon the jury's determinations regarding the parties' credibility. Barnett v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011) (decided under former O.C.G.A. § 24-2-2).

Criminal Cases

1. In General

Proper admission of similar transaction evidence requires the state to make three affirmative showings: (1) that the evidence is sought for a proper purpose; (2) that sufficient evidence exists to establish that the accused committed the similar transaction; and (3) that sufficient connection exists between the similar transaction and the crime charged so that proof of the former tends to prove the latter. Rice v. State, 217 Ga. App. 456, 458 S.E.2d 368 (1995) (decided under former O.C.G.A. § 24-2-2).

Test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents, rather, such evidence may be admitted if the evidence is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because the defendant is a man of criminal character; similarity is an important factor in determining the admissibility of the extrinsic crime, however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar. Parnell v. State, 260 Ga. App. 213, 581 S.E.2d 263 (2003) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in admitting similar transaction evidence because all of the crimes occurred in a relatively small area and reflected a similar modus operandi; the crimes were sufficiently similar to the crime against the victim. Alatise v. State, 291 Ga. 428, 728 S.E.2d 592 (2012) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in admitting similar transaction testimony that 15 years before, the defendant had bitten the witness's parent. The evidence was offered to show intent and course of conduct; in both the previous incident and the one for which the defendant was being tried, the defendant bit the party with whom the defendant was fighting, drew blood and inflicted visible injuries, used the tools at hand, and involved multiple other parties; and the trial court did not err in finding that the evidence was more probative than prejudicial despite its age. Dunham v. State, 315 Ga. App. 901, 729 S.E.2d 45 (2012) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion in admitting similar transaction evidence because the state introduced the evidence for the purpose of showing defendant's state of mind and course of conduct. Lewis v. State, 317 Ga. App. 218, 735 S.E.2d 1 (2012) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion in denying the defendant's motion to sever because the defendant failed to carry the burden of making a clear showing that the joint trial was prejudicial and a denial of due process as evidence of another crime committed by the co-defendant did not directly implicate the defendant and the trial court gave appropriate limiting instructions, indicating that the similar transaction evidence could be considered only as to the co-defendant. Brooks v. State, 332 Ga. App. 396, 772 S.E.2d 838 (2015), cert. denied, No. S15C1548, 2015 Ga. LEXIS 573 (Ga. 2015).

Trial court did not err in admitting evidence of a prior incident involving an attempted rape to show intent given the significant similarities in the crimes including evidence that in both cases the defendant went to a place intending to steal and at some point in the process used a deadly weapon to assault the victim and pulled down the victim's underwear but did not complete a rape. Kirby v. State, 304 Ga. 472, 819 S.E.2d 468 (2018).

By placing intent at issue by claiming at trial that the defendant's delusions completely negated criminal intent, the state needed evidence that the defendant acted with the intent to commit the crimes of murder and possession of a firearm; thus, the trial court did not abuse the court's discretion in admitting evidence of a prior New York crime since, as to both crimes, the defendant used a handgun to assault people that the defendant perceived had committed an offense against the defendant. Castillo-Velasquez v. State, 305 Ga. 644, 827 S.E.2d 257 (2019).

Trial court did not abuse the court's discretion in admitting the two prior acts of child molestation against the defendant especially given the strong presumption in favor of admissibility; the defendant's prior acts against two other women when they were young girls were relevant and probative regarding the defendant's intent and propensity to commit the charged crimes against the victim as there was no showing either on direct or cross-exam that the witnesses' memories were at issue. Sturgis v. State, Ga. App. , 842 S.E.2d 82 (2020).

Trial court did not abuse the court's discretion by allowing the admission of evidence regarding the defendant's prior drug possession arrest because the evidence of prior drug activity was highly probative of intent to sell a controlled substance for which the defendant was on trial and the prior act of drug possession happened while the defendant was driving a car in the same area where the sale of the methamphetamine during the first buy occurred. Moton v. State, 351 Ga. App. 789, 833 S.E.2d 171 (2019).

Section not applicable to intrinsic evidence.

- Nurse's testimony that the defendant told the nurse, when being admitted to the hospital, that the defendant had smoked marijuana earlier that day was not subject to an objection under O.C.G.A. § 24-4-404(b) because it was intrinsic evidence. Gibbs v. State, 340 Ga. App. 723, 798 S.E.2d 308 (2017), aff'd, 813 S.E.2d 393, 2018 Ga. LEXIS 200 (Ga. 2018).

Trial counsel was not ineffective for failing to object to the admission of the defendant's alleged prior bad acts because evidence that the defendant physically abused the babysitter could have explained why the babysitter did not report the defendant's child molestation to police; and the evidence involving the defendant's treatment of the babysitter was admissible as intrinsic evidence as that evidence pertained to the chain of events in the case and was linked by time and circumstances with the charged offenses because the statement of one of the children to the child's mother that the babysitter was going to call the police immediately led to the children's outcry to their mother; thus, the evidence was not barred by O.C.G.A. § 24-4-404. Espinosa v. State, 352 Ga. App. 698, 834 S.E.2d 558 (2019).

When the defendant was convicted of felony murder and aggravated assault in connection with the shooting death of the victim, the defendant's brother-in-law, the evidence regarding the prior incident in which the defendant hit and pushed the defendant's sister was admissible as intrinsic evidence because the evidence explained why the victim and the defendant's sister were persistent with their requests that the defendant leave, and why the victim followed the defendant outside of the home to ensure that the defendant left; and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Clark v. State, 306 Ga. 367, 829 S.E.2d 306 (2019), cert. denied, 2020 U.S. LEXIS 1059, 206 L. Ed. 2d 180 (U.S. 2020).

Degree of similarity that is required.

- When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity; all that is required is that the incidents are sufficiently similar such that proof of the earlier event helps prove an element of the later crime. Cain v. State, 268 Ga. App. 39, 601 S.E.2d 415 (2004) (decided under former O.C.G.A. § 24-2-2).

Unlike similar transactions, prior difficulties between the defendant and the victim are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus; hence, evidence of motive, even though not an essential element of a crime, had such great probative value that it outweighed the inherent prejudice of such evidence, even if it incidentally placed the defendant's character in issue. LeBlanc v. State, 283 Ga. App. 434, 641 S.E.2d 646 (2007) (decided under former O.C.G.A. § 24-2-2).

Unfair prejudice must substantially outweigh probative value to exclude evidence.

- After the state filed a notice of intent to present other acts evidence seeking to admit evidence of prior bad acts through the testimony of three witnesses, and the trial court denied the state's motion, the trial court did not apply the correct standard regarding the exclusion of relevant evidence when the court found only that the probative value of the other acts evidence was not outweighed by the danger of unfair prejudice and failed to analyze whether such prejudice substantially outweighed any probative value. State v. Jackson, 351 Ga. App. 675, 832 S.E.2d 654 (2019).

Admission of similar transaction evidence not plain error.

- Although the defendant might have been entitled to a ruling that the 2003 similar transaction evidence be excluded had the defendant made the appropriate motion, the trial court did not commit plain error by admitting the 2003 similar evidence because any error would not have met the second prong of the plain error analysis - that the legal error be clear and obvious - as the relevant issue of using a prior driving under the influence conviction in a current driving under the influence trial was not decided by court of appeals until two months after the defendant's trial. Nguyen v. State, 330 Ga. App. 812, 769 S.E.2d 558 (2015).

Any error was harmless.

- Any error in admitting evidence under O.C.G.A. § 24-4-404(b) was harmless because the state spent a minimal amount of time eliciting evidence concerning a prior incident and there was no contention that the state mentioned or relied upon the incident during the state's closing argument to the jury. Taylor v. State, 306 Ga. 277, 830 S.E.2d 90 (2019).

Evidence of gang activity.

- Sufficient evidence, including expert testimony, supported the appellants' convictions because the evidence established that the appellants were associated with a criminal street gang and that the armed robbery and aggravated assault the appellants engaged in constituted criminal street gang activity and were intended to further the interests of the gang. Lupoe v. State, 300 Ga. 233, 794 S.E.2d 67 (2016).

Trial court did not abuse the court's discretion by admitting evidence of the defendant's alleged membership in a gang because the evidence of gang membership was relevant to and probative of motive based on two witnesses testifying as to the defendant's gang affiliation. Anglin v. State, 302 Ga. 333, 806 S.E.2d 573 (2017).

Harmless error as to victim's gang membership.

- Trial court was not required to exclude the evidence of the victim's motorcycle gang membership as any error was harmless since the appellant admitted to shooting the victim, who was a stranger to the appellant at that moment in time and the evidence also showed that the victim was unarmed; thus, it was highly probable that the admission of the victim's alleged gang affiliation would not have contributed to the jury's verdict on the murder charge. Kilpatrick v. State, Ga. , 839 S.E.2d 551 (2020).

Because the evidence regarding the defendant's gang affiliation was intrinsic to the crimes charged, completing the story and explaining the defendant's authority within the gang, association with the shooters, and role in the crimes, the trial court did not err in admitting that evidence. Fleming v. State, 306 Ga. 240, 830 S.E.2d 129 (2019).

Trial court did not err in denying the defendant's motion for a mistrial after the state introduced into evidence images obtained from the defendant's page on a social media website because that evidence was not improper character evidence; rather, the evidence showed the defendant's association with a gang and was, therefore, vital to the state's case regarding the Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., allegations and also relevant to show the defendant's motive for the murder of a rival gang member. Jackson v. State, 306 Ga. 706, 832 S.E.2d 809 (2019).

Database match of DNA profile admissible.

- Testimony concerning a CODIS database match of the defendant's DNA profile was relevant and admissible because the DNA evidence did not, in and of itself, constitute impermissible character evidence since no reference was made as to why the matching sample was collected or stored and no reference was made linking the defendant's DNA profile to other criminal activity. Scales v. State, 310 Ga. App. 48, 712 S.E.2d 555 (2011) (decided under former O.C.G.A. § 24-2-2).

Evidence of another individual's crimes, not defendant's other crimes.

- Trial court did not err in denying the defendant's motion for a mistrial when the investigator provided some context to a discussion thread on the defendant's page on a social media website because the investigator clarified that the victim, not the defendant, was the primary suspect in the December 2014 shooting; and the investigator's testimony regarding the December 2014 shooting was not evidence of the defendant's other crimes. Jackson v. State, 306 Ga. 706, 832 S.E.2d 809 (2019).

Evidence of other crime not generally admissible.

- Testimony as to a crime other than that for which the defendant is being tried is not ordinarily admissible. Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935) (decided under former Code 1933, § 38-202); Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947); Wiggins v. State, 80 Ga. App. 258, 55 S.E.2d 842 (1949) (decided under former Code 1933, § 38-202); Mims v. State, 207 Ga. 118, 60 S.E.2d 373 (1950); Kelley v. State, 98 Ga. App. 324, 105 S.E.2d 798 (1958) (decided under former Code 1933, § 38-202); Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968); Dawson v. State, 120 Ga. App. 242, 170 S.E.2d 45 (1969) (decided under former Code 1933, § 38-202); Nooner v. State, 131 Ga. App. 563, 206 S.E.2d 660 (1974); Perry v. State, 154 Ga. App. 559, 269 S.E.2d 63 (1980), overruled on other grounds, Joiner v. State, 231 Ga. App. 61, 497 S.E.2d 642 (1998) (decided under former Code 1933, § 38-202); State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

Testimony that a defendant engaged in other criminal transactions is prejudicial to the defendant in the case for which the defendant is on trial, not because it has no probative value but because it has too much, as tending to indicate that defendant is of a criminal bent of mind and therefore more likely than the average citizen to have committed the act of which defendant is accused. Cardell v. State, 119 Ga. App. 848, 168 S.E.2d 889 (1969) (decided under former Code 1933, § 38-202).

General rule is that in a criminal trial evidence which in any manner shows or tends to show that the accused has committed other criminal acts is irrelevant and inadmissible as that evidence tends to place the accused's character into evidence. Perry v. State, 158 Ga. App. 349, 280 S.E.2d 390 (1981) (decided under former Code 1933, § 38-202); Bankston v. State, 159 Ga. App. 342, 283 S.E.2d 319 (1981); 454 U.S. 1154, 102 S. Ct. 1026, 71 L. Ed. 2d 311 (1982), cert. denied,(decided under former Code 1933, § 38-202).

Proof of other crimes is never admissible (except in cases when the defendant has personally put the defendant's character in issue) where its chief or only probative value consists in showing that the defendant is, by reason of the defendant's bad character, more likely to have committed the crime than the defendant otherwise would have been. To admit such evidence, it must have relevancy and probative value from some other point of view. Jones v. State, 159 Ga. App. 634, 284 S.E.2d 651 (1981) (decided under former Code 1933, § 38-202).

Trial court did not abuse the court's discretion in admitting evidence of prior and subsequent bad acts because the defendant's prior and subsequent physical abuse of the victim was relevant to showing the type of relationship that existed between them, as well as the defendant's motive, intent, and bent of mind in committing the charged offenses. Futch v. State, 316 Ga. App. 376, 730 S.E.2d 14 (2012) (decided under former O.C.G.A. § 24-2-2).

Admission of other crimes, wrongs, or acts did not constitute plain error.

- Trial court did not commit plain error in admitting evidence that the defendant had, in the weeks leading up to the burglary, followed the victim's 15-year-old sister because the victim's mother personally saw the defendant fleeing the victim's home; the victim's father identified the defendant as the man in the photographs taken by the victim as the defendant prowled around their house before breaking in; the victim identified the defendant to police and at trial as the man who broke into the home and attempted to grab the victim; and there was blood strewn throughout the home and the defendant was observed by several witnesses to be bleeding from cuts on the defendant's arm consistent with those made by glass. Perez v. State, 331 Ga. App. 164, 770 S.E.2d 260 (2015), cert. denied, 2015 Ga. LEXIS 389 (Ga. 2015).

In an armed robbery case, pretermitting whether admission of evidence of the defendant's prior armed robbery conviction amounted to clear or obvious error, the admission of that evidence did not constitute plain error that affected the defendant's substantial rights because the defendant testified and admitted that the defendant pled guilty to the prior charge; although the defendant claimed the defendant acted in self-defense, eyewitnesses testified that they saw no weapons on the victims, saw the defendant rifling the victims' pockets, and heard one of the victims pleading with the defendant not to kill the victim; and the evidence indicated that both victims were shot from behind, undermining the defendant's claim of self-defense. Nations v. State, 303 Ga. 221, 811 S.E.2d 292 (2018).

