Zaino v. State

Carley, Presiding Judge. Appellant was tried before a jury and found guilty of driving under the influence and several other traffic offenses. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts. Appellant’s sole enumeration of error relates to the admission of evidence of his prior conviction in 1989 for driving under the influence. He urges that the facts underlying his prior conviction are not sufficiently similar to those underlying the instant prosecution. There are dissimilarities between the prior and instant offenses. In the prior offense, appellant was shown to have driven in a reckless manner, but no collision occurred. In the instant offense, two vehicles were struck. Whereas appellant had previously agreed to take an intoximeter test, he had refused to do so in the instant case. However, there is no requirement that the previous and instant offenses be identical. See McGowan v. State, 198 Ga. App. 575, 577 (2) (402 SE2d 328) (1991). “The 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 it “ ‘is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . [Cit.]” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). “In the case at bar, we find sufficient similarity between the charged crime and the prior offense, as on both occasions appellant was observed driving in an unsafe manner [in] late [afternoon or early evening] and was shown to be driving under the influence of alcohol. Accordingly, we find the evidence of the prior DUI was admissible to show course of conduct. [Cit.]” Blane v. State, 195 Ga. App. 504 (2) (393 SE2d 759) (1990). [419] Decided September 8, 1992. Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant. Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Assistant Solicitor, for appellee. Judgments affirmed. Pope and Johnson, JJ., concur.