Thomas v. State, 557 S.E.2d 483 (Ga. Ct. App. 2001). · Go Syfert
Thomas v. State, 557 S.E.2d 483 (Ga. Ct. App. 2001). Cases Citing This Book View Copy Cite
23 citation events (23 in the last 25 years) across 1 distinct court.
Strongest positive: Herbert L. Cousin, Jr. v. Adrian C. Tubbs (gactapp, 2021-03-16)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 11 distinct citers.
discussed Cited as authority (rule) Herbert L. Cousin, Jr. v. Adrian C. Tubbs
Ga. Ct. App. · 2021 · confidence medium
Moreover, “[e]numerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” (Citation and punctuation omitted.) Thomas v. State, 253 Ga. App. 58, 62 (3) ( 557 SE2d 483 ) (2001).
cited Cited as authority (rule) Fletcher v. State
Ga. Ct. App. · 2014 · confidence medium
Thomas v. State, 253 Ga. App. 58, 63 (4) ( 557 SE2d 483 ) (2001).
cited Cited as authority (rule) Christopher Fletcher v. State
Ga. Ct. App. · 2014 · confidence medium
Thomas v. State, 253 Ga. App. 58, 63 (4) ( 557 SE2d 483 ) (2001).
discussed Cited as authority (rule) Gant v. State (2×)
Ga. Ct. App. · 2008 · confidence medium
See Corn v. State, 240 Ga. 130, 136 (4) ( 240 SE2d 694 ) (1977); Thomas v. State, 253 Ga. App. 58, 61 (2) ( 557 SE2d 483 ) (2001).
cited Cited as authority (rule) Strahan v. State
Ga. Ct. App. · 2005 · confidence medium
Thomas v. State, 253 Ga. App. 58, 60 (1) ( 557 SE2d 483 ) (2001) (prior armed robbery not similar to assault on pizza deliveryman and theft of pizzas).
cited Cited as authority (rule) Jones v. Chatham County Board of Tax Assessors
Ga. Ct. App. · 2004 · confidence medium
Corp. of Lanier v. Doster, 254 Ga. App. 169, 170 (1) ( 561 SE2d 846 ) (2002); Thomas v. State, 253 Ga. App. 58, 61 (2) ( 557 SE2d 483 ) (2001). 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993).
discussed Cited as authority (rule) Williams v. State
Ga. Ct. App. · 2002 · confidence medium
For the purpose of our analysis, we assume that the court did not consider the excluded testimony 5 See Tucker v. State, 222 Ga. App. 517, 518 (3) ( 474 SE2d 696 ) (1996); Hill v. State, 232 Ga. App. 561, 562 ( 502 SE2d 505 ) (1998) (physical precedent only). 6 See Massey v. State, 272 Ga. 50, 52 (4) ( 525 SE2d 694 ) (2000). 7 Compare Jones v. State, 251 Ga. App. 285, 286 (1) ( 554 SE2d 238 ) (2001) (trial court properly excluded evidence based upon showing of bad faith and prejudice to the State). 8 Thomas v. State, 253 Ga. App. 58, 60 (1) ( 557 SE2d 483 ) (2001). 9 See Massey, supra; Beck v.…
discussed Cited "see, e.g." Judice v. State (2×)
Ga. Ct. App. · 2011 · signal: see, e.g. · confidence medium
See, e.g., Thomas v. State, 253 Ga. App. 58, 63 (4) ( 557 SE2d 483 ) (2001) (holding that because the defendant was acquitted on the armed-robbery charge, and instead convicted on the lesser-included offense of theft by taking, the issue of whether the trial court erred in failing to direct a verdict of acquittal as to the armed-robbery charge was moot).
discussed Cited "see, e.g." Judice v. State (2×)
Ga. Ct. App. · 2011 · signal: see also · confidence medium
NOTES [1] See, e.g., Davis v. State, 275 Ga.App. 714 (1), 621 S.E.2d 818 (2005). [2] OCGA § 16-6-3(a). [3] OCGA § 16-6-4(a)(1). [4] Terry v. State, 293 Ga.App. 455, 455 , 667 S.E.2d 109 (2008) (punctuation omitted). [5] See, e.g., Ferguson v. State, 307 Ga.App. 232, 233 , 704 S.E.2d 470 (2010); Dennis v. State, 294 Ga.App. 171, 171 , 669 S.E.2d 187 (2008). [6] Ferguson, 307 Ga.App. 232 (1), 704 S.E.2d 470 (punctuation and citation omitted); see also Wilson v. State, 304 Ga.App. 743, 745 (1), 698 S.E.2d 6 (2010) (same). [7] Ferguson, 307 Ga.App. at 233 (1), 704 S.E.2d 470 (punctuation and cit…
discussed Cited "see, e.g." Naillon v. State (2×)
Ga. Ct. App. · 2005 · signal: compare · confidence medium
Johnson, P. J., and Barnes, J., concur. 1 See Gibson v. State, 243 Ga. App. 610 (1) ( 533 SE2d 783 ) (2000). 2 See id. 3 (Punctuation omitted.) Drake v. State, 274 Ga. App. 882 (1) ( 619 SE2d 380 ) (2005). 4 See Richardson v. State, 275 Ga. App. 320 ( 620 SE2d 522 ) (2005). 5 See id.; Gibson, supra at 611 (2) (a). 6 See Hudson v. State, 271 Ga. 477, 479 (2) ( 521 SE2d 810 ) (1999). 7 Id. 8 Williams v. State, 261 Ga. 640, 642 (2) (c) ( 409 SE2d 649 ) (1991); see also Stephens v. State, 261 Ga. 467, 468-469 (6) ( 405 SE2d 483 ) (1991). 9 See id.; Screven v. State, 203 Ga. App. 821, 821-822 (1) (…
discussed Cited "see, e.g." Goldsby v. State (2×)
Ga. Ct. App. · 2005 · signal: see also · confidence medium
See also Thomas v. State, 253 Ga. App. 58, 60 (1) ( 557 SE2d 483 ) (2001). 9 Johnson v. State, 255 Ga. App. 721, 724 (3) (a) ( 566 SE2d 440 ) (2002). 10 (Punctuation omitted.) Nealy v. State, 246 Ga. App. 752, 753 (1) ( 542 SE2d 521 ) (2000). 11 See Jones v. State, 256 Ga. App. 470, 472-473 (1), (2) ( 568 SE2d 807 ) (2002). 12 Shelton v. State, 252 Ga. App. 444, 448 (3) ( 556 SE2d 540 ) (2001). 13 See Crews v. State, 269 Ga. App. 814, 816 (2) ( 605 SE2d 381 ) (2004). 14 Patel v. State, 278 Ga. 403, 404-405 (2) ( 603 SE2d 237 ) (2004). 15 (Punctuation omitted.) Gumbs v. State, 258 Ga. App. 230,…
Thomas
v.
the State
A01A2198.
Court of Appeals of Georgia.
Dec 14, 2001.
557 S.E.2d 483
Alicia C. Head, for appellant., Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.
Eldridge, Andrews, Miller.
Cited by 11 opinions  |  Published
Eldridge, Judge.

