Odister v. State

McMurray, Presiding Judge. Defendant was charged by indictment with the offenses of burglary, aggravated assault, and aggravated sodomy. The jury returned guilty verdicts on the charges of burglary and aggravated assault. On the aggravated sodomy charge, the jury returned a verdict of guilty of the lesser included offense of “attempt to commit aggravated sodomy.” In this out-of-time appeal, defendant’s sole enumeration of error challenges the admission into evidence of a prior conviction of rape, as a similar transaction to the aggravated sodomy charge. Held: 1. The dissent questions this court’s jurisdiction to decide the case sub judice. Consequently, prior to addressing the merits of defendant’s sole enumeration of error, we are compelled to address the issue of the out-of-time appeal raised by the dissent. The record reveals that the trial court granted defendant’s motion for an out-of-time appeal reciting in its order that the grant was based on “good and sufficient reason having been shown.” The court did not elaborate further and no transcript of the testimony before the trial court is included in the record on appeal. The case law is absolutely clear that absent a transcript in the record demonstrating an appellant’s failure to present evidence to support the trial court’s order, this court is required to assume the trial court’s grant of the out-of-time appeal was proper. Conway v. State, 183 Ga. App. 573 (1) 574 (359 SE2d 438) (1987); Johnson v. State, 182 Ga. App. 477 (1), 478 (356 SE2d 101) (1987). Dissents were written in both Conway and Johnson, asserting the exact same position as raised here, and in each case that position was soundly rejected by this court. See Conway, supra at 575; Johnson, supra at 479. See also Jenkins v. State, 187 Ga. App. 608, 609 (371 SE2d 132) (1988), in which a dissent was also written at 610. Although these cases are referenced in the dissent for comparison purposes, these cases are not distinguishable from the case sub judice but rather completely control the issue adversely to the dissent. In view of the fact that Conway and Johnson and Jenkins, have not been overruled, “It is the duty of this court to apply the law regardless of individual disagreement with the established rule to be applied.” Cole v. Cates, 113 Ga. App. 540, 545 (149 SE2d 165) (1966). 2. “Evidence of an independent crime is admissible if two conditions are satisfied: the defendant is shown to be the perpetrator of the independent crime, and there is a similarity between the independent crime and the offense charged such that proof of the former tends to prove the latter. Williams v. State, 251 Ga. 749, 755 (312 SE2d 40) (1983). Evidence of a similar crime is admissible to show identity, motive, plan, scheme, bent of mind, and course of conduct. Head v. State, 246 Ga. 360, 364 (271 SE2d 452) (1980). It is admissible to [899] show the defendant’s lustful disposition and to corroborate the victim’s testimony. Milner v. State, 180 Ga. App. 97, 101 (348 SE2d 509) (1986).” Holloway v. State, 187 Ga. App. 716 (1), 717 (371 SE2d 259). To satisfy the first condition the State presented evidence of defendant’s conviction of the prior offense. The State satisfied the second condition by establishing the similarities between the offenses. In both instances, the defendant was armed with a knife, held the victim by the neck and threatened to kill her. Both victims received significant physical injury from assaults which preceded any sexual contact. (The victim of the independent crime was beaten, while the victim in the case sub judice was choked and cut.) Contrary to defendant’s argument, we find a logical connection between the independent crime and the offense charged tending to prove the offense charged. Compare Wimberly v. State, 180 Ga. App. 148, 149 (348 SE2d 692). See Kickery v. State, 185 Ga. App. 274, 276 (1) (363 SE2d 805); Luckey v. State, 185 Ga. App. 262, 263 (3) (363 SE2d 791); and Bernyk v. State, 182 Ga. App. 329, 330 (2), 331 (355 SE2d 753). Judgment affirmed. Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.