First defendant could not show plain error in the admission of the second defendant's prior conviction for burglary and possession of tools of a crime as the trial court gave a limiting instruction that the evidence was relevant only to the charges against the second defendant; and the fact that the conviction had been overturned did not preclude the conviction's admission. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, 2019 Ga. LEXIS 890 (Ga. 2019).

Exceptions to prohibition of evidence of other crimes.

- When the extraneous crime forms part of the res gestae, or is one of a system of mutually dependent crimes, or is evidence of guilty knowledge, or may bear upon the question of the identity of the accused or articles connected with the offense, or is evidence of prior attempts by the accused to commit the same offense upon the victim as that for which the defendant stands charged, or when the proof of the extraneous crime tends to prove malice, intent, motive, or the like, then its admission as evidence may be proper. Cawthon v. State, 119 Ga. 395, 46 S.E. 897 (1904) (decided under former Penal Code 1895, § 993); Wilson v. State, 173 Ga. 275, 160 S.E. 319 (1931); Williams v. State, 51 Ga. App. 319, 180 S.E. 369 (1935) (decided under former Penal Code 1910, § 1019);(decided under former Code 1933, § 38-202).

When evidence of other criminal transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime or the identity of the perpetrator thereof, such evidence is admissible as an exception to the general rule which makes evidence of other criminal transactions inadmissible under most circumstances. Richards v. State, 157 Ga. App. 601, 278 S.E.2d 63 (1981) (decided under former Code 1933, § 38-202).

Evidence of another crime is admissible when it is part of a course of criminal conduct if it is a part of the res gestae. Whitfield v. State, 159 Ga. App. 398, 283 S.E.2d 627 (1981) (decided under former Code 1933, § 38-202).

Independent crimes are admissible to show motive, intent, plan, identity, bent of mind, or course of conduct. In order for these independent acts to be admissible it must be shown that the defendant was the perpetrator of the independent crime and that there is sufficient similarity of the former independent crime that it tends to prove the latter crime. Weathersby v. State, 262 Ga. 126, 414 S.E.2d 200 (1992) (decided under former O.C.G.A. § 24-2-2).

Evidence of prior overturned conviction admissible.

- Since the second defendant's prior conviction for burglary and possession of tools of a crime was overturned because the trial court should have suppressed the evidence obtained from a GPS device and, without that evidence, there was not enough evidence to support the second defendant's conviction, evidence of the second defendant's prior conviction was admissible in the current case to show intent, knowledge, or absence of mistake as the finding in the prior case did not implicate or call into question the second defendant's intent, absence of mistake, or knowledge of the underlying crimes. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, 2019 Ga. LEXIS 890 (Ga. 2019).

Explanation of why officer investigated defendant.

- Because evidence of defendant's prior crimes was relevant to explain why a police officer investigated defendant, the trial court did not err in admitting the evidence. Smith v. State, 274 Ga. App. 852, 619 S.E.2d 358 (2005) (decided under former O.C.G.A. § 24-2-2).

Admission of sheriff's statements regarding run-ins with law.

- Even if the mention by sheriff's deputies of the defendant's previous run-ins with the law had impermissibly placed the defendant's character at issue during the trial, any such error would have been harmless due to the overwhelming evidence of the defendant's guilt. Furthermore, none of the trial testimony at issue remotely suggested that the defendant had ever been convicted of a past crime. Moore v. State, 310 Ga. App. 106, 712 S.E.2d 126 (2011) (decided under former O.C.G.A. § 24-2-2).

Admission of testimony from special agent.

- Any error in admitting the testimony of a Georgia Bureau of Investigation special agent regarding the circumstances of a 2008 stabbing incident involving the defendant was harmless as the evidence pointed directly to an intentional and malicious killing committed by the defendant rather than one that was committed in self-defense because the defendant did not deny initiating the attack against the victim, another inmate; the defendant did not know if the victim was armed when the defendant decided to attack the victim; and five correctional officers testified that the defendant and the co-defendant were the aggressors, and that the pair cornered the unarmed victim before stabbing the victim a total of 17 times. Rodrigues v. State, 306 Ga. 867, 834 S.E.2d 59 (2019).

Admission of evidence of defendant's prior misdemeanor convictions was harmless error.

- Trial court did not commit reversible error when the court: (1) granted the state's motion in limine prohibiting admission of evidence that another person confessed to the crime; (2) permitted a police officer to explain the officer's conduct under former O.C.G.A. § 24-3-2; and (3) allowed the state to introduce evidence of defendant's prior misdemeanor convictions under former O.C.G.A. §§ 24-2-2 and24-9-20(b) (see now O.C.G.A. §§ 24-4-404,24-4-405, and24-5-506); thus, defendant failed to show that counsel's trial strategies on these issues constituted ineffective assistance of counsel. Harris v. State, 279 Ga. 522, 615 S.E.2d 532 (2005) (decided under former O.C.G.A. § 24-2-2).

Testimony as to circumstances connected with the accused's arrest is admissible even though the testimony incidentally shows the commission of another crime. Humphries v. State, 154 Ga. App. 596, 269 S.E.2d 90 (1980) (decided under former Code 1933, § 38-202); Cleveland v. State, 155 Ga. App. 267, 270 S.E.2d 687 (1980); Woodard v. State, 155 Ga. App. 533, 271 S.E.2d 671 (1980) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

When evidence is relevant for the purpose of showing the circumstances of the arrest, the evidence will not be excluded because the evidence incidentally shows the commission of another crime. Bryan v. State, 157 Ga. App. 635, 278 S.E.2d 177 (1981) (decided under former Code 1933, § 38-202).

Proof of other crime required.

- In order to justify the admission of evidence relating to an independent crime committed by the accused, it is absolutely essential that there should be evidence establishing the fact that the independent crime was committed by the accused, and satisfactorily connecting that crime with the offense for which the accused is indicted. Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940) (decided under former Code 1933, § 38-202); Johnson v. State, 152 Ga. App. 624, 263 S.E.2d 509 (1979); Albert v. State, 152 Ga. App. 708, 263 S.E.2d 685 (1979) (decided under former Code 1933, § 38-202); Sweeny v. State, 152 Ga. App. 765, 264 S.E.2d 260 (1979); Rhodes v. State, 153 Ga. App. 306, 265 S.E.2d 110 (1980) (decided under former Code 1933, § 38-202); Smith v. State, 154 Ga. App. 497, 268 S.E.2d 714 (1980); Haygood v. State, 154 Ga. App. 633, 269 S.E.2d 480 (1980) (decided under former Code 1933, § 38-202); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980); Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980) (decided under former Code 1933, § 38-202); State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

Jury is to receive evidence of the commission of previous crimes only for the purposes specified, and not for the purpose of determining by this alone the guilt of the accused. Fitzgerald v. State, 52 Ga. App. 33, 182 S.E. 77 (1935) (decided under former Code 1933, § 38-202).

Evidence of the commission of independent crimes by the accused may be admitted even when the defendant is acquitted of the other offense. Albert v. State, 152 Ga. App. 708, 263 S.E.2d 685 (1979), conviction reversed, Albert v. Montgomery, 732 F.2d 865 (11th Cir. 1984) (holding that the principle of collateral estoppel prevents the introduction for any purpose of evidence of crime of which a defendant has been acquitted) (decided under former Code 1933, § 38-202).

Although the modification of a defendant's first offender status by the Georgia Crime Information Center was authorized by O.C.G.A. § 42-8-65, it was not a conviction because only the trial court that imposed first offender probation was authorized to revoke that status. Thus, as the defendant was not shown to have been adjudicated guilty of the prior crimes, the state improperly impeached the defendant with evidence of the defendant's first offender record. Lee v. State, 294 Ga. App. 796, 670 S.E.2d 488 (2008) (decided under former O.C.G.A. § 24-2-2).

Criminal confession is not rendered inadmissible because the language used therein indicates that the accused had committed another and separate offense. Dampier v. State, 245 Ga. 882, 268 S.E.2d 349, cert. denied, 449 U.S. 938, 101 S. Ct. 337, 66 L. Ed. 2d 161 (1980) (decided under former Code 1933, § 38-202).

Use of form to pose prohibited question.

- It is error requiring the grant of a new trial for the state to put the plaintiff's character in issue by using a form completed by the plaintiff to ask a question which would otherwise be prohibited, and then introducing into the evidence the defendant's entire past criminal record to impeach the answer to that question. Mikle v. State, 236 Ga. 748, 225 S.E.2d 275 (1976) (decided under former Code 1933, § 38-202).

Res gestae.

- Generally, on a prosecution for a particular crime, evidence of another and distinct crime wholly independent from that for which one is on trial is inadmissible; but there are exceptions to this rule: one is, if the separate crime was committed as a part of the same transaction as that for which the accused is being tried, and forms a part of the res gestae. Bailey v. State, 214 Ga. 409, 105 S.E.2d 320 (1958) (abandonment) (decided under former Code 1933, § 38-202); Williams v. State, 223 Ga. 773, 158 S.E.2d 373 (1967) (rape) (decided under former Code 1933, § 38-202); Blanton v. State, 150 Ga. App. 559, 258 S.E.2d 174 (1979) (prostitution) (decided under former Code 1933, § 38-202); Mosley v. State, 150 Ga. App. 802, 258 S.E.2d 608 (1979) (armed robbery) (decided under former Code 1933, § 38-202); Bradley v. State, 154 Ga. App. 333, 268 S.E.2d 388 (1980) (burglary) (decided under former Code 1933, § 38-202); Hayes v. State, 199 Ga. 251, 34 S.E.2d 97 (1945) (robbery) (decided under former Code 1933, § 38-202); Durham v. State, 243 Ga. 408, 254 S.E.2d 359 (1979) (rape and murder) (decided under former Code 1933, § 38-202); Deshazier v. State, 155 Ga. App. 526, 271 S.E.2d 664 (1980) (vehicular homicide) (decided under former Code 1933, § 38-202).

When transactions involving other crimes and the alleged bad character of the defendant are so connected in time and event as to be part of the same transaction as that for which defendant is being tried, those transaction are admissible as a clear exception to the general rule of inadmissibility of other transactions. Kennedy v. State, 193 Ga. App. 784, 389 S.E.2d 350 (1989) (decided under former O.C.G.A. § 24-2-2).

Since the defendant produced a prison identification card voluntarily, and volunteered information about a prior conviction when a police officer asked if the defendant had a driver's license, the evidence was admissible as part of the res gestae despite its prejudicial nature. Bertholf v. State, 298 Ga. App. 612, 680 S.E.2d 652 (2009) (decided under former O.C.G.A. § 24-2-2).

Connection between crimes in mind of actor.

- To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose the actor intended to accomplish; or it must be necessary to identify the person of the actor, by a connection which shows that the actor who committed the one must have done the other. Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935) (decided under former Code 1933, § 38-202); Andrews v. State, 196 Ga. 84, 26 S.E.2d 263; 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468 (1943), cert. denied, Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955), overruled on other grounds, Kelley v. State, 98 Ga. App. 324, 105 S.E.2d 798 (1958) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

Trial court properly admitted evidence of entering a child's bedroom during a party at another home shortly before the home invasion at the Millstone Manor residence because such evidence was relevant to establish intent as the record showed that intent was a material issue in the case and entering the bedroom in the prior home involved the same mental state as the appellant allegedly had entering the girls' bedroom at the Millstone Manor residence. Cordova v. State, 351 Ga. App. 652, 832 S.E.2d 465 (2019).

Logical connection between crimes.

- When one is on trial charged with the commission of a crime, proof of a distinct and independent offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. Wilson v. State, 173 Ga. 275, 160 S.E. 319 (1931) (decided under former Penal Code 1910, § 1019); Scott v. State, 46 Ga. App. 213, 167 S.E. 210 (1932); McMichen v. State, 62 Ga. App. 50, 7 S.E.2d 749 (1940) (decided under former Penal Code 1910, § 1019); Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940); Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947) (decided under former Code 1933, § 38-202); Fowler v. State, 82 Ga. App. 197, 60 S.E.2d 473 (1950); Gilstrap v. State, 90 Ga. App. 12, 81 S.E.2d 872 (1954) (decided under former Code 1933, § 38-202); Spinks v. State, 92 Ga. App. 878, 90 S.E.2d 590 (1955); Bailey v. State, 214 Ga. 409, 105 S.E.2d 320 (1958) (decided under former Code 1933, § 38-202); Cardell v. State, 119 Ga. App. 848, 168 S.E.2d 889 (1969); Nicholson v. State, 125 Ga. App. 24, 186 S.E.2d 287 (1971) (decided under former Code 1933, § 38-202); Wooten v. State, 125 Ga. App. 635, 188 S.E.2d 409 (1972); Lee v. State, 154 Ga. App. 562, 269 S.E.2d 65 (1980) (decided under former Code 1933, § 38-202); Haygood v. State, 154 Ga. App. 633, 269 S.E.2d 480 (1980); Carroll v. State, 155 Ga. App. 514, 271 S.E.2d 650 (1980) (decided under former Code 1933, § 38-202); Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980); State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980) (decided under former Code 1933, § 38-202); Paxton v. State, 160 Ga. App. 19, 285 S.E.2d 741 (1981);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

Evidence of the commission of one crime is not admissible upon the trial of the defendant for another crime, when the sole purpose is to show that the defendant is guilty of such other crime. Honea v. State, 181 Ga. 40, 181 S.E. 416 (1935) (decided under former Code 1933, § 38-202); Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (decided under former Code 1933, § 38-202); Harrison v. State, 60 Ga. App. 610, 4 S.E.2d 602 (1939);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

If the evidence be so dubious that the judge does not clearly perceive the connection between the crime with which the defendant is charged and another offense, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt. Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940) (decided under former Code 1933, § 38-202).

Mere fact that the defendant has recently committed a crime of the same sort as that for which defendant is on trial establishes no probative connection between the two crimes. Cardell v. State, 119 Ga. App. 848, 168 S.E.2d 889 (1969) (decided under former Code 1933, § 38-202).

Only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried, and crimes which are not similar or which are not logically connected to the crime for which defendant is being tried should be excluded from evidence; proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged. Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981) (decided under former Code 1933, § 38-202).

