Opinion
A98A1729.
DECIDED NOVEMBER 6, 1998.
Aggravated assault, etc. Dougherty Superior Court. Before Judge Gray.
John L. Tracy, for appellant.
Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.
John E. Mobley appeals his conviction of aggravated assault and cruelty to children following a jury trial. He contends that the trial court erred in failing to give, without a request, a limiting instruction regarding the treatment of similar transaction evidence contemporaneous with the introduction of that evidence. For the reasons set forth below, we affirm.
The issues of the giving of a limiting instruction in connection with similar transaction evidence, the necessity of the defendant requesting such charge in writing, and the timing of the giving of a limiting charge where required, have been before the appellate courts in numerous cases recently.
Our Supreme Court's recent decisions in State v. Belt, 269 Ga. 763 (___ S.E.2d ___) (1998) (Belt II) and State v. Hinson, 269 Ga. 862 ( 506 S.E.2d 870) (1998) (Hinson II), addressed issues related to limiting instructions and similar transactions. In Belt v. State, 227 Ga. App. 425 (1) ( 489 S.E.2d 157) (1997) (Belt I), no limiting instruction was requested by the defendant or given by the trial court. The Court of Appeals reversed, stating that a limiting instruction must be given by the trial court even absent a written request by the defendant, and further provided that the better practice would be for the trial court to give such charge at the time the evidence is introduced.
In Hinson v. State, 229 Ga. App. 840, 842 (3) ( 494 S.E.2d 693) (1997) (Hinson I), the Court of Appeals reversed, holding that even though the trial court gave a limiting instruction during its general charge, "the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence" (Emphasis supplied.) Hinson I purported to be controlled byBelt I, but, in fact, made compulsory, that which was recommended in Belt I.
Our Supreme Court granted certiorari in both these cases. InBelt II, the Supreme Court held that it is not reversible error for a trial court not to instruct a jury at any time that similar transaction evidence admitted for a limited purpose must be considered only for that limited purpose, absent a proper written request by a defendant for such charge. The Supreme Court further noted however, "that, although a trial judge is not required in the absence of a request to give a limiting instruction when similar transaction evidence is admitted, it would be better for the trial judge to do so." Belt II, supra at ___.
In Hinson II, our Supreme Court held that "the Court of Appeals erred in requiring that a trial court give a contemporaneous limiting instruction without request. Regardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request to the trial court for such a charge." Hinson II, supra at ___.
Neither Belt II nor Hinson II specifically answer the question of whether the trial court is required to give a limiting instruction at the time the similar transaction evidence is introduced where timely and properly requested, rather than as a part of the closing charge.
This case is controlled by Hinson II in which the Supreme Court held it was not reversible error for a trial court to fail to give a limiting instruction on similar transaction evidence at the time of its admission, in the absence of a request to do so. A timely request to charge is necessary regardless of when the charge is to be given. Here, Mobley did not request that a limiting instruction be given until the parties rested, at which time the instruction was given. Like the defendant in Hinson, Mobley received a limiting instruction during the court's general charge to the jury.
Judgment affirmed. McMurray, P.J., and Eldridge, J., concur.