A Fulton County jury found Scilentto Thomas guilty of aggravated assault and theft by taking. [1] . These offenses arose when Thomas arranged to have two men beat an Anthony’s Pizza deliveryman about the head and shoulders with a wooden stick and a metal pipe so that Thomas could obtain an order of chicken wings and four large pizzas for free. He appeals, claiming that the trial court erred in permitting the introduction of similar transaction evidence; per[*59] mitting the introduction of impermissible character evidence; permitting testimony in violation of reciprocal discovery provisions; and denying a motion for directed verdict upon the sufficiency of the evidence of armed robbery. Upon careful review, we affirm Thomas’ conviction.

1. We find merit in Thomas’ claim that the similar transaction was insufficiently similar to warrant admission into evidence.

Generally in a criminal trial, proof that the defendant committed a distinct, independent, and separate offense is highly and inherently prejudicial, irrelevant and inadmissible, even if it is a crime of the same sort for which the defendant is being tried, unless there is some logical connection between the independent act and the crime for which the defendant is being tried, from which it can be said that proof of one tends to establish the other. The prosecutor seeking to introduce a defendant’s independent offense must establish in a pre-trial hearing, among other things, the similarity between the independent act and the crime for which the defendant is being tried. [2]

In this case, the prior act introduced at trial involved a recently committed (but unindicted) armed robbery wherein Thomas put a gun to a convenience store clerk’s head and demanded money; upon the clerk’s compliance, Thomas made off with $700. As it applies to the instant case, the State claimed that the prior act demonstrated a common “scheme or plan.” The State argued similarity between the armed robbery of the store clerk and the beating of the pizza man in that “[t]hey are similars in that the case of Scilentto Thomas these happened within a month and a half time frame. It was in the same general vicinity. . . . And, again, the third thing wherein it is similar is that it demonstrates his attempt to obtain money forcefully from people.” We cannot, however, fathom any similarity between the two acts so as to demonstrate a coherent “scheme or plan,” especially since — contrary to the State’s representation at the Uniform Superior Court Rule 31.3 (B) hearing — the instant act did not involve an “attempt to obtain money forcefully from people.” It is true that a prior act need not be identical in order to be admissible on the trial of a case. [3] It also remains very true that the test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. [4] But we do not abandon the[*60] principle that there must be some “logical connection” between the independent act and the charged offense so that proof of one tends to prove the other through a nexus other than the fact that both acts show defendant’s bad character. [5]