There are exceptions to the "other crimes" rule when there is sufficient logical connection between the independent crime and the offense charged so that it can be said that proof of the former tends to prove the latter. Perry v. State, 158 Ga. App. 349, 280 S.E.2d 390 (1981) (decided under former Code 1933, § 38-202); Kilgore v. State, 176 Ga. App. 121, 335 S.E.2d 465 (1985);(decided under former O.C.G.A. § 24-2-2).

Logical connection between crimes.

- Trial court properly admitted certain statements made by the defendant during telephone conversations while in custody at a jail because while the statements related to a prior wrong or act which would generally be irrelevant character evidence, the statements indicated the defendant's disdain for law enforcement intervention and a desire to seek revenge; thus, these statements were relevant to show motive and intent in committing the crimes. Summerlin v. State, 339 Ga. App. 148, 793 S.E.2d 477 (2016).

Evidence that defendant possessed cocaine with intent to distribute.

- Defendant's prior criminal conviction for possession of cocaine with intent to distribute was properly admitted because the defendant's current and prior crimes for possession of cocaine with intent to distribute were identical, and the intent required to prove the crimes was necessarily the same; the evidence of the prior crime was highly relevant to the issue of the defendant's unlawful possession of cocaine with the intent to distribute or sell the drugs; the evidence was important to the state's case, thereby enhancing its probative value; and any prejudice resulting from the admission of the prior conviction was mitigated by the limiting instruction the trial court gave when the evidence was introduced and in its final charge to the jury. Burgess v. State, 349 Ga. App. 635, 824 S.E.2d 99 (2019).

Exclusion of extrinsic evidence.

- Trial court did not abuse the court's discretion by excluding the extrinsic evidence of the defendant's other acts for the purposes of showing intent, motive, and knowledge because, while some of the extrinsic acts were relevant in the technical sense, the state's need to have more evidence to prove motive, intent, and knowledge was very low because those issues were obvious to a fact finder after the identity of the perpetrator, which was at issue, was determined. State v. Watson, 354 Ga. App. 263, 840 S.E.2d 641 (2020).

Identity, motive, malice, intent, plan, scheme, bent of mind, and course of conduct.

- While it is the general rule that upon the trial of a person for a criminal offense, other and distinct criminal transactions cannot be given in evidence against the defendant, yet, according to the weight of authority, evidence of other transaction may be received as tending to show motive or intent, when the transactions are so connected in time and similar in their other relations that the same motive may reasonably be imputed to all. Bates v. State, 18 Ga. App. 718, 90 S.E. 481 (1916) (decided under former Penal Code 1910, § 1019); Hales v. State, 250 Ga. 112, 296 S.E.2d 577 (1982);(decided under former O.C.G.A. § 24-2-2).

Proof of another offense is admissible on the trial of a defendant charged with the commission of a crime even though such evidence incidentally places the defendant's character in issue, when evidence of such other crime tends to show identity, motive, malice, intent, plan, scheme, bent of mind, or course of conduct. Wilson v. State, 173 Ga. 275, 160 S.E. 319 (1931) (decided under former Penal Code 1910, § 1019); Scott v. State, 46 Ga. App. 213, 167 S.E. 210 (1932); Phillips v. State, 51 Ga. App. 675, 181 S.E. 233 (1935) (decided under former Penal Code 1910, § 1019); Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935); Fitzgerald v. State, 52 Ga. App. 33, 182 S.E. 77 (1935) (decided under former Code 1933, § 38-202); Gray v. State, 52 Ga. App. 209, 182 S.E. 862 (1935); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (decided under former Code 1933, § 38-202); Bennings v. State, 53 Ga. App. 218, 185 S.E. 370 (1936); Wright v. State, 184 Ga. 62, 190 S.E. 663 (1937) (decided under former Code 1933, § 38-202); Hunter v. State, 188 Ga. 215, 3 S.E.2d 729 (1939); McMichen v. State, 62 Ga. App. 50, 7 S.E.2d 749 (1940) (decided under former Code 1933, § 38-202); Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940); Mills v. State, 71 Ga. App. 353, 30 S.E.2d 824 (1944) (decided under former Code 1933, § 38-202); Bell v. State, 71 Ga. App. 430, 31 S.E.2d 109 (1944); Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947) (decided under former Code 1933, § 38-202); Anderson v. State, 206 Ga. 527, 57 S.E.2d 563 (1950); Mims v. State, 207 Ga. 118, 60 S.E.2d 373 (1950) (decided under former Code 1933, § 38-202); Fowler v. State, 82 Ga. App. 197, 60 S.E.2d 473 (1950); Crawford v. State, 211 Ga. 166, 84 S.E.2d 354 (1954) (decided under former Code 1933, § 38-202); Lyles v. State, 215 Ga. 229, 109 S.E.2d 785 (1959); Hargett v. State, 121 Ga. App. 157, 173 S.E.2d 266 (1970) (decided under former Code 1933, § 38-202); Nicholson v. State, 125 Ga. App. 24, 186 S.E.2d 287 (1971); McNeal v. State, 228 Ga. 633, 187 S.E.2d 271 (1972) (decided under former Code 1933, § 38-202); Overton v. State, 230 Ga. 830, 199 S.E.2d 205 (1973); Bloodworth v. State, 233 Ga. 589, 212 S.E.2d 774 (1975) (decided under former Code 1933, § 38-202); Davis v. State, 233 Ga. 638, 212 S.E.2d 814 (1975); Lofton v. State, 137 Ga. App. 323, 223 S.E.2d 727 (decided under former Code 1933, § 38-202); 237 Ga. 275, 227 S.E.2d 327 (1976); Lloyd v. State, 139 Ga. App. 625, 229 S.E.2d 106 (1976) (decided under former Code 1933, § 38-202); Moss v. State, 144 Ga. App. 226, 240 S.E.2d 773 (1977); Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979) (decided under former Code 1933, § 38-202); Simmons v. State, 152 Ga. App. 643, 263 S.E.2d 522 (1979); McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980), cert. denied, 449 U.S. 891, 101 S. Ct. 253, 66 L. Ed. 2d 119 (1980) (decided under former Code 1933, § 38-202); Buffington v. State, 153 Ga. App. 54, 264 S.E.2d 543 (1980); Laws v. State, 153 Ga. App. 166, 264 S.E.2d 700 (1980) (decided under former Code 1933, § 38-202); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980); Pittman v. State, 245 Ga. 453, 265 S.E.2d 592 (1980) (decided under former Code 1933, § 38-202); Smith v. State, 154 Ga. App. 497, 268 S.E.2d 714 (1980); Chambers v. State, 154 Ga. App. 620, 269 S.E.2d 42 (1980) (decided under former Code 1933, § 38-202); Lee v. State, 154 Ga. App. 562, 269 S.E.2d 65 (1980); Felts v. State, 154 Ga. App. 571, 269 S.E.2d 73 (1980) (decided under former Code 1933, § 38-202); Humphries v. State, 154 Ga. App. 596, 269 S.E.2d 90 (1980); Cleveland v. State, 155 Ga. App. 267, 270 S.E.2d 687 (1980) (decided under former Code 1933, § 38-202); Plemons v. State, 155 Ga. App. 447, 270 S.E.2d 836 (1980); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980) (decided under former Code 1933, § 38-202); Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980); State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980) (decided under former Code 1933, § 38-202); Wallace v. State, 246 Ga. 738, 273 S.E.2d 143 (1980); Kendrick v. State, 156 Ga. App. 27, 274 S.E.2d 78 (1980) (decided under former Code 1933, § 38-202); Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981); Ballweg v. State, 158 Ga. App. 576, 281 S.E.2d 319 (1981) (decided under former Code 1933, § 38-202); Neal v. State, 159 Ga. App. 450, 283 S.E.2d 671 (1981); Hale v. State, 159 Ga. App. 563, 284 S.E.2d 68 (1981), aff'd,(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

Evidence of other crimes to prove malice, intent, and motive is admissible only when the act of which the accused stands charged would be legal in the absence of those elements. Thomas v. State, 239 Ga. 734, 238 S.E.2d 888 (1977) (decided under former Code 1933, § 38-202).

Evidence of independent crimes will not be admitted unless its relevance to the issues at trial outweighs its prejudicial impact. Tuzman v. State, 145 Ga. App. 761, 244 S.E.2d 882 (1978) (decided under former Code 1933, § 38-202).

Fact that defendant was not arrested and charged with the commission of the independent crimes does not render evidence of the commission of such crimes inadmissible for showing common motive, plan, or scheme. Woodard v. State, 155 Ga. App. 533, 271 S.E.2d 671 (1980) (decided under former Code 1933, § 38-202).

When evidence of other crimes is admitted for the limited purpose of showing identity, plan, motive, scheme, bent of mind, or course of conduct, the other crimes need not be listed in the indictment as defendant is not on trial for those crimes. State v. Johnson, 246 Ga. 654, 272 S.E.2d 321 (1980) (decided under former Code 1933, § 38-202).

When a prior victim testified as to the similarities between the prior victim's encounter with defendant and the victim's, the prior victim's evidence was properly admitted pursuant to Ga. Unif. Super. Ct. R. 31.3(B) to show defendant's bent of mind, intent, and course of conduct; any inconsistencies in the prior victim's testimony affected only the weight and credibility. Williams v. State, 264 Ga. App. 115, 589 S.E.2d 676 (2003) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in finding that similar transaction evidence was relevant and admissible because some of the offenses committed during the coconspirators' crime spree were very similar to the crimes for which the defendant was indicted and, therefore, were relevant and admissible to demonstrate the co-conspirators' modus operandi, identity, bent of mind, and motive; even if some of the separate offenses were insufficiently similar to the indicted offenses, the evidence showed that each of the offenses was an essential part of a continuing criminal enterprise in which the defendant and the coconspirators acted in concert and with a common purpose. Walker v. State, 310 Ga. App. 223, 713 S.E.2d 413 (2011) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in admitting evidence of the similar transaction involving an attack by the defendant on an inmate because the state introduced the evidence of the attack on the inmate for the purpose of showing the defendant's course of conduct and bent of mind, which was a legitimate and proper purpose. Johnson v. State, 292 Ga. 22, 733 S.E.2d 736 (2012) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in admitting evidence of the defendant's prior convictions after determining that the convictions were relevant to show intent, knowledge, plan, and motive. Morris v. State, 340 Ga. App. 295, 797 S.E.2d 207 (2017).

Defendant's prior conviction for theft was properly admitted as the conviction was being offered to show motive and, thus, the state was not required to show an overall similarity between the prior offense and the violation of the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Whaley v. State, 343 Ga. App. 701, 808 S.E.2d 88 (2017).

Introduction of certified copy of indictment proper.

- In proving a prior offense for the purpose of proving identity, bent of mind, course of conduct, etc., it is proper to introduce a certified copy of the indictment and the plea or verdict of guilty. Scott v. State, 162 Ga. App. 541, 292 S.E.2d 125 (1982) (decided under former O.C.G.A. § 24-2-2).

Standard for admitting evidence of prior crimes is well-settled: the state must show that: (1) it is introducing evidence of an independent offense or act for an appropriate purpose; (2) there is sufficient evidence to establish that an accused committed the independent offense or act; and (3) there is sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Cain v. State, 268 Ga. App. 39, 601 S.E.2d 415 (2004) (decided under former O.C.G.A. § 24-2-2).

Implicit finding that probative value not outweighed by prejudicial effect.

- Notwithstanding the defendant's waiver of the enumeration of error that the trial court erred by admitting the prior bad acts without undertaking the balancing test, it presented no basis for reversal because the appellate court's review of the record showed that, although the trial court did not make specific findings regarding whether the probative value of the prior crimes was outweighed by its prejudicial impact, the court explicitly referenced the balancing test and noted that the evidence had to satisfy the balancing test rule; thus, by admitting the evidence, the trial court implicitly found that the evidence was admissible pursuant to the balancing test rule. Entwisle v. State, 340 Ga. App. 122, 796 S.E.2d 743 (2017).

Similar transaction evidence admissible.

- Similar transaction evidence was properly admitted to show defendant's state of mind, knowledge, or intent because, in both crimes, defendant worked with an accomplice to force the victims to cooperate by threatening to shoot the victims, and both crimes were committed in a brazen manner during the daytime without any attempt to hide defendant's identity. Pace v. State, 272 Ga. App. 16, 611 S.E.2d 694 (2005) (decided under former O.C.G.A. § 24-2-2).

In a theft by taking case, because intent was put in issue by the defendant, evidence of the other acts that two witnesses paid the defendant money but never received completed cabinets nor a refund of their money was relevant and admissible under O.C.G.A. § 24-4-404(b); furthermore, the probative value of the similar acts was not outweighed by their prejudicial effect pursuant to O.C.G.A. § 24-4-403. Graham v. State, 337 Ga. App. 664, 788 S.E.2d 555 (2016).

Trial court did not abuse the court's discretion in allowing evidence of an argument with a former wife over the defendant's treatment of the victim on the afternoon before the murder as the defendant's behavior a few hours before inflicting the victim's fatal injuries plainly pertained to the chain of events in the case and was linked by time and circumstance with the charged crimes, making the information necessary to complete the story for the jury. Keller v. State, Ga. , 842 S.E.2d 22 (2020).

Trial counsel was not ineffective because counsel did object to evidence that, just two weeks before the current incident, the appellant had been involved in a different high-speed chase; and the appellant did not articulate what argument, if any, trial counsel should have made with respect to the evidence of the other acts. Even if trial counsel did perform deficiently in failing to object, the evidence against the appellant was strong and, thus, the appellant did not show that the other-acts evidence prejudiced the appellant such that the outcome of the appellant's trial would have been different if trial counsel had made a successful objection. Calhoun v. State, Ga. , 839 S.E.2d 612 (2020).

Scheme defined.

- Plan, scheme, device, design, etc., means a peculiar or distinctive method of committing a crime which, if employed at another time by an accused, would tend to show the accused was the one who employed it this time. Nicholson v. State, 125 Ga. App. 24, 186 S.E.2d 287 (1971) (decided under former Code 1933, § 38-202); Hammitt v. State, 183 Ga. App. 382, 359 S.E.2d 4; 183 Ga. App. 906, 359 S.E.2d 4 (1987), cert. denied,(decided under former O.C.G.A. § 24-2-2).

Impeachment of defendant's specific testimony by contradictory evidence.