In the current incident as contrasted with the prior act: there were two physical assailants, not one; a stick and pole were used, not a handgun; pizza was the motive, not money; an apartment was involved, not a business establishment; the victim was beaten, not threatened with a firearm; and, while clearly a party to the crime, Thomas did not commit the actual assault on the victim as he did in the prior act, but instead arranged/urged its commission by others so that he would not have to pay for his food. The only apparent similarities between the independent act and the charged offense were that both involved a “taking” and there was a general proximity in time and place; this is insufficient to establish a common “scheme or plan” to do an act. Since the State failed to demonstrate a logical connection between the prior act and the indicted offenses so as to show a common scheme or plan, the trial court erred in admitting the similar transaction evidence.

Nevertheless, “error alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.” [6] The erroneous admission of similar transaction evidence “may be harmless if there is such overwhelming evidence of the defendant’s guilt that it is highly probable that the error did not contribute to the guilty verdict.” [7]

In that regard, a witness at trial positively identified Thomas as the person who came to his apartment at the Charlestown Homes on the incident date to use the telephone and order pizza. The Anthony’s Pizza delivery ticket was introduced showing delivery to apartment 27-E at the Charlestown Homes, which apartment was unrented and supposed to be unoccupied at the time of the incident. The victim positively identified Thomas as the man who answered the door of apartment 27-E and took the pizza from him. Thomas then told the deliveryman to “come on in” while he got money to pay for the food. When the deliveryman did so, two accomplices came from behind the front door and beat the victim about the head and shoulders, one with a pipe and one with a wooden stick. The victim testified that when he fought back, one of the assailants looked at Thomas who was standing on the stairs and stated, “he’s fighting back.” After being hit several more times, the victim backed out of the apartment[*61] and got into his truck. He testified that before he left, he looked back at the apartment and Thomas “was coming, he came down, went through the hallway with the food still in his hand. . . . Kind of smirk, giggle on his face. Headed in towards the living room part.” One of the assailants, fóurteen-year-old Carlos Brown, pled guilty to the offense and positively identified Thomas as the person who planned the robbery of the pizza man; gave Brown the stick with which to hit the victim; and told Brown and the other assailant, Marcus Franklin, to hit the victim after Thomas got the pizza. No evidence was offered to rebut the State’s case.

“Given such unequivocal eyewitness identification, it is highly unlikely that the admission of the similar transaction evidence contributed to the verdict.” [8] This is especially true since the similar transaction went more to the offense of armed robbery, for which offense the jury found Thomas not guilty. “Thus, this claim of error presents no basis for reversal.” [9]

2. Next, Thomas contends that his character was impermissibly put into issue by the admission of evidence of a separate crime of “criminal trespass” when the manager of the Charlestown Homes testified that apartment 27-E was vacant on the incident date and that neither Thomas nor anyone else had authority to be in that apartment.

There is no record of any objection being made to such testimony. “Because [Thomas] made no. contemporaneous objection, he cannot now raise this error. The failure to object to the admission of evidence at trial constitutes a waiver of the right to raise the issue on appeal.” [10]

Further, the testimony about which Thomas complains was part of the circumstances surrounding the commission of the charged offense. As such, it was admissible as part of the res gestae of the crime. [11]

Finally, the apartment manager did not testify that Thomas or anybody else was in apartment 27-E; she testified only that the apartment was supposed to be vacant. She knew nothing about the incident and did not know Thomas. On its face, then, the apartment manager’s testimony did not “allege . . . that he committed the crime of criminal trespass,” as Thomas asserts before this Court. Accordingly, this enumeration of error has no factual basis.

3. Thomas contends that “the trial court erred by failing to grant[*62] appellant’s motion to exclude the defendant’s statement after the state violated their reciprocal discovery obligations by failing to turn over the statement until the day of trial.” What follows the enumerated error is a virtually unintelligible argument that incorporates Thomas’ objection to testimony from a similar transaction witness, Detective Strozier, because Strozier’s name was not served ten days prior to trial; Thomas’ claim that some of Strozier’s notes were not included in the supplemental police report served upon Thomas and thus discovery was violated; a Brady 12 claim that the State withheld exculpatory evidence: “we believe [Strozier’s notes] contained crucial evidence that they’re [the State] not submitting in court as to the identity of the perpetrator in that crime [similar transaction] and things that led to the identity or identification of the perpetrator”; and a claim that the trial court erred in not striking Strozier’s testimony in its entirety for discovery violations.