- District attorney's reference to an indictment was an inappropriate means of impeaching, by contradictory evidence, defendant's statement that defendant had never hurt anyone. Williams v. State, 257 Ga. 761, 363 S.E.2d 535 (1988) (decided under former O.C.G.A. § 24-2-2).

In order for evidence of independent crime to be admissible as a circumstance of an arrest, it must be relevant to the circumstances of the arrest, which circumstances must, in turn, be relevant to the crime for which the defendant is on trial. Bryan v. State, 157 Ga. App. 635, 278 S.E.2d 177 (1981) (decided under former Code 1933, § 38-202).

Conduct of defendant before, during the time of, and after commission of a crime may be considered by the jury in establishing defendant's intention and defendant's participation in order to determine whether or not such intention and conduct were sufficient corroboration of the testimony of an accomplice to sustain a conviction. This may be done by circumstantial as well as by direct evidence. Zuber v. State, 248 Ga. 314, 282 S.E.2d 900 (1981) (decided under former Code 1933, § 38-202).

Conduct by family members.

- Trial court did not abuse the court's discretion in curtailing defendant's cross-examination of the victim as to the victim's spouse's criminal activities since defendant argued that the victim might have been a participant in the criminal conduct and that, therefore, the victim's credibility would have to be tested against the victim's criminal conduct. Bell v. State, 265 Ga. App. 407, 593 S.E.2d 935 (2004) (decided under former O.C.G.A. § 24-2-2).

Admission of family violence conviction.

- Trial court's admission of evidence of the defendant's prior conviction for family violence battery was not erroneous because the evidence was relevant to show motive, specifically that the defendant used violence to assert control when the defendant's authority was questioned. Chambers v. State, 351 Ga. App. 771, 833 S.E.2d 155 (2019).

Continuous course of conduct.

- In a criminal prosecution, evidence of another crime is admissible when both crimes are part of a continuous course of conduct, closely connected in time, place, and manner of commission. Putman v. State, 251 Ga. 605, 308 S.E.2d 145 (1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984) (decided under former O.C.G.A. § 24-2-2).

Past physical and verbal abuse admissible.

- Evidence of the defendant's past physical and verbal abuse of the victim was admissible as proof of the relationship between the defendant and the victim and to show the defendant's motive and intent. Faircloth v. State, 293 Ga. 134, 744 S.E.2d 52 (2013).

Two conditions imposed on admission of evidence of independent crimes.

- Before evidence of independent crimes is admissible two conditions must be satisfied: first, there must be evidence that the defendant was in fact the perpetrator of the independent crime; second, there must be sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter. Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981) (decided under former Code 1933, § 38-202); Paxton v. State, 160 Ga. App. 19, 285 S.E.2d 741 (1981); Milner v. State, 180 Ga. App. 97, 348 S.E.2d 509 (1986) (decided under former Code 1933, § 38-202);(decided under former O.C.G.A. § 24-2-2).

Length of time intervening between prior difficulty and present offense is only material as affecting the credibility and weight to be given such evidence. Barnes v. State, 157 Ga. App. 582, 277 S.E.2d 916 (1981) (decided under former Code 1933, § 38-202).

Objection to admission of similar transaction evidence must be at trial.

- Trial court properly denied defendant's motion for a new trial as defendant waived defendant's contentions that one of the similar transactions offered to show bent of mind and course of conduct was too remote in time, and that the similar transaction evidence was unduly prejudicial, as defendant failed to object on these grounds at trial. Murphy v. State, 263 Ga. App. 62, 587 S.E.2d 223 (2003) (decided under former O.C.G.A. § 24-2-2).

Use of alias.

- District attorney's opening statement to jury referring to defendant by defendant's alias "The Grass Man" was relevant since testimony of the witnesses established that defendant often used the alias. Campbell v. State, 160 Ga. App. 561, 287 S.E.2d 591 (1981) (decided under former Code 1933, § 38-202).

Prior peace warrant of victim against defendant.

- Under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), evidence of prior difficulties between the accused and the victim is admissible to illustrate the accused's motive, intent, or bent of mind toward the victim; therefore, a peace warrant that victim had taken out against defendant nine months before the victim's death was clearly relevant to show defendant's motive and "bent of mind" towards the victim, and the admission of the warrant into evidence did not violate defendant's due process rights. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), cert. dismissed, 489 U.S. 1094, 109 S. Ct. 1579, 103 L. Ed. 2d 931 (1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1836, 108 L. Ed. 2d 965 (1990) (decided under former O.C.G.A. § 24-2-2).

Mistrial was not necessary to preserve defendant's right to a fair trial after trial court immediately ruled out improperly admitted evidence and instructed the jury to disregard the evidence and, thus, the trial court did not abuse the court's discretion in denying defendant's motion for a mistrial after defendant claimed that the state improperly placed defendant's character into evidence when the state attempted to introduce evidence of a third similar shoplifting incident in which defendant was involved but the state's evidence failed to establish the third similar incident. Bradford v. State, 261 Ga. App. 621, 583 S.E.2d 484 (2003) (decided under former O.C.G.A. § 24-2-2).

Although the defendant contended that the statements from the deceased child's mother and an acquaintance placed the defendant's prior felony before the jury, the defendant overstated the case, as the record reflected that the state instructed the mother not to reference the defendant's criminal history and the acquaintance's testimony was a surprise; the witnesses' statements were nonresponsive; the statements simply referenced the defendant's prior incarceration, and not a prior felony; and the trial court provided a curative instruction, which the jury was presumed to have followed; thus, the defendant's character was not put at issue, and the trial court did not abuse the court's discretion when the court denied the defendant's motions for a mistrial. Wade v. State, 304 Ga. 5, 815 S.E.2d 875 (2018).

Counsel not ineffective in failing to seek severance.

- In the defendant's trial for two murders, the defendant's trial counsel was not ineffective in failing to move to sever the counts involving the two victims; trial counsel testified that counsel did not move for a severance because counsel believed that the state could have introduced "other acts" evidence from one case into the other under O.C.G.A. § 24-4-404(b) or as intrinsic evidence, and counsel wanted to speed the trials up because, at the time, the state's witnesses were being uncooperative. DeLoach v. State, Ga. , S.E.2d (Feb. 10, 2020).

Evidence of prior incarceration.

- Trial court did not abuse the court's discretion in admitting improper character evidence of the appellant regarding the appellant's previous incarceration because the appellant's brief statement about being in jail with the individual who assisted in the crime was relevant and admissible to show that the men knew each other prior to the crimes at issue. Easley v. State, 352 Ga. App. 1, 833 S.E.2d 591 (2019).

Similarity between former transactions and charged crime not found.

- When, in presenting similar crimes evidence to the jury, the state merely introduced certified copies of the guilty pleas, that procedure was reversible error because the jury was not presented with any evidence to establish the similarity or connection between the former transactions and the charged crime. Little v. State, 202 Ga. App. 7, 413 S.E.2d 496 (1991) (decided under former O.C.G.A. § 24-2-2).

Evidence of incident occurring when defendant was a juvenile.

- Trial court did not err when the court denied the defendant's motion for new trial on the basis that the state proffered similar transaction evidence of an incident that occurred when the defendant was a juvenile because the trial court did offer to give a curative instruction to the jury, but trial counsel refused the curative instruction citing "strategy" as counsel's reasons; the trial court admonished the witness not to make any references to the juvenile court proceeding. Kitchens v. State, 289 Ga. 242, 710 S.E.2d 551 (2011) (decided under former O.C.G.A. § 24-2-2).

Admission of similar transaction evidence not proper.

- State failed to prove that the defendant's prior attempted robbery was so similar to the charged offense that the charged offense must have been the defendant's handiwork as robbery of a woman alone at night after the woman had parked the car was not in the nature of a signature so as to be proof of the perpetrator's identity. Amey v. State, 331 Ga. App. 244, 770 S.E.2d 321 (2015), cert. denied, No. S15C1089, 2015 Ga. LEXIS 395 (Ga. 2015).

Evidence of other conduct or crimes was admissible in the following cases.

- See Fitzgerald v. State, 51 Ga. App. 636, 181 S.E. 186 (1935) (possession of whiskey) (decided under former Code 1933, § 38-202); Honea v. State, 181 Ga. 40, 181 S.E. 416 (1935) (conspiracy to commit robbery) (decided under former Code 1933, § 38-202); Loughridge v. State, 181 Ga. 261, 182 S.E. 12 (1935) (conspiracy to commit robbery and murder) (decided under former Code 1933, § 38-202); Crow v. State, 52 Ga. App. 192, 182 S.E. 685 (1935) (transporting liquor) (decided under former Code 1933, § 38-202); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (robbery) (decided under former Code 1933, § 38-202); Sisk v. State, 182 Ga. 448, 185 S.E. 777 (1936) (murder) (decided under former Code 1933, § 38-202); Ballenger v. State, 60 Ga. App. 344, 4 S.E.2d 58 (1939) (maintaining a disorderly house) (decided under former Code 1933, § 38-202); Heller v. State, 60 Ga. App. 552, 4 S.E.2d 413 (1939) (possession of burglary tools) (decided under former Code 1933, § 38-202); Springer v. State, 60 Ga. App. 641, 4 S.E.2d 679 (1939) (illegal sale of whiskey) (decided under former Code 1933, § 38-202); Guiffrida v. State, 61 Ga. App. 595, 7 S.E.2d 34 (1940) (abortion) (decided under former Code 1933, § 38-202); Hale v. State, 62 Ga. App. 315, 7 S.E.2d 787 (1940) (illegal sale of whiskey) (decided under former Code 1933, § 38-202); Williams v. State, 62 Ga. App. 679, 9 S.E.2d 697 (1940) (operating a lottery) (decided under former Code 1933, § 38-202); Thompson v. State, 191 Ga. 222, 11 S.E.2d 795 (1940) (homicide) (decided under former Code 1933, § 38-202); Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, cert. denied, 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 464 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (murder) (decided under former Code 1933, § 38-202); Simmons v. State, 196 Ga. 395, 26 S.E.2d 785 (1943) (robbery) (decided under former Code 1933, § 38-202); Fuller v. State, 197 Ga. 714, 30 S.E.2d 608 (1944) (murder) (decided under former Code 1933, § 38-202); Christian v. State, 71 Ga. App. 350, 30 S.E.2d 832 (1944) (violation of lottery laws) (decided under former Code 1933, § 38-202); Bell v. State, 71 Ga. App. 430, 31 S.E.2d 109 (1944) (homicide) (decided under former Code 1933, § 38-202); Loughridge v. State, 201 Ga. 513, 40 S.E.2d 544 (1946) (homicide) (decided under former Code 1933, § 38-202); Diggs v. State, 90 Ga. App. 853, 84 S.E.2d 611 (1954) (larceny) (decided under former Code 1933, § 38-202); Bowman v. State, 91 Ga. App. 52, 85 S.E.2d 66 (1954) (seduction and fornication) (decided under former Code 1933, § 38-202); Pierce v. State, 212 Ga. 88, 90 S.E.2d 417 (1955) (murder) (decided under former Code 1933, § 38-202); Lyles v. State, 215 Ga. 229, 109 S.E.2d 785 (1959) (homicide) (decided under former Code 1933, § 38-202); Huckaby v. State, 127 Ga. App. 439, 194 S.E.2d 119 (1972) (obscene telephone calls) (decided under former Code 1933, § 38-202); Garrett v. State, 147 Ga. App. 666, 250 S.E.2d 1 (1978) (theft by conversion) (decided under former Code 1933, § 38-202); Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (murder) (decided under former Code 1933, § 38-202); Cleveland v. State, 155 Ga. App. 267, 270 S.E.2d 687 (1980) (drug violation) (decided under former Code 1933, § 38-202); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980) (vehicular homicide) (decided under former Code 1933, § 38-202); Carroll v. State, 155 Ga. App. 514, 271 S.E.2d 650 (1980) (bank robbery) (decided under former Code 1933, § 38-202); Wilson v. State, 155 Ga. App. 560, 271 S.E.2d 694 (1980) (theft by deception) (decided under former Code 1933, § 38-202); Rakestraw v. State, 155 Ga. App. 563, 271 S.E.2d 696 (1980) (burglary) (decided under former Code 1933, § 38-202); Kendrick v. State, 156 Ga. App. 27, 274 S.E.2d 78 (1980) (theft by receiving stolen property) (decided under former Code 1933, § 38-202); Walker v. State, 156 Ga. App. 842, 275 S.E.2d 755 (1980) (embezzlement) (decided under former Code 1933, § 38-202); Sherrod v. State, 157 Ga. App. 351, 277 S.E.2d 335 (1981) (battery) (decided under former Code 1933, § 38-202); Huckeba v. State, 157 Ga. App. 795, 278 S.E.2d 703 (1981) (indecent exposure) (decided under former Code 1933, § 38-202); Millwood v. State, 164 Ga. App. 699, 296 S.E.2d 239 (1982) (homicide with a knife over misconduct of a woman) (decided under former O.C.G.A. § 24-2-2); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982) (multiple murders, kidnappings, armed robbery and burglary in three counties) (decided under former O.C.G.A. § 24-2-2); Hendrix v. State, 164 Ga. App. 831, 298 S.E.2d 317 (1982) (evidence of same facts already properly before jury) (decided under former O.C.G.A. § 24-2-2); Hunter v. State, 177 Ga. App. 326, 339 S.E.2d 381 (1985) (aggravated battery) (decided under former O.C.G.A. § 24-2-2); Nelson v. State, 181 Ga. App. 481, 352 S.E.2d 804 (1987) (theft of disadvantaged victim, eleven years earlier under similar circumstances) (decided under former O.C.G.A. § 24-2-2); Haywood v. State, 256 Ga. 694, 353 S.E.2d 184 (1987) (evidence showing propensity to use gun when intoxicated) (decided under former O.C.G.A. § 24-2-2); Bernyk v. State, 182 Ga. App. 329, 355 S.E.2d 753 (1987) (armed robbery) (decided under former O.C.G.A. § 24-2-2); Methvin v. State, 189 Ga. App. 906, 377 S.E.2d 735 (1989) (burglary) (decided under former O.C.G.A. § 24-2-2); Burney v. State, 201 Ga. App. 64, 410 S.E.2d 172 (1991) (burglary) (decided under former O.C.G.A. § 24-2-2); Farley v. State, 265 Ga. 622, 458 S.E.2d 643 (1995) (felony murder) (decided under former O.C.G.A. § 24-2-2); Herring v. State, 224 Ga. App. 809, 481 S.E.2d 842 (1997) (prior domestic violence) (decided under former O.C.G.A. § 24-2-2); Standfill v. State, 267 Ga. App. 612, 600 S.E.2d 695 (2004) (burglary and possession of tools) (decided under former O.C.G.A. § 24-2-2).

Since the prior incidents and the incident for which the defendant was being prosecuted all involved the defendant or an accomplice being in employee-only areas when the stores were open and employees were present, the similarities were adequate to satisfy the state's burden of showing a sufficient connection between similar offenses and the instant offense. Spinks v. State, 322 Ga. App. 387, 745 S.E.2d 653 (2013).

Evidence of prior difficulties between the defendant and the victim was admissible to show an ongoing scheme and given that the evidence was not so complex that the jury was unable to distinguish the evidence. Madison v. State, 329 Ga. App. 856, 766 S.E.2d 206 (2014).

Admission of prior acts evidence was not an abuse of discretion as the similarity between the charged offense and an altercation two days earlier in which the defendant poked the victim with a knife made the former act highly probative of the defendant's intent. Powell v. State, 332 Ga. App. 437, 773 S.E.2d 399 (2015).

In the defendant's murder trial, other acts evidence, including the defendant's act of following the defendant's spouse and slashing the spouse's tire on two occasions, was admissible as relevant to the defendant's motive to take revenge on the victim, with whom the spouse was having an affair, and to provoke confrontation; the evidence also countered the defendant's theory of self-defense. Anthony v. State, 298 Ga. 827, 785 S.E.2d 277 (2016).

Testimony by the sister of the defendant's ex-wife regarding prior acts of domestic violence committed by the defendant was properly admitted for purposes of showing the defendant's motive to control family members with violence, the intent to harm intimate partners, and to show the absence of mistake or accident. Smart v. State, 299 Ga. 414, 788 S.E.2d 442 (2016).

Other acts evidence, showing that the defendant engaged in voyeuristic activity involving the defendant's minor sister-in-law, was relevant because it made it more probable that the defendant took the nude pictures of the defendant's step-daughter with the intent to arouse the defendant's sexual desire and was indicative of the defendant's state of mind. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131 (2016).

Other acts evidence was properly admitted against the appellant because while the tire cutting and surveillance incidents showed only that the appellant was hurt by the wife's decision to divorce the appellant and the appellant was gathering evidence for the pending divorce action, it was also readily understood as demonstrating the appellant's desire to take revenge and to provoke confrontation in response to the wife's affair with the victim. Anthony v. State, 298 Ga. 827, 785 S.E.2d 277 (2016).

Cross-examination of the defendant's mother and sister were for the purpose of impeaching their testimony about the defendant's whereabouts at the time of the crimes on trial and demonstrating their motives for offering alibi testimony, a fear of violent reprisal from the defendant, and O.C.G.A. § 24-4-404(b) did not prevent such examination. Davis v. State, 302 Ga. 576, 805 S.E.2d 859 (2017).

Trial court did not err in admitting evidence of two other acts because the probative value of the other acts was great given the state's need for evidence to combat the defendant's attacks on the victim's credibility and negate the defense of consent, and the extrinsic acts, which involved the defendant's attempt at non-consensual sexual gratification with women the defendant did not know, were not of such a heinous nature that the acts were likely to incite the jury to an irrational decision. Cross v. State, 354 Ga. App. 355, 839 S.E.2d 265 (2020).

It was highly probable that the admission of the other-act evidence showing that the defendant stabbed another homeless man with a fork, even if erroneous, did not contribute to the jury's guilty verdicts because the evidence of guilt was strong, the prior incident was not the sort that posed a significant risk of inflaming the jury's passion, and the prosecutor's comments about the prior incident were focused on intent. Howell v. State, 307 Ga. 865, 838 S.E.2d 839 (2020).

Evidence of other conduct or crimes was inadmissible in the following cases.

- See Cawthon v. State, 119 Ga. 395, 46 S.E. 897 (1904) (adultery as background for murder) (decided under former Penal Code 1895, § 993); Alsobrook v. State, 126 Ga. 100, 54 S.E. 805 (1906) (adultery as background for murder) (decided under former Penal Code 1895, § 993); Moose v. State, 145 Ga. 361, 89 S.E. 335 (1916) (threats to another in assault case) (decided under former Penal Code 1910, § 1019); Young v. State, 149 Ga. 17, 98 S.E. 603 (1919) (adultery as background for murder) (decided under former Penal Code 1910, § 1019); Williams v. State, 51 Ga. App. 319, 180 S.E. 369 (1935) (killing a hog) (decided under former Code 1933, § 38-202); Hillery v. State, 51 Ga. App. 373, 180 S.E. 499 (1935) (possession of stolen goods in burglary case) (decided under former Code 1933, § 38-202); Ballenger v. State, 60 Ga. App. 344, 4 S.E.2d 58 (1939) (maintaining a disorderly house) (decided under former Code 1933, § 38-202); Robinson v. State, 62 Ga. App. 355, 7 S.E.2d 758 (1940) (murder) (decided under former Code 1933, § 38-202); Waters v. State, 80 Ga. App. 559, 56 S.E.2d 924 (1949) (murder by automobile) (decided under former Code 1933, § 38-202); Anderson v. State, 206 Ga. 527, 57 S.E.2d 563 (1950) (operating a disorderly house in a murder case) (decided under former Code 1933, § 38-202); Walker v. State, 86 Ga. App. 875, 72 S.E.2d 774 (1952) (theft) (decided under former Code 1933, § 38-202); Howard v. State, 211 Ga. 186, 84 S.E.2d 455 (1954) (embezzlement) (decided under former Code 1933, § 38-202); Kelley v. State, 98 Ga. App. 324, 105 S.E.2d 798 (1958) (assault in attempted murder case) (decided under former Code 1933, § 38-202); Abner v. State, 139 Ga. App. 600, 229 S.E.2d 83 (1976) (victim as homosexual in sodomy case) (decided under former Code 1933, § 38-202); Watkins v. State, 151 Ga. App. 510, 260 S.E.2d 547 (1979) (forgery) (decided under former Code 1933, § 38-202); Johnson v. State, 154 Ga. App. 793, 270 S.E.2d 214 (1980) (sale of contraband) (decided under former Code 1933, § 38-202).

Trial court disagreed that the other acts evidence was especially probative of the credibility of the defendant and the victim, given the lack of similarity between the other acts evidence of child molestation and the charged offense of rape, the decade separating the other acts from the charged offense, and the defendant's immaturity at the time the other acts were committed; however, the trial court believed that, under the circumstances, admitting extrinsic evidence of acts of alleged child molestation would lure the jury into finding the defendant guilty based on proof that was not specific to the crime charged, thereby infecting the proceedings with unfair prejudice and undermining the presumption of innocence. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

No ineffective counsel shown since state's motion to introduce was granted.

- Appellant failed to show that trial counsel performed deficiently by informing the jury that appellant had a lifelong drug and alcohol problem and had more than 20 criminal charges because the trial court had granted the state's motion to introduce other acts evidence under O.C.G.A. § 24-4-404(b), thus, it could not be said that any attempt trial counsel may have made to short-circuit its impact was deficient. Dickson v. State, 339 Ga. App. 500, 793 S.E.2d 663 (2016).

Evidence of improper juror influence through Facebook account.

- Trial court did not err in admitting evidence that the defendant conspired and attempted to improperly influence a juror in the defendant's trial because the jury could have concluded that the defendant, a podmate of the individual who told the individual's mother to contact a juror in the defendant's case, was part of the conspiracy to influence the juror through the use of a fake Facebook account and the evidence was relevant to the defendant's consciousness of guilt. West v. State, 305 Ga. 467, 826 S.E.2d 64 (2019).

2. Character

Good character may of itself generate a reasonable doubt in the minds of the jury as to the defendant's guilt, and for this reason the defendant is allowed when the defendant sees fit to offer defendant's good character in issue. Clarke v. State, 52 Ga. App. 254, 183 S.E. 92 (1935) (decided under former Code 1933, § 38-202).

In criminal trials, the state cannot introduce evidence of the character of the accused unless the accused has personally first put it in issue. Richardson v. State, 41 Ga. App. 226, 152 S.E. 599 (1930) (decided under former Penal Code 1910, § 1019); Clarke v. State, 52 Ga. App. 254, 183 S.E. 92 (1935); Love v. State, 70 Ga. App. 529, 28 S.E.2d 781 (1944) (decided under former Code 1933, § 38-202); Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1952); Haire v. State, 209 Ga. 378, 72 S.E.2d 707 (1952) (decided under former Code 1933, § 38-202); Borders v. State, 114 Ga. App. 90, 150 S.E.2d 306 (1966); Brown v. State, 118 Ga. App. 617, 165 S.E.2d 185 (1968) (decided under former Code 1933, § 38-202); Dawson v. State, 120 Ga. App. 242, 170 S.E.2d 45 (1969); Bowen v. State, 123 Ga. App. 670, 182 S.E.2d 124 (1971) (decided under former Code 1933, § 38-202); Dudley v. State, 228 Ga. 551, 186 S.E.2d 875 (1972); Wooten v. State, 125 Ga. App. 635, 188 S.E.2d 409 (1972) (decided under former Code 1933, § 38-202); Askew v. State, 135 Ga. App. 56, 217 S.E.2d 385 (1975); Mikle v. State, 236 Ga. 748, 225 S.E.2d 275 (1976) (decided under former Code 1933, § 38-202); Brown v. State, 237 Ga. 467, 228 S.E.2d 853 (1976); Posey v. State, 152 Ga. App. 216, 262 S.E.2d 541 (1979) (decided under former Code 1933, § 38-202); Perry v. State, 154 Ga. App. 559, 269 S.E.2d 63 (1980), overruled on other grounds, 231 Ga. App. 61, 497 S.E.2d 642 (1998); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980) (decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202);(decided under former Code 1933, § 38-202).

General character of defendant and defendant's conduct in other transactions was irrelevant under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) unless the defendant chose to put defendant's character in issue. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-202).

Opportunity of state to disprove good character.

- Whenever defendant puts defendant's good character in issue as fact state has privilege of disproving this fact, by cross-examination of the witness by whom the accused attempts to make the proof. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981) (decided under former Code 1933, § 38-202).

When nature of the case does not involve defendant's character, and the case does not render necessary and proper the investigation thereof, it is error to allow, over objection of the defendant, prejudicial and irrelevant matter to go before the jury in a trial which tends to place defendant's character and conduct before the jury. Hartley v. State, 159 Ga. App. 157, 282 S.E.2d 684 (1981) (decided under former Code 1933, § 38-202).

After testimony put defendant's character in issue, implying defendant's commission of the offense and such testimony was not necessary or relevant to the circumstances of defendant's arrest, that testimony should not be admitted. Bryan v. State, 157 Ga. App. 635, 278 S.E.2d 177 (1981) (decided under former Code 1933, § 38-202).

A passing reference to a defendant's record does not place defendant's character in evidence. Johnson v. State, 256 Ga. 604, 351 S.E.2d 623 (1987) (decided under former O.C.G.A. § 24-2-2).

In a trial for armed robbery, aggravated assault, kidnapping, and possession of a firearm during the commission of certain crimes, the trial court properly denied defendant's motion for a mistrial even though the state placed defendant's character in issue when a police officer testified that defendant was "picked up on charges" when police arrested defendant in Maryland pursuant to a fugitive warrant because the testimony was admissible and relevant to the circumstances surrounding defendant's arrest, even if it did incidentally show that defendant committed another crime. Blake v. State, 272 Ga. App. 181, 612 S.E.2d 33 (2005) (decided under former O.C.G.A. § 24-2-2).

When an officer testified that the officer had known the defendant for a long time and "could have charged" the defendant in a couple of cases, this passing reference to prior conduct did not suffice to put the defendant's character in evidence so as to violate former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405); furthermore, a curative instruction remedied any prejudicial impact from the statement. Height v. State, 281 Ga. 727, 642 S.E.2d 812 (2007) (decided under former O.C.G.A. § 24-2-2).

When an investigator, asked how the investigator knew defendant, replied, "I've made contact with [the defendant] in the streets before and I believe through past cases," this did not warrant a mistrial. A passing reference to a defendant's criminal record did not suffice to put the defendant's character in evidence so as to violate former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405). Thomas v. State, 291 Ga. App. 795, 662 S.E.2d 849 (2008) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion in denying the defendant's motion for mistrial, which was based on the admission of a recorded telephone conversation between the defendant and the defendant's mother, who stated "because it's on your record," in response to why the defendant could not be disappointed if the defendant was denied bond; the comment was fleeting and was not a direct comment about the defendant's criminal history, and the mother did not comment on the content of the defendant's criminal record or even say, with certainty, that one did or did not exist. Hamrick v. State, 304 Ga. App. 378, 696 S.E.2d 403 (2010) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion by denying a motion for a mistrial because, although a reference by a defense witness on cross-examination to the defendant's photograph having been pulled from the website of the Georgia State Board of Pardons and Paroles was improper, the curative instruction which the trial court gave was sufficient to remedy any prejudice arising from the answer. Moreover, the evidence of guilt in the case was overwhelming, such that the comment likely did not affect the outcome of the trial. Russell v. State, 308 Ga. App. 328, 707 S.E.2d 543 (2011) (decided under former O.C.G.A. § 24-2-2).

Defendant's character not "put in issue."

- It is only when a defendant has "put his character in issue," as that term is defined in the context of former O.C.G.A. §§ 24-2-2 and24-9-20(b), that the court is required to give a charge on good character and when, in a trial for aggravated battery, the defendant's statement that defendant never shot anybody was not responsive to the direct question relating to defendant's defenses of accident and self-defense, which the court did fully charge, the volunteered additional statement, merely repeated on redirect, was not legally sufficient to put defendant's character in issue. Williams v. State, 187 Ga. App. 355, 370 S.E.2d 210 (1988) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in denying defendant's motion in limine to exclude evidence that police, in searching defendant's apartment, found not only the murder weapon defendant used to shoot and kill defendant's girlfriend, but also two other handguns; the evidence of the two other handguns was relevant to the accuracy of a statement defendant gave to police that upon searching defendant's apartment, the police would find the two guns hidden in a shoe box and the fact that defendant owned the guns was not, in and of itself, evidence of bad character. Brinson v. State, 276 Ga. 671, 581 S.E.2d 548 (2003) (decided under former O.C.G.A. § 24-2-2).