However, nowhere in such argument does Thomas address any discovery violation involving a statement made by “defendant” to any person; nowhere does Thomas cite to any place in the record where a statement made by him was introduced into evidence; and nowhere does Thomas cite to a trial court’s ruling with regard to the exclusion of any statement made by him. In short, Thomas’ argument has nothing whatsoever to do with his error as enumerated. “Enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” [13]

Further, we have reviewed the voluminous 51 pages of discovery served upon Thomas by the State, which included all police reports; supplemental police reports; inculpatory statements from nonwitnesses and accomplices; evidence property records; juvenile reports on nontestifying accomplices; a similar transaction notice with attached police reports; and supplemental similar transaction police reports. We find that the discovery served was more than sufficient to satisfy the requirements of OCGA § 17-16-4. In an apparent attempt not to “violate” discovery, it appears that more information than required by statute was supplied. Such excess, while unnecessary, certainly weakens considerably any defense claim that more should have been given or that the State withheld exculpatory information.

We also find as unmeritorious Thomas’ claim of a Brady violation. Nothing in Strozier’s testimony and the several similar transaction police reports that were served on Thomas provides any basis for a belief that Strozier’s notes would be other than inculpatory. And Thomas’ asserted, completely unsupported “belief” to the contrary is[*63] simply insufficient to show that the State withheld exculpatory evidence in violation of Brady. [14] In fact, it was established through Thomas’ cross-examination that Strozier’s notes would show that the similar transaction victim easily identified Thomas as the perpetrator of the armed robbery because Thomas was a regular customer at the convenience store. The similar transaction victim testified at trial to the same fact. Thus, not only is this evidence clearly inculpatory, there is no Brady violation when disputed evidence is brought out at trial. [15]

Decided December 14, 2001. Alicia C. Head, for appellant. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

Finally, Thomas failed to request a continuance, an opportunity to review any of Detective Strozier’s notes, or any other form of relief other than to strike Strozier’s testimony in its entirety or, alternatively, for the court to grant a mistrial.

Before the harsh sanction of excluding evidence will be imposed by the trial court under OCGA § 17-16-6, the defendant must show both that he was prejudiced and that the state acted in bad faith. [Thomas] did not make either showing. Consequently, the trial court did not abuse its discretion, under OCGA § 17-16-6, when it admitted [Detective Strozier’s testimony] over defense counsel’s objection. [16]

4. The jury acquitted Thomas of armed robbery under Count 1 of the indictment and, instead, found him guilty of the lesser included offense of theft by taking. Accordingly, any claim of error regarding the trial court’s failure to direct a verdict on armed robbery is moot. [17]

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.
1

Thomas was indicted for armed robbery and found guilty of the lesser included offense of theft by taking.

2

(Citations omitted.) Hudson v. State, 271 Ga. 477, 479 (2) (521 SE2d 810) (1999).

3

Smith v. State, 264 Ga. 46 (2) (440 SE2d 188) (1994).

4

Farley v. State, 265 Ga. 622, 624 (458 SE2d 643) (1995).

5

Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

6

(Punctuation omitted.) Tanner v. State, 243 Ga. App. 640, 643 (2) (533 SE2d 794) (2000).

7

Moore v. State, 242 Ga. App. 249, 250 (1) (a) (529 SE2d 381) (2000).

8

Humphrey v. State, 249 Ga. App. 805, 807 (1) (549 SE2d 144) (2001).

9

Id.

10

(Punctuation omitted.) Priester v. State, 249 Ga. App. 594, 598 (3) (549 SE2d 429) (2001).

11

Myrick v. State, 242 Ga. App. 892, 894 (531 SE2d 766) (2000).

12

Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

13

(Punctuation omitted.) Gabbard v. State, 233 Ga. App. 122, 123 (2) (503 SE2d 347) (1998).

14

Merritt v. State, 248 Ga. App. 709, 713 (548 SE2d 427) (2001).

15

Davis v. State, 261 Ga. 382, 385 (8) (b) (405 SE2d 648) (1991).

16

(Footnote omitted.) Romero v. State, 247 Ga. App. 724, 726 (545 SE2d 103) (2001).

17

Moore v. State, 242 Ga. App. 208, 211 (2) (529 SE2d 210) (2000); Jennings v. State, 226 Ga. App. 461 (486 SE2d 693) (1997); Cornwell v. State, 193 Ga. App. 561 (1) (388 SE2d 353) (1989); Middlebrooks v. State, 191 Ga. App. 542, 543 (1) (382 SE2d 385) (1989).