State did not improperly place a defendant's character in evidence by informing the jury that defendant was charged with possession of a firearm by a convicted felon when defendant was charged with possession of a firearm by a convicted felon, not because defendant personally was a convicted felon, but because defendant aided and abetted defendant's cousin, a convicted felon, in receiving and possessing a firearm. Perry v. State, 276 Ga. 836, 585 S.E.2d 614, rev'd, 276 Ga. 839, 584 S.E.2d 253 (2003) (decided under former O.C.G.A. § 24-2-2).

Testimony by police officers did not improperly place the defendant's character at issue; statements regarding the charges against the defendant at the time of previous arrests were merely passing references and described the circumstances of the arrests; a statement about the defendant having an open warrant fell short of placing the defendant's character at issue. Williams v. State, 285 Ga. App. 190, 645 S.E.2d 676 (2007) (decided under former O.C.G.A. § 24-2-2).

Permitting an officer to testify that the officer had been looking for the defendant because the officer had a warrant for the defendant's arrest did not impermissibly put the defendant's character into issue; the testimony was admissible as relevant to the circumstances leading the police to the residence where the defendant was found. Smith v. State, 285 Ga. App. 399, 646 S.E.2d 499 (2007) (decided under former O.C.G.A. § 24-2-2).

Because a mere mention that the defendant had been in jail did not place the defendant's character in issue, and despite this fact the defendant waived any claim of error regarding the placement of character in issue, it did not amount to reversible error; moreover, the challenged testimony, given by the defendant's mother, amounted to a non-responsive answer, which the state did not directly solicit and it did not appear from the record that the state anticipated the response. Jennings v. State, 285 Ga. App. 774, 648 S.E.2d 105 (2007), cert. denied, No. S07C1576, 2007 Ga. LEXIS 667 (Ga. 2007) (decided under former O.C.G.A. § 24-2-2).

When a witness twice referred to a codefendant's incarceration, these nonresponsive answers did not improperly place the defendant's own character at issue. Moreover, any error was harmless because the evidence of the defendant's guilt was overwhelming. Walker v. State, 282 Ga. 703, 653 S.E.2d 468 (2007) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in admitting evidence that police were at the defendant's residence to serve defendant with an arrest warrant, because that evidence did not improperly place the issue of character into evidence, but was necessary to explain why police were able to detain, handcuff, and search the defendant. Moreover, a limiting instruction was also issued advising the jurors that the jurors were not to consider the warrant for any purpose other than to explain the officers' presence at the defendant's home. Thrasher v. State, 289 Ga. App. 399, 657 S.E.2d 316 (2008) (decided under former O.C.G.A. § 24-2-2).

Appellant alleged that the trial court erred by denying appellant's motion for a mistrial because a witness, while testifying about the abduction and murder of the victim, improperly injected the appellant's character in issue by saying, in front of the jury, "these guys are killers." While the state agreed that the reference to "killers" in this comment should not have been made, any error was harmless as the statement did not place the appellants' character in issue because the statement did not concern other transactions. Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009) (decided under former O.C.G.A. § 24-2-2).

Testimony that an investigator ran a criminal history check on the defendant and prepared photographic lineups at two police stations did not put the defendant's character into issue under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405). The testimony did not indicate that the defendant had been convicted of any crime and did not otherwise specify the nature of the defendant's prior dealings with police; moreover, the other evidence against the defendant was substantial and damning, and the action taken by the trial court assured, without drawing attention to the improper evidence, that there would be no other references to the defendant's criminal history. Young v. State, 297 Ga. App. 248, 676 S.E.2d 854 (2009) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err by denying the defendant's motion for mistrial with respect to a nonresponsive answer by an accomplice when the accomplice was asked on direct examination whether the accomplice had a conversation with defendant about a pistol in the defendant's possession on the day of the shooting because a nonresponsive answer that impacted negatively on the defendant's character did not improperly place the defendant's character in issue; moreover, the defendant declined the trial court's offer to give a curative instruction with regard to the statement. Lewis v. State, 287 Ga. 210, 695 S.E.2d 224 (2010) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err by denying the defendant's motion for mistrial due to the prosecutor's questioning an accomplice as to whether the accomplice had spoken with the defendant on the previous day because the possibility that the defendant had spoken with the accomplice did not necessarily imply that the defendant too was in custody; even if it did, a passing reference to the defendant's incarceration did not place the defendant's character in evidence. Lewis v. State, 287 Ga. 210, 695 S.E.2d 224 (2010) (decided under former O.C.G.A. § 24-2-2).

Trial counsel did not place the defendant's character in issue by conceding the defendant's guilt of aggravated assault because the concession related to the facts alleged and crimes charged in the case, not to other transactions reflective of the defendant's character; given that numerous witnesses testified that the defendant had a bat on the night in question and struck the victim in the head with the bat while only one witness testified that the defendant took the victim's wallet out of the victim's pocket, trial counsel's strategy of contesting only the armed robbery count was reasonable and not ineffective. Taylor v. State, 304 Ga. App. 395, 696 S.E.2d 686 (2010) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in denying the defendant's motion for a mistrial after an investigating officer testified on crossexamination that the defendant gave the officer a statement right after the defendant talked with the defendant's parole officer because the testimony followed defense counsel's question regarding the content, not the timing of the defendant's statement; a passing reference to a defendant's record does not place his or her character in evidence, and a nonresponsive answer that impacts negatively on a defendant's character does not improperly place his or her character in issue. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141 (2010) (decided under former O.C.G.A. § 24-2-2).

Defendant failed to establish a claim of ineffective assistance of counsel due to counsel's failure to seek a mistrial after successfully objecting to a witness's testimony that the defendant told the witness that "he would have a shoot-out with police before he ever went back to jail" on the ground that the witness's response placed the defendant's character in evidence because even if counsel's failure to request a mistrial were deemed deficient, no mistrial would have been granted as a nonresponsive answer that impacted negatively on a defendant's character did not improperly place the defendant's character in issue. Billings v. State, 308 Ga. App. 248, 707 S.E.2d 177 (2011) (decided under former O.C.G.A. § 24-2-2).

Character not placed in issue by prison uniform.

- In a prosecution for felony murder, armed robbery, and burglary, the fact that the jury was shown a videotape of the defendant's statement to police depicting the defendant wearing a prison uniform did not place the defendant's character in evidence. Jackson v. State, 284 Ga. 484, 668 S.E.2d 700 (2008) (decided under former O.C.G.A. § 24-2-2).

Use of booking photographs.

- As the booking photograph in no way suggested that the defendant was guilty of any previous crimes, the trial court did not abuse the court's discretion in admitting the photographs. Clark v. State, 285 Ga. App. 182, 645 S.E.2d 671 (2007) (decided under former O.C.G.A. § 24-2-2).

Trial court erred by admitting the defendant's mug shot from a prior arrest because the mug shot used in the photo array could not have been related to the crime for which the defendant was being tried, but it would have to be related to a prior crime; however, the error was harmless based on the overwhelming evidence of the defendant's guilt. Sharpe v. State, 288 Ga. 565, 707 S.E.2d 338 (2011) (decided under former O.C.G.A. § 24-2-2).

Agent's reference to the defendant's mug shot from a previous arrest was harmless because there was overwhelming evidence of the defendant's guilt. Butler v. State, 290 Ga. 425, 721 S.E.2d 889 (2012) (decided under former O.C.G.A. § 24-2-2).

Photographic identification.

- In a prosecution for forgery, defendant's photographic identification card issued by the Georgia Department of Corrections was admissible as relevant to issues of the identity of the perpetrator and the credibility of witnesses; the card did not refer to any charge or conviction nor indicate that defendant was a parolee. Biggins v. State, 229 Ga. App. 297, 494 S.E.2d 45 (1997) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in denying defendant's motion to exclude evidence and admitting the correctional facility identification card found on defendant's person at the time of arrest for stealing a car as the card was not used to show defendant's criminal character, but, instead, was used to prove that defendant gave a police officer investigating the crime a false name, which was a different crime. McNeil v. State, 257 Ga. App. 147, 570 S.E.2d 433 (2002) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in admitting investigating officer's testimony that the investigating officer obtained from police in another county a prior photograph of defendant for use in a photographic lineup the investigating officer was creating as the investigating officer's testimony, without more, did not indicate that defendant was guilty of any prior crimes, and, thus, did not improperly place defendant's character in issue. Browne v. State, 261 Ga. App. 648, 583 S.E.2d 496 (2003) (decided under former O.C.G.A. § 24-2-2).

Defendant waived any error in the admission of a photograph of defendant with a gun as defendant did not argue at trial that the photo was improper character evidence; further, gun ownership did not impute bad character. Johnson v. State, 274 Ga. App. 641, 618 S.E.2d 716 (2005) (decided under former O.C.G.A. § 24-2-2).

Admission of fingerprint card.

- Admission into evidence of the defendant's fingerprint card taken in connection with a previous crime does not place the defendant's character into evidence when any incriminating evidence was removed from the face of the card. Williams v. State, 184 Ga. App. 124, 361 S.E.2d 15 (1987) (decided under former O.C.G.A. § 24-2-2).

In a prosecution for possession of marijuana, it was reversible error to introduce a fingerprint card of defendant that showed the date of a prior arrest and listed charges against defendant. Jinks v. State, 229 Ga. App. 18, 493 S.E.2d 214 (1997) (decided under former O.C.G.A. § 24-2-2).

Evidence of prison identification card.

- Defendant's claim that defendant's character was improperly placed into evidence when an officer testified that the officer found defendant's prison identification card in defendant's pocket was waived as defendant failed to make a further objection or renew defendant's motion for a mistrial after a curative instruction was given. McCullough v. State, 268 Ga. App. 445, 602 S.E.2d 181 (2004) (decided under former O.C.G.A. § 24-2-2).

Admission of videotape.

- Trial court did not err in denying defendant's motion in limine that sought to bar introduction of defendant's videotaped statement to police, as well as defendant's later motion for mistrial after the videotape was played for the jury; although defendant claimed that the videotape was entirely exculpatory and was only introduced by the state to place defendant's character in evidence because defendant referenced in the videotape a murder, separate from the instant crimes, with which defendant had previously been charged, the videotape was not entirely exculpatory and defendant's references in the videotape were relevant to other issues besides defendant's character, such as motive, intent, and course of conduct, and, thus, was material and admissible. Cummings v. State, 261 Ga. App. 281, 582 S.E.2d 231 (2003), cert. denied, 543 U.S. 824, 125 S. Ct. 40, 160 L. Ed. 2d 35 (2004) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err by admitting improper character evidence, consisting of video and photographs of the defendant stealing laptops, because the evidence showed the theft of the laptops the defendant was accused of receiving; the videotape was relevant to show that the laptops at issue were stolen. Fields v. State, 310 Ga. App. 455, 714 S.E.2d 45 (2011) (decided under former O.C.G.A. § 24-2-2).

Evidence of motive.

- Evidence that victim's taking of an arrest warrant would have immediately returned defendant to jail was relevant to prove that defendant had a motive to kill the victim and relevant evidence is not rendered inadmissible simply because it incidentally puts the defendant's character in issue. Terrell v. State, 271 Ga. 783, 523 S.E.2d 294 (1999), recons. denied, overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018) (decided under former O.C.G.A. § 24-2-2).

Evidence that defendant's motive for shooting the victim was the victim's friendship with a person who had apparently bought drugs from defendant, but had refused to pay the amount of money defendant demanded, was admissible, even if it injected defendant's character into evidence. Sharif v. State, 272 Ga. App. 660, 613 S.E.2d 176 (2005) (decided under former O.C.G.A. § 24-2-2).

Evidence that defendant was on probation at the time of the crimes was relevant to show defendant's motive for fleeing from the officer, even though the evidence might have reflected negatively on defendant's character. Mills v. State, 273 Ga. App. 699, 615 S.E.2d 824 (2005) (decided under former O.C.G.A. § 24-2-2).

Substantial evidence showed that defendant was using crack cocaine before the crimes and that defendant planned to take the victim's wallet to purchase more; proof of motive was not inadmissible simply because it incidentally put defendant's character into evidence. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005) (decided under former O.C.G.A. § 24-2-2).

Defendant failed to establish that defendant received ineffective assistance of counsel because, even assuming that the transcript was accurate and that the involvement of drug money was placed before the jury, the question elicited testimony which constituted relevant evidence of defendant's motive, and thus defense counsel was not ineffective in failing to object, since any objection would have been fruitless. Jones v. State, 280 Ga. 205, 625 S.E.2d 1 (2005) (decided under former O.C.G.A. § 24-2-2).

Trial counsel did not "open the door" to bad character evidence by stating that the evidence would show that the victim previously stole the defendant's cash and marijuana because evidence concerning the victim's transaction with the defendant and the defendant's subsequent suspicion that the victim stole the defendant's marijuana and money was admissible as evidence of prior difficulties between the two and was relevant to show the defendant's motives. Taylor v. State, 304 Ga. App. 395, 696 S.E.2d 686 (2010) (decided under former O.C.G.A. § 24-2-2).

Trial court did not violate former O.C.G.A. § 24-2-2 in admitting evidence of the defendant's extramarital relationship with another woman as it showed that the defendant had a motive to conceal the defendant's extramarital affair with the victim not only from the defendant's wife, but from the other woman. Washington v. State, 294 Ga. 560, 755 S.E.2d 160 (2014)(decided under former O.C.G.A. § 24-2-2).

Trial court did not err by admitting into evidence a former roommate's testimony about the defendant's conversation about a proposed insurance scheme as the evidence was relevant to show motive. Mattei v. State, 307 Ga. 300, 835 S.E.2d 623 (2019).

Trial court did not abuse the court's discretion in admitting other acts evidence showing the defendant's gang membership because that evidence helped establish a motive for the defendant to encourage the accomplice to shoot the victim. Worthen v. State, 306 Ga. 600, 832 S.E.2d 335 (2019).

Phone call admitted as evidence of motive.

- Trial court did not err by admitting a recording of a phone call defendant's wife made after being left alone in the police interview room because the call revealed a motive for why the defendant would want to injure the defendant's wife and the call showed that the stabbing was intentional. Wilson v. State, 351 Ga. App. 50, 830 S.E.2d 407 (2019), cert. denied, 2020 Ga. LEXIS 62 (Ga. 2020).

Evidence of drug use.

- Because evidence of the defendant's prior drug use and history of crimes committed against family members fueled by that drug use were properly admitted as relevant to the crimes charged, despite incidentally placing the defendant's character in issue, convictions for both aggravated assault and simple assault were upheld on appeal. Jones v. State, 283 Ga. App. 812, 642 S.E.2d 887 (2007) (decided under former O.C.G.A. § 24-2-2).

Because evidence of the defendant's prior drug use was introduced to show evidence of motive, it did not violate former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405); therefore, counsel was not ineffective for failing to raise a meritless objection. Simons v. State, 311 Ga. App. 819, 717 S.E.2d 319 (2011) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in allowing the state to introduce evidence that the defendant used cocaine and marijuana before the robbery because an accomplice's testimony that the accomplice and the defendant used drugs on the day of the crime was relevant evidence of the defendant's state of mind and admissible as part of the res gestae; whether the effects due to the drugs' use may have worn off by the time of the crime was a question for the jury to decide. Hawkins v. State, 316 Ga. App. 415, 729 S.E.2d 549 (2012) (decided under former O.C.G.A. § 24-2-2).

Evidence of defendant's Klu Klux Klan affiliation was admissible since the evidence explained defendant's motive for murder and defendant's bent of mind. Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998), cert. denied, 525 U.S. 1078, 119 S. Ct. 817, 142 L. Ed. 2d 676 (1999) (decided under former O.C.G.A. § 24-2-2).

Evidence of Gothic beliefs or Satanism.

- Trial court erred in admitting photographs of the defendant with dyed black hair and dark make-up, a document bearing the words of a "curse" to be recited while burning the letter over a black candle, and seven different inscriptions bearing themes of anguish, enslavement, atheism, and violence because nothing in the challenged evidence explicitly referenced Satanism or "gothic" beliefs and there was no testimony linking the inscriptions or other evidence to any such ideology. The trial court abused the court's discretion in admitting the challenged evidence, which bore no specific connection to the crime and operated to impugn the defendant's character. Boring v. State, 289 Ga. 429, 711 S.E.2d 634 (2011) (decided under former O.C.G.A. § 24-2-2).

Admissison of defendant's violence-prone Facebook posts error.

- Trial court erred in allowing the state to introduce evidence in its case in chief of threatening posts the defendant had made on Facebook as evidence of the defendant's allegedly violent character and behavior in conformity therewith because O.C.G.A. § 24-4-405 required such proof be made by testimony as to reputation or in the form of an opinion; however, the error was harmless. Timmons v. State, 302 Ga. 464, 807 S.E.2d 363 (2017).

Evidence incidentally reflecting on character not barred.

- Former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) did not bar evidence simply because the evidence might incidentally reflect on the defendant's character. Felker v. State, 252 Ga. 351, 314 S.E.2d 621, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984) (decided under former O.C.G.A. § 24-2-2).

In allowing testimony relating to defendant's obtaining possession of a gun used in committing offenses, the trial court refused to allow characterization of defendant's conduct as criminal, denial of a motion to exclude the testimony was proper since the limitation injected defendant's character only minimally. Baker v. State, 225 Ga. App. 848, 485 S.E.2d 548 (1997) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in denying defendant's motion for a mistrial based on admission of a police officer's testimony that defendant, on the night prior to being arrested for theft by receiving stolen property, fled every time the officer turned into a particular parking lot and that the stolen property, a rental car, was parked nearby; even though the evidence might have incidentally put defendant's character in issue, the evidence was relevant and probative on the issue of defendant's consciousness of guilt. Richardson v. State, 275 Ga. App. 320, 620 S.E.2d 522 (2005) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion in allowing evidence of the previous conflict between the defendant and the condominium association because the testimony was relevant to whether the defendant made telephone calls with the intent of harassing the victim in violation of O.C.G.A. § 16-11-39.1(a) and only incidentally reflected on the defendant's character. Bozzuto v. State, 276 Ga. App. 614, 624 S.E.2d 166 (2005) (decided under former O.C.G.A. § 24-2-2).

In a prosecution for armed robbery, the victim's testimony that the defendant looked at the victim with a "mean, just horrible cold-hearted face" was relevant to show the defendant's demeanor during the commission of the crime, even if the testimony incidentally placed the defendant's character in issue. Fuller v. State, 295 Ga. App. 439, 672 S.E.2d 438 (2009), cert. denied, No. S09C0749, 2009 Ga. LEXIS 220 (Ga. 2009) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in denying the defendant's motion for a mistrial based on an allegation that the defendant's character was impermissibly placed into evidence because the challenged testimony was no more than a fleeting comment, and, thus, the trial court was authorized to find that its effect was not prejudicial enough to warrant a mistrial; because defense counsel declined the trial court's offer to give curative instructions to the jury, the defendant would not be heard to complain. Bowen v. State, 304 Ga. App. 819, 697 S.E.2d 898 (2010) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in failing to grant a mistrial after a witness testified that the witness was afraid of the defendant and the defendant's friends because although the testimony put the defendant's character in evidence, the testimony was admissible since the testimony was relevant to the witness's credibility and was being used to show that the witness was testifying by reason of duress or fear; in light of the fact that four other witnesses independently testified that the witnesses also observed the defendant shoot the victim and picked the defendant out of a photographic lineup, even if the witness's testimony was improper, any error was harmless. Cannon v. State, 288 Ga. 225, 702 S.E.2d 845 (2010) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in denying the defendant's motion in limine to redact references in the defendant's statement to previous drug transactions because the statement was relevant to the issue of the defendant's intent; any potential error caused by the inclusion of the defendant's references to previous drug transactions amounted to harmless error in light of the overwhelming evidence against the defendant, including the defendant's own statement admitting to drug dealing. Nowell v. State, 312 Ga. App. 150, 717 S.E.2d 730 (2011) (decided under former O.C.G.A. § 24-2-2).

Testimony that the defendant had another child was admissible even though the testimony might incidentally place the defendant's character at issue because the testimony was relevant to explain why the 12-year-old victim, who had initially fabricated a story about the father of the child, later said that the victim had a sexual relationship with the defendant; and because, given the overwhelming evidence demonstrating that the defendant was the father of the defendant's 12-year-old niece's child, it was unlikely that the testimony negatively impacted the outcome of the defendant's case, and the failure to demonstrate harm from an alleged error precluded reversal. Andrews v. State, 331 Ga. App. 353, 771 S.E.2d 59 (2015).

Evidence of good character may not serve to create such doubt, even in the face of apparently conclusive evidence, as to lead jurors to believe the other evidence false or witnesses mistaken. Edwards v. State, 255 Ga. 149, 335 S.E.2d 869 (1985) (decided under former O.C.G.A. § 24-2-2).

Testimony as to defendant's residence.

- Defendant's character not injected into evidence after a police officer testified that the officer knew where defendant resided. Chaney v. State, 169 Ga. App. 616, 314 S.E.2d 457 (1984) (decided under former O.C.G.A. § 24-2-2).

State's mention of defendant's aliases.

- State does not impermissibly place the defendant's character in issue by referring, in a limited manner, to the defendant's uncontested correct aliases and nickname. Veal v. State, 167 Ga. App. 175, 306 S.E.2d 667 (1983), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-2-2).

Good character is valid defense.

- Courts of this state have consistently recognized the validity of a good character defense, and have held that good character should be considered by the court and jury. Riceman v. State, 166 Ga. App. 825, 305 S.E.2d 595 (1983) (decided under former O.C.G.A. § 24-2-2).

Specific acts to prove character.

- Former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405) limits proof of character to evidence of reputation. Proof of conduct in other transactions by evidence of specific instances of such conduct is not authorized but amounts to self-serving declarations of nonculpability to prove a trait of character. Baine v. State, 181 Ga. App. 856, 354 S.E.2d 177 (1987) (decided under former O.C.G.A. § 24-2-2); Barrett v. State, 192 Ga. App. 705, 385 S.E.2d 785 (1989);(decided under former O.C.G.A. § 24-2-2).

Character testimony need not be based exclusively on community relationships.

- Appellate court could not conclude that the trial court erred in restricting the character testimony of one of the defendant's witnesses, which testimony was obtained through business relationships rather than through the community in which the defendant lived, and further, even if the trial court did commit error, the defendant showed no harm in the restriction as the trial court did not completely restrict the witness's testimony, and because of the cumulative testimony of the other character witnesses concerning the defendant's good character. Burchette v. State, 260 Ga. App. 739, 580 S.E.2d 609 (2003), aff'd, 278 Ga. 1, 596 S.E.2d 162 (2004) (decided under former O.C.G.A. § 24-2-2).

Inadvertant reference did not warrant mistrial.

- Given the trial court's prompt and pointed curative instruction after an inadvertent placement of the defendant's character into evidence, the trial court did not abuse the court's discretion in denying the defendant a mistrial. Hunter v. State, 281 Ga. 526, 640 S.E.2d 271 (2007) (decided under former O.C.G.A. § 24-2-2).

When a stalking victim was asked if the defendant had ever pulled a gun on the victim, the victim's reply that the victim had seen the defendant pull a gun on someone else was stricken as nonresponsive, and the trial court advised the jury to disregard that response. Even assuming this testimony improperly injected evidence of the defendant's bad character, the defendant was not entitled to a mistrial, particularly in light of the defendant's testimony that admitted each act listed in the indictment. Seibert v. State, 294 Ga. App. 202, 670 S.E.2d 109 (2008) (decided under former O.C.G.A. § 24-2-2).

When the nature of the presentence hearing involves the "general character" of the defendant, and when the state has notified the defendant that such evidence will be admitted, evidence of general bad character may be admitted. Cowan v. State, 130 Ga. App. 320, 203 S.E.2d 311 (1973) (decided under former Code 1933, § 38-202); Cochran v. State, 144 Ga. App. 820, 242 S.E.2d 735 (1978);(decided under former Code 1933, § 38-202).

Statements as to defendant's drinking habits.

- Testimony that a defendant drank alcohol did not place defendant's character in issue under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405); further, testimony that the defendant had been drinking on the night of the crimes of child molestation of the defendant's daughter concerned the res gestae of the incident, which the state was entitled to present even if the defendant's character was incidentally placed in issue. Hernandez v. State, 304 Ga. App. 435, 696 S.E.2d 155 (2010) (decided under former O.C.G.A. § 24-2-2).

Evidence of victim's alcoholism not relevant.

- Defendant's convictions of aggravated battery and simple battery were affirmed as the trial court properly refused to admit evidence of the victim's alcoholism prior to the victim's involvement with defendant since defendant failed to show any nexus between the victim's alcoholism and the conclusion that the victim had falsely accused defendant of battery. Harris v. State, 263 Ga. App. 329, 587 S.E.2d 819 (2003) (decided under former O.C.G.A. § 24-2-2).

Voluntary intoxication charge was not "red flag" as to character.

- Defendant's claim that the state used a voluntary intoxication charge as a "red flag" to the jury that defendant was drunk and therefore was "an unsavory character," that the victim's parents now might question their decision "to invite this intoxicated man into their home," and that defendant had "major psychological problems" was rejected; there was evidence from which an inference or deduction might be made that defendant was drunk on the afternoon in question. Byers v. State, 276 Ga. App. 295, 623 S.E.2d 157 (2005) (decided under former O.C.G.A. § 24-2-2).

Bent of mind evidence.

- In a joint trial of two defendants, the trial court did not err in showing the jury portions of a movie which depicted a method of disposing of a murdered victim's body as: (1) such was relevant to show a bent of mind, despite the fact that it could have placed the first defendant's character in issue; and (2) the jury could have made the permissible inference that the first defendant was encouraged by the movie to order the manner of disposing of the victim's body; moreover, because the second defendant failed to request a cautionary instruction to adequately protect from this inference, the second defendant could not complain of the inference on appeal. Oree v. State, 280 Ga. 588, 630 S.E.2d 390 (2006) (decided under former O.C.G.A. § 24-2-2).

Although trial counsel should not have acquiesced in and later failed to object to a jury charge on a "bent of mind" exception, reading the charge as a whole, including the correct portions of the instructions regarding the proper purpose for admitting the prior difficulty evidence, there was no fair risk that the jury was confused and misled as to the proper limited use of prior difficulty transaction evidence to the prejudice of the defendant. Butler v. State, 354 Ga. App. 473, 841 S.E.2d 162 (2020).

Character evidence admissible.

- On the trial of a case arising under a municipal ordinance prohibiting street walking, evidence of the general character of the woman arrested was admissible. Braddy v. City of Milledgeville, 74 Ga. 516, 58 Am. R. 443 (1885) (decided under former Code 1882, § 3757).

On the trial of one for murder when the testimony tended to show that the homicide was committed in consequence of an effort to have some sort of sexual relation with the victim, and the defendant introduced a witness to establish the defendant's good character, it was competent, on cross-examination, to ask such witness if the witness had not heard of certain lascivious acts of the defendant with other females. Frank v. State, 141 Ga. 243, 80 S.E. 1016, aff'd on other grounds, 142 Ga. 741, 83 S.E. 645 (1914); 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 582 (1915) (decided under former Penal Code 1910, § 1019).

Trial court did not abuse the court's discretion in finding that the defendant's prior bad acts were admissible because the defendant pled not guilty, thereby making intent a material issue; thus, the defendant's position of intending only to help the victims, but not to commit any criminal offenses, squarely challenged the element of intent and the witness testified that the defendant sold the witness as a prostitute and held the witness against their will, just like the defendant did with the victims in the case. Curry v. State, 330 Ga. App. 610, 768 S.E.2d 791 (2015), cert. dismissed, No. S16C0519, 2016 Ga. LEXIS 278 (Ga. 2016).

Trial court did not err in finding that the defense opened the door to the admission of character evidence because, although counsel's question to the witness might not have been specifically aimed at eliciting character evidence, it was, as admitted by counsel, part of counsel's trial strategy to allow the witness to give lengthy and nonresponsive answers to questioning; and the trial court exercised the court's discretion and concluded that counsel's conscious decision not to object or redirect the nonresponsive witness once the witness made a reference to the defendant's character created an inference that counsel intended to inject character evidence into the trial and thus triggered the state's right to explore and impeach that testimony. Harris v. State, 330 Ga. App. 267, 765 S.E.2d 369 (2014)(decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion in finding that the defense intentionally placed the defendant's general character in issue and triggered the state's right to cross-examine a character witness about the defendant's criminal history as although defense counsel may not have specifically aimed at eliciting character testimony, the door was opened when defense counsel did not object or move to strike the testimony that the defendant was a man of integrity as nonresponsive, and, in fact, presented 11 character witnesses. Montgomery v. State, 350 Ga. App. 244, 828 S.E.2d 620 (2019).

When defendant put defendant's character in issue by attempting to explain defendant's actions as resulting from devotion to defendant's church, admission of evidence of prior convictions was proper. Language v. State, 169 Ga. App. 649, 314 S.E.2d 484 (1984) (decided under former O.C.G.A. § 24-2-2).

Testimony about the characteristics of spousal abuse and a statement that defendant fit the profile of a spouse abuser was properly admitted in defendant's trial for felony murder and aggravated assault of defendant's spouse after defendant claimed the defense of an accident, thereby putting defendant's character into evidence; the court found such testimony was relevant to rebut defendant's claimed defense. Jones v. State, 276 Ga. 253, 577 S.E.2d 560 (2003) (decided under former O.C.G.A. § 24-2-2).

Although the general character of a party and the party's conduct in other transactions were usually irrelevant, the trial court did not err in concluding that defendant's counsel rendered effective assistance and was not ineffective for not objecting to the codefendant's testimony that defendant was not employed and sold drugs for a living, as such testimony, although incidentally involving defendant's character, went to the very central issue in the case of whether defendant was dealing drugs, and, thus, defendant's counsel could not be faulted for not making an objection that would have been meritless because such testimony was admissible. Pitts v. State, 260 Ga. App. 553, 580 S.E.2d 618 (2003) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err by allowing the state to cross-examine the defendant's biological daughter about having previously worked as a stripper and having abused drugs because the evidence was offered by the state in rebuttal to the daughter's testimony after the defendant intentionally elicited the testimony as to the defendant's and the daughter's own good character; since the only conceivable purpose of the questions defense counsel asked the daughter was to elicit testimony concerning the character of the defendant and the daughter, the trial court did not err when the court held that the state could introduce rebuttal evidence on the same subject. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77 (2010) (decided under former O.C.G.A. § 24-2-2).

State's introduction of evidence of the defendant's two prior arrests was not improper since the only conceivable purpose of defense counsel's questions to a case agent was to elicit testimony concerning the defendant's character, defense counsel opened the door to the state's rebuttal character evidence on the same specific subject. Green v. State, 298 Ga. App. 17, 679 S.E.2d 348 (2009) (decided under former O.C.G.A. § 24-2-2).

Evidence of abuse of ex-spouse properly admitted.

- In the defendant's trial for the murder of the defendant's spouse, even assuming that the trial court erred in permitting the defendant's ex-spouse to testify pursuant to O.C.G.A. § 24-4-404(b), the evidence of the defendant's abuse of the defendant's ex-spouse was harmless because similar evidence regarding the victim was already admitted. Leili v. State, 307 Ga. 339, 834 S.E.2d 847 (2019).

Admission of defendant's videotaped statement in which defendant implicated oneself in the commission of other crimes did not improperly place defendant's character in issue. Griffin v. State, 243 Ga. App. 282, 531 S.E.2d 175 (2000) (decided under former O.C.G.A. § 24-2-2).

Evidence properly admitted as res gestae and did not amount to bad character evidence.

- Introduction of evidence regarding crimes for which the defendant was not charged, specifically two checkbooks that were recovered from the defendant's residence at the time of the arrest, and testimony of the defendant's involvement in two uncharged robberies, did not amount to bad character evidence, but was part of the res gestae; moreover, pretermitting whether the trial court properly admitted the aforementioned evidence, any error arising from that admission was harmless. Cartledge v. State, 285 Ga. App. 145, 645 S.E.2d 633 (2007) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion when the court allowed a passenger in the defendant's car to testify that the defendant "always ran red lights," as such was not used for improper character evidence under former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), but rather, as part of the res gestae of the moments described by the passenger, whereupon a police officer had to swerve away from the defendant's vehicle and the officer eventually died from injuries sustained in a subsequent crash; further, any error in the admission thereof was harmless due to the overwhelming amount of evidence of the defendant's guilt. Potts v. State, 296 Ga. App. 242, 674 S.E.2d 109 (2009) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err by ruling that the state was not required to redact from a recording allegedly irrelevant and prejudicial statements the defendant made during the course of the offense; evidence of statements made by the defendant during the commission of the offense are admissible as part of the res gestae of the crime even if the evidence puts the defendant's character in evidence. Ware v. State, 308 Ga. App. 24, 707 S.E.2d 111 (2011) (decided under former O.C.G.A. § 24-2-2).

Trial counsel was not deficient for failing to object to the victim's testimony regarding the defendant's excessive alcohol consumption, mental health problems, and possession of a handgun because the evidence was part of the res gestae of the numerous incidents of prior difficulties between the victim and the defendant; the evidence was relevant and admissible, even if the evidence incidentally placed the defendant's character in issue. Billington v. State, 313 Ga. App. 674, 722 S.E.2d 395 (2012) (decided under former O.C.G.A. § 24-2-2).

Evidence properly admitted to establish defendant's identity and appearance, and did not amount to bad character evidence.

- Trial court did not err in denying a motion in limine to exclude the testimony of a state witness that allegedly placed the defendant's character in issue because the testimony was relevant to establish the defendant's identity and appearance on that date of the charged crime, and was not rendered inadmissible merely because the testimony incidentally placed the defendant's character in issue. Moreover, the defendant's trial counsel conceded that the witness's testimony regarding the description was admissible. Buice v. State, 289 Ga. App. 415, 657 S.E.2d 326 (2008) (decided under former O.C.G.A. § 24-2-2).

Bad character evidence improperly admitted.

- Trial court erred in permitting a witness to testify that the witness saw the defendant with a pistol because the witness testified that the young defendant pulled out the gun while in a group of people at a shopping mall, and such testimony imputed bad character to the defendant. The trial court admitted the bad character evidence after defense counsel inquired into how the police had procured the witness's statement, but that inquiry had no bearing on the defendant's character and thus did not open the door to permit the introduction of character evidence. Lee v. State, 308 Ga. App. 711, 708 S.E.2d 633 (2011) (decided under former O.C.G.A. § 24-2-2).

Limiting instruction proper.

- Limiting instruction on similar transaction evidence was properly given as the instruction was substantially the same as an approved pattern and did not direct the jury that the jury could consider similar transaction evidence to show any element of the offense charged in the indictment. Miller v. State, 281 Ga. App. 354, 636 S.E.2d 60 (2006), cert. denied, No. S07C0087, 2007 Ga. LEXIS 106 (Ga. 2007) (decided under former O.C.G.A. § 24-2-2).

Claim waived.

- Appeals court rejected the defendant's contention that the trial court erroneously admitted character evidence consisting of the defendant's statement made to a special agent regarding past cocaine use and distribution, when at trial, counsel raised a delayed objection arguing that such was inculpatory, and the objection was not only untimely but also failed to state the specific grounds raised on appeal; moreover, because the defendant later admitted to making the statement, any error in admitting the special agent's testimony was harmless. Henley v. State, 281 Ga. App. 242, 635 S.E.2d 856 (2006) (decided under former O.C.G.A. § 24-2-2).

Despite the defendant's claim that the trial court erred by denying a mistrial based on an improper character reference in violation of former O.C.G.A. § 24-2-2 (see now O.C.G.A. §§ 24-4-404 and24-4-405), because counsel failed to do anything more than move for a mistrial following the challenged statement and specifically request a curative instruction, no error resulted from the denial of the motion. Johnson v. State, 285 Ga. App. 590, 646 S.E.2d 760 (2007) (decided under former O.C.G.A. § 24-2-2).

Because the defendant did not contend at trial that testimony was improper character evidence or violated the defendant's Sixth Amendment right of confrontation, those bases for objections were not preserved for review on appeal. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012) (decided under former O.C.G.A. § 24-2-2).

Counsel was not ineffective in failing to object to statements that might have impugned defendant's character, and hence the defendant was properly denied a new trial on those grounds. Page v. State, 287 Ga. App. 182, 651 S.E.2d 131 (2007) (decided under former O.C.G.A. § 24-2-2).

Trial counsel was not ineffective for failing to move for a mistrial when a state's witness interjected bad character evidence because the witness's improper remarks were fleeting, unsolicited, and nonresponsive to the prosecutor's examination questions, and since the defendant did not show that the defendant was otherwise entitled to a mistrial based upon the circumstances, trial counsel's failure to pursue a meritless motion does not constitute ineffective assistance of counsel; the trial court sustained the objections to the improper testimony and instructed the prosecutor and witness to restrict the examination and responses, the witness and prosecutor complied with the trial court's instructions, and there was no further mention of the bad character evidence. Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158 (2011) (decided under former O.C.G.A. § 24-2-2).

Defendant failed to establish that there was a reasonable probability that, but for the alleged deficiencies of trial counsel, the outcome of the trial would have been different because even assuming that trial counsel performed deficiently by failing to object to character evidence, the defendant failed to show a reasonable probability that the outcome of the trial would have been different; the evidence of the crime charged was overwhelming. Lowe v. State, 310 Ga. App. 242, 712 S.E.2d 633 (2011) (decided under former O.C.G.A. § 24-2-2).

Defendant failed to demonstrate that trial counsel rendered ineffective assistance by failing to challenge the admission of bad character evidence against a codefendant because the defendant failed to call trial counsel as a witness during the motion for new trial hearing, and the record supported the trial court's finding that counsel made a conscious, strategic decision not to oppose the admission of evidence of the codefendant's cocaine conviction. Smith v. State, 316 Ga. App. 175, 728 S.E.2d 808 (2012) (decided under former O.C.G.A. § 24-2-2).

Evidence admissible to impeach witness.

- Trial court did not abuse the court's discretion in admitting bad character evidence because the testimony of the defendant's witness called into question the truthfulness of the state's witnesses; therefore, evidence of an incident where the defendant allegedly possessed a knife in the witness's presence was admissible for purposes of impeaching the witness. Pate v. State, 315 Ga. App. 205, 726 S.E.2d 691 (2012), cert. denied, No. S12C1308, 2012 Ga. LEXIS 1027 (Ga. 2012), appeal dismissed, 2020 U.S. App. LEXIS 3372 (11th Cir. Ga. 2020) (decided under former O.C.G.A. § 24-2-2).

3. Specific Crimes

a. Assault, Battery, and Homicide Crimes

Proper admission of similar transaction evidence.

- In a prosecution for aggravated assault, under O.C.G.A. § 16-5-21, and possession of a knife during the commission of a crime, under O.C.G.A. § 16-11-106(b)(1), evidence that defendant stabbed another in an incident eight years previously was admissible to show whether defendant intended to threaten or harm the victim when defendant brandished a knife, and the evidence was not more prejudicial than probative, given the prior incident's relevance to a necessary element of the current crimes. Ledford v. State, 275 Ga. App. 107, 620 S.E.2d 187 (2005) (decided under former O.C.G.A. § 24-2-2).

During the defendant's trial for malice murder and drug-related offenses, the trial court did not abuse the court's discretion in admitting as similar transaction evidence testimony regarding the defendant's previous arrest on a charge of possession of cocaine with intent to distribute and a prior shooting incident because a drug sting was similar to the cocaine trafficking in that both involved relatively recent arrangements for appellant to sell cocaine, and the shooting incident was probative of defendant's inclination towards unprovoked gun violence; the similar transactions were offered to prove, inter alia, intent and state of mind, the trial court admitted the evidence for those limited purposes only, and the trial court instructed the jury accordingly. Moore v. State, 288 Ga. 187, 702 S.E.2d 176 (2010) (decided under former O.C.G.A. § 24-2-2).

Trial court did not abuse the court's discretion by admitting evidence of prior molestation acts upon a minor victim witness because the jury could have concluded by a preponderance of the evidence that the defendant committed the acts described by the witness and the probative value was great based on the overall similarity of the acts, each involved inappropriate sexual contact between the defendant and a child of similar age to whom the defendant gained access through a relationship with the child's mother. Dixon v. State, 341 Ga. App. 255, 800 S.E.2d 11 (2017).

Trial court did not abuse the court's discretion in ruling that evidence of the 1993 murder was admissible as the evidence was similar transaction evidence as the state expressly sought to introduce evidence of the 1993 murder for an appropriate purpose, there was no question that the defendant committed the murder, and, in both instances, the defendant used a gun to shoot someone in the presence of one's peers, the defendant did so with little provocation, and the defendant had engaged in drug transactions with the victim. Norman v. State, 303 Ga. 635, 814 S.E.2d 401 (2018).

Admission of similar transaction proper.

- Because the state adequately showed the connection between the murder of one victim, and the murder charged in the instant proceeding, specifically embedded in the defendant's proffered motive that the killing of the victim in the instant proceeding was committed to prevent evidence from being introduced against the defendant in the first killing, the similar transaction evidence was properly allowed; hence, the similar transaction did not amount to improper character evidence. Young v. State, 281 Ga. 750, 642 S.E.2d 806 (2007) (decided under former O.C.G.A. § 24-2-2).

In a trial for felony murder, aggravated assault, and possession of a firearm during the commission of a felony, the trial court properly allowed the state to introduce as similar transaction evidence an aggravated assault the defendant committed four years earlier; both the old assault charge and crimes for which the defendant was on trial involved violent assaults committed by the defendant with the help of young, unarmed accomplices, involved the defendant's use of a firearm and demand for valuables, and targeted business people within the same five-mile area during morning work hours. Edwards v. State, 282 Ga. 259, 646 S.E.2d 663 (2007) (decided under former O.C.G.A. § 24-2-2).

Trial court did not err in admitting evidence of the 1999 incident in which the defendant was standing on the defendant's ex-girlfriend's porch with the ex-girlfriend, the ex-girlfriend's daughter, and other children when the defendant pulled out a handgun, pointed the handgun at the people on the porch, and pulled the trigger, although the gun did not fire, because, in both the current and prior incident, the defendant pulled out a handgun and aimed the handgun at a person with whom the defendant had a dispute, in a residential area, ignoring the presence of innocent bystanders, including a child. Brown v. State